2001 PLP 1226 (YLR)

Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 ref. M. Saleem Sahgal for Petitioners. A. Karim Malik for Respondents. Dates of hearing: 30th November; 1st and 4th December, 2000. By means of the present petition the petitioner, which is engaged in the business of providing pay phone services, seeks refund from the C.B.R. respondent No. 1, of an amount of Rs. 9,431,726 detailed in paragraph 8 of the writ petition. It is the case of the petitioner that for the purpose of its business it imported various items into Pakistan including phone cards with magnetic stripes. According to the petitioner, the phone cards were importable under the Head "Electrical Integrated Circuits, and Micro Assemblies" bearing Tariff Heading No. 85.42 in the Pakistan Customs Tariff. As a consequence, during the relevant period in which the imports were made by the petitioner, the rate of duty on the import of phone cards was 10% ad valorem. The Customs Department, however, categorized the imported phone cards under other tariff heads and, therefore, levied duty thereon at the rate of 35% ad valorem. At this juncture it is to be noted that relevant bills of entry relating to the imports made by the petitioner, have neither been placed on the record nor were the same available with learned counsel for the petitioner at the time of argument. The tariff heading, therefore, under which the petitioner made the imports of phone cards cannot be ascertained from the file.

2. It is, however, clear from the record that the petitioner continued to make imports of phone cards during the six-year period from 1993 to 1998. The amounts, contained in the table in paragraph 8 of the writ petition, were paid by way of import duty and sales tax on the imported phone cards. The admitted position, however, is that the petitioner did not, at any stage, challenge the departmental categorisation of the imported phone cards before any adjudicating authority set up under the Customs Act. A letter dated 29-7-1998 appears to have been addressed to the Secretary (Machinery), C.B.R., Islamabad, by Mian Nazir Azhar, Advocate, on behalf of the petitioner on the subject of the correct classification of pay phone cards. This letter refers to an earlier explanation, a copy of which is not available on the record. In this letter it has been asserted that phone cards, imported by some importers other than the petitioner, were being classified as chip cards under Tariff Heading 8542.1200 and were being charged to customs duty at the rate of 10% ad valorem. The said letter further asserted that the petitioner's imports were being wrongly classified under Tariff Head 8524.6000 and were thus being subjected to customs duty at the rate of 35 ad valorem. The purport of the aforesaid letter was to seek a change in the classification of the phone cards used in the operations of the petitioner. The request to the C.B.R. was for the stated purpose of avoiding future hardships to the petitioner.

3. The case of the petitioner, therefore, relates to difference of opinion between the petitioner on the one hand and the custom authorities on the other, relating to the correct classification under which phone cards, imported by the petitioner, were to be categorised for the purpose of the customs tariff. This matter squarely falls within the jurisdiction and competence of the customs authorities. As noted above, at no time did the petitioner challenge the classification of its phone cards, before the Customs Authorities. As a consequence, the imports over a six-year period, re-pained un-assailed. In these circumstances, at the very outset, learned counsel for the petitioner was asked to explain as to how the present writ petition was maintainable when the petitioner itself had not raised any objection before the Customs Authorities nor was any adjudication sought by the petitioner in respect of the contention which appears to have been raised only on 1998 as per contents of the letter, dated 29-7-1998 referred to above. Learned counsel argued that the mere existence of an administrative remedy was not sufficient to preclude its right to invoke the Constitutional jurisdiction of this Court. In support of this argument, he referred to the following cases:

Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan and others PLD 1998 SC 64, Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334, Pakistan through Secretary Finance and another v. Kohat Cement Co. and others PLD 1995 SC 659, Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121, Edulji Dinshaw Ltd. v. Income Tax Officer PLD 1990 SC 399, M/s Friends Sons and Partnership Concern v. The Deputy Collector, Central Excise and Sales Tax, Lahore and others PLD 1989 Lah. 337, Messrs Reezan Trading Co. v., Deputy Collector of Customs, Customs Port, Lahore and 2 others PLD 1988 Lah. 313, Muhammad Younus v. Chairman, Municipal Committee, Sahiwal and others PLD 1984 Lah. 345, Messrs Highway Petroleum Service (Regd.), Lahore v. Islamic Republic of Pakistan and others PLD 1977 Lah. 797, Muhammad Afzal & Son v. Federal Government of Pakistan and - another PLD -1977 Lah. 1327, Sallahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244, Messrs Usmania Glass Sheet Factory Ltd., Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to GOP Works Division and 2 others PLD 1972 SC 279, Anjuman-e-Ahmediya, Sargodha v. The Deputy Commissioner, Sargodha, etc. PLD 1966 SC 639, Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294, Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward, Lyallpur and another PLD 1963 SC 322, The Tariq Transport Co., Lahore v. The Sargodha Bhera Bus Service, Sargodha and 2 others PLD 1958 SC 437, State through Advocate General, N.-W.F.P., Peshawar v. Naeem Ullah Khan 1999 SCMR 143, Messrs Gadoon Textile Mills etc. v. WAPDA and others 1997 SCMR 641, Mst. Kalsoom Laik and others v. Assistant Commissioner and others 1996 SCMR 710, Messrs Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax Central, Karachi 1971 SCMR 128 and Dada Steel Mills v. Baluchistan Government and another 1983 CLC 571.

4. It is not necessary to burden this judgment with a discussion of each of the above-noted cases because the general principles laid down in, the cited precedents to regulate the exercise of the jurisdiction of this Court under Article 199 of the Constitution, are by now well-settled. The said general principles are to be considered and applied to the circumstances of each case.

5. In the light of the facts of this case, .as -set out above, I will only refer to two of the above-cited cases viz. Collector of Customs, Customs House, Lahore etc. v. Messrs S.M. Ahmed & Company (Pvt.) Ltd. (1999 SCMR 138) and Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan and others (PLD 1998 SC 64) on which much emphasis was laid by learned counsel for the petitioner. The case of Messrs S.M. Ahmed & Company (Pvt.) Ltd. (supra) also relates to the classification of imported goods but is clearly distinguishable on facts. Firstly, it is to be noted that in the said case import of wood was made in 1993 under one tariff heading while the Customs Authorities, upon examination of the imported wood, classified the same under a different heading. The importer immediately made a representation against the classification made by the customs authorities and requested the concerned Collector of Customs to refer the matter to the Chief of Customs, C.B.R., for determination of the correct classification. The importer's request was acceded to and the matter was referred to the C.B.R. forthwith. The C.B.R. itself confirmed the assessment made by the customs officials in respect of classification. This was done within a few months of the date of import. From the facts of the present case, as narrated above, it is evidence that the classification made by the customs authorities was never challenged by the importer. Even to date there has been no challenge to such classification before the customs authorities. The representation to the C.B.R. vide letter, dated 29-7-1998 was only made with the object of seeking rationalisation of the various headings of the customs tariff and was obviously aimed at future imports of phone cards. This is evident not only from the tenor of the said letter but also from the absence of any claim of refund in respect of the customs duty and - sales tax earlier paid by the importer and now being claimed in the present writ petition.

6. A further point of distinction is that in the precedent case the Honurable Supreme Court came to the conclusion that administrative remedies before the Customs Authorities would be illusory in view of the determination made by the C.B.R. supporting the classification made by the customs authorities in the said case. In the present case no such determination was sought from the C.B.R. Furthermore, at the very first instance to challenge was raised to the classification made by the customs authorities in respect of the phone cards imported by the petitioner. In the circumstances, the case of Messrs S.M. Ahmed & Company (Pvt.) Ltd., is of no avail to the petitioner.

7. The case of Pfizer Laboratories (supra) is also distinguishable. It is worth noting that in the precedent case there was no dispute between the importer and the Customs Authorities in respect of the tariff heading applicable to the goods imported by such importer. Furthermore, it is abundantly clear from the reported judgment in the case that there was no factual controversy on the question that the imported goods were exempted from the payment of customs duty and sales tax. The position admitted even by the Customs Authorities in the said case was that the importer had paid customs duty and sales tax which it was not liable to pay under the law. It was in these circumstances that the Honourable Supreme Court held that the provisions of sections 32 and 33, prescribing a period of limitation, were not sufficient per se, to impose a bar on the right of the importer to claim a refund. In the present case, however, it is clear that the Customs Authorities at all times had asserted their right to levy duty on the imported phone cards at the rate of 35 % . The assertion of the Customs Department, as noted above, was never challenged by the petitioner and, indeed, has not been challenged to date before the Customs Authorities. As such, there is no mistake in the present case, of the nature which was subject-matter of consideration by the Honourable Supreme Court in the case of Pfizer Laboratories Ltd.

8. Another important feature, which has distinguished the present case from the cited precedent is in respect of laches. In the precedent case the Honourable Supreme Court has held that an importer, who claims to have paid customs duty under a mistake, must, while invoking the Constitutional jurisdiction of a High Court, approach the Court promptly. In the present case the petitioner has admittedly been importing phone cards since 1993 and has been paying customs duties on such imports under tariff headings other than Heading 85.42 which it now claims to be the appropriate heading applicable to the phone cards earlier imported by it. The present petition was filed in November, 1999. It is thus clear that the petitioner has not approached this Court with the requisite promptitude required by the Honourable Supreme Court in the case of Pfizer Laboratories Ltd. In the circumstances, the cited case also is of no help to the petitioner.

9. On the other hand learned counsel for the respondents has argued that the present petition is not maintainable because the competent forums vested with jurisdiction to decide the point of contention between the petitioner and the Customs Authorities, were never approached. According to him, the Customs Act provides remedies for adjudication of any dispute raised by an importer relating to the correct classification of items imported by such importer. Furthermore, an independent tribunal headed by a former Judge of this Court, is functioning, before which an importer can file an appeal if he is aggrieved of an adjudication made by the Customs Authorities. Learned counsel for the respondents referred to the case titled Al- Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29) to support his contention that the present petition is not maintainable as the petitioner has not availed the remedies provided under the Customs Act. I have gone through the case cited by, learned counsel for the respondents and note that the ratio in the said case, is squarely applicable to the circumstances of the present petition. Furthermore, the cases, cited by learned counsel for the petitioner, which have been referred to in para. 3 above, also support the argument of learned counsel for the respondents that the present petition is not maintainable.

10. In view of the above discussion, I hold that the present petition is not maintainable. As a consequence, the same is dismissed with costs. H.B.T./T/52-L Petition dismissed.