This writ petition was admitted to regular hearing by order, dated 14-6-1999. It challenges levy and collection of sales tax and customs duty by the competent officer of the Central Board of Revenue ("C.B.R.") in respect of goods imported by the petitioner for use and consumption in Azad Jammu and Kashmir ("AJK"). It is averred in the petition that the Sales Tax Act, 1990 is not applicable to AJK where an adapted version is administered by the Azad Government of that country. Likewise goods imported by the petitioner for use and consumption in AJK are not subject to the levy of customs duty under the Customs Act, 1969. The provisions of the Customs Act ibid are referred to show instances whereby warehoused goods Of exporters are not liable to customs duty. On the analogy that the goods imported for AJK are also exported out of Pakistan, it is asserted that no customs duty is chargeable thereon. Admitting order 'of this Court refers to similar impugned action to be under the consideration by the Hon'ble Supreme Court under leave, granting order passed in C.P.L.A. No.1414 of 1998. This petition came up for hearing after considerable lapse of time on 23-11- 2004. By this date the hearing in the Hon'ble Supreme Court on the aforenoted matter had been concluded. Learned counsel appearing for the petitioner was directed to place on record a copy of the judgment given by Hon'ble Supreme Court in the said matter. Meanwhile the learned Deputy Attorney General raised an objection to the maintainability of the present petition ition before this Court. He urged that in essence the petition was concerned with the assessment orders levying the impugned duty and tax on goods imported by the petitioner vide the specified Bills of Entry filed in the Collectorate of Customs at Karachi. Accordingly he objected, that the petition be dismissed forthwith on account of provisions contained in Article 199(1), (a), (i) of Constitution on the ground that the respondent No.3 was a person performing functions outside the territorial jurisdiction of this Court.
2. As the matter has been admitted to regular hearing by this Court and because the referenced proceedings before the Hon'ble Supreme Court had also 'concluded, it was decided that the jurisdictional objection' raised by the learned DAG would be considered and decided along with substantive case on merits. The Hon'ble Supreme Court has rendered an illuminating and comprehensive judgment on the substantive controversy. It is delivered, inter alia, in C.A. No. 435 of 1999 in the case of Messrs Master Foam (Pvt.) Limited v. Govt. Of Pakistan. The challenge to the impugned levy has been rejected after considering a number of refined points raised on behalf of the appellant importers. These include more particularly, a challenge based on the "original package doctrine" formulated by USA Supreme Court and adopted by Supreme Court of India. The Apex Court noted that the said doctrine remained in vogue for a few years but was ultimately discarded by the respective Supreme Courts of both countries. On the other hand, in Pakistan the Apex Court in the case of Pakistan Textiles Mill Owners Association, Karachi v. Administrator of Karachi (PLD 1963 SC 137) considered and rejected the said doctrine. The original package doctrine cannot therefore form a lawful basis for relieving goods imported for AJK from the levy of the impugned sales tax and customs duty.
3. Faced with the foregoing judgment, the learned counsel for the petitioner requested that the objection raised by the learned DAG be accepted and the petition be returned for filing before a competent Court in Karachi.
4. The relief now prayed by the learned counsel for the .Petitioner cannot be granted because firstly, the jurisdictional objection cannot be accepted without determination and secondly, because the petitioner having first invoked the jurisdiction of this Court cannot on a settled principle of law be allowed subsequently to object the same jurisdiction. In the latter regard reference may be made to the judgments of the Apex Court in the case of Haji Muhammad Asghar v. Shah Muhammad Awan and another PLD 1986 SC 542 and the case of N.-W.F.P. v. Abdul Ghafoor Khan (PLD 1993 SC 418). On the jurisdictional objection, a plain reading the petition reveals its challenge to the vires of the respective legislations of sales tax and of customs duty that operate to levy and recover the impugned taxes in respect of the petitioner's goods imported for consumption in AJK. For this reason the petition impleads respondents Nos.1 and 2, namely, the Federation and C.B.R. As parties in the petition. Both these respondents function from Islamabad which is within the territorial jurisdiction of this Court. Accordingly, in respect of declaratory relief that is implicit in the prayer made in the petition it is held that this Court has jurisdiction to allow the same in accordance with provisions of Article 199 (1), (a),(ii) of the Constitution. If at all an objection was available to the respondents on the jurisdictional plane, it may have been attributed to the relief of mandamus that is implicit in the prayer made in the petition as for instance for interim relief.
However, that prayer is no longer in the field and does not operate to exclude the jurisdiction of this Court.
5. With regard to the substantive dispute, the comprehensive judgment of the Hon'ble Supreme Court referred above has considered the several dimensions of the controversy and arrived at considered findings that the plea raised by on behalf of the petitioner has no merit. This Court respectfully follows the finding and reasoning given therein. Accordingly this writ petition is dismissed with no order as to costs. .