' MUHAMMAD NAWAZ ABBASI, J.--- These civil review petitions have been directed against the judgment, dated 23-5-2005, passed by this Court in Civil Petitions bearing Nos.3 to 131-K of 2003 and 897-K of 2004 wherein the legality of judgment, dated 3-8-2004 passed by the High Court of Sindh at Karachi in custom appeals filed by the petitioners against the judgment of Custom, Excise, Sales Tax Appellate Tribunal at Karachi, was challenged.
2. The Pakistan State Oil, as registered Company, petitioner herein, was served with a show-cause notice, dated 6-6-2001 by the Additional Collector (Adjudication) Collectorate of Customs, Sales Tax and Central Excise, Karachi, under section 32(1) and (2) read with section 156(1)(14) of the Customs Act, 1969 wherein the payment of evaded custom duty/taxes on supplies of POL products by Messrs PSO for consumption of Pakistan Navy Ships was demanded on the ground that such supplies were not exempted from payment .Of customs duty/taxes under section 106 of Customs Act, 1969. The petitioner contested the show-cause notice on various grounds and the Collector, vide order-in-original dated 8-5-2001, held as under:-- "I have gone through the case record, examined the submissions of the importer made in their letter, dated 23-2-2001. Since the ships of Pakistan Navy are not involved in foreign trade as envisaged under the Customs Act, 1969, "any warehoused provisions and stores may be exported within the period of their warehousing under section 98 without payment of import duty for use on board any conveyance proceeding to a foreign territory". These are not admissible to the concession of the aforesaid section 106 of the Customs Act, 1969. The fact that Messrs Pakistan State Oil have now started paying customs duty on such receipt and consumption of POL products after the detection of these non-payments, this also manifests that the taxes payable of these non-payments, this also manifests that the taxes payable in the past were not paid by them for which they do not have any valid justification. However, in view of the fact that Pakistan Navy is a Defence Organization, no mala fide can be attributed to it. It was the duty of the Pakistan State Oil to have apprised Pakistan Navy about the legal situation regarding taxability of the product being supplied by Pakistan State Oil to their customers i,e, Pakistan Navy. Considering all aspects of the case, I do not levy any penalty in this case. However, I determine that an amount of Rs,24,74,965 (Rupees Twenty four lac, seventy-four thousand nine hundred sixty-five only) as stated in the show-cause notice is payable by Messrs Pakistan State Oil which should now be paid into the Government treasury within 30 days of the receipts of this order."
3. The above order passed by the Collector, was upheld by the Customs, Excise, Sales Tax Appellate Tribunal in appeal filed by the petitioners vide judgment, dated 2-1-2001 as under:- "We had examined different shipping bills presented before us.
' It is evident that the words bond is clearly mentioned yet the rate applied is the same, which is applicable for supply, to Pakistan ships other than on foreign voyage. This rate clearly includes the element of duty and taxes. It is, therefore, clear that Messrs PSO charged the same rate from Pakistan Navy, which was charged from other Pakistani ships not going abroad. These rates included element of customs duty and taxes, which Messrs PSO was supposed to deposit in the Government Treasury and this was not done. Thus, the so-called exemption to Pakistan Navy remained useless for them and the amount of claimed exemption went in purse of PSO, which is itself, a planned evasion. In view of this we haye no alternate but to uphold the order passed by the Collector."
4. The petitioner, being aggrieved of the verdict given by the Tribunal, filed Special Customs Appeals before the High Court of Sindh at Karachi under section 196 of the Customs Act, 1969, wherein the following questions of law were raised:- " (1) Whether the show-cause notice is time-barred having been issued beyond the period of three years (being the maximum period at the relevant time) prescribed under section 32(2) of the Customs Act, 1969.
(2) Whether the supplies of Pakistan Naval ships are exempt from payment of duties in view of the provision of section 106 of the Customs Act, 1969?
(3) Whether at least 44 show causes are time-barred having been issued even beyond the period of three years (being the maximum period at the relevant time) prescribed under section 32(2) of the Customs Act, 1969?
(4) Whether the department is estopped from raising a demand in relation to the matter bearing in mind the established practice being followed in this regard for over thirty years giving a vested right to the appellant?
(5) Whether a demand can be raised so belatedly in relation to the past and closed transactions?"
5. The High Court having come to the conclusion that show-cause notice was barred by time, without deciding the remaining questions raised therein allowed the appeal and respondents challenging the legality of the judgment of the High Court, filed the above referred civil petitions before this Court which were converted into appeals and were allowed with following observation:- "Perusal of section 196 of the Act reveals that High Court can exercise its jurisdiction only in respect of questions of law arising out of order under section 194-B of , the Act. It is significant to note that before the Customs Hierarchy plea of limitation was not raised. It being so, the High Court was not competent to consider said plea, as it was neither raised before Collector Customs, nor before the Tribunal. There is no discussion on the point of limitation in the orders passed by the Collector Customs and the Tribunal. Questions of limitation is a mixed question of law and fact and unless it was raised before the forum below, it could not straightaway be agitated before the High Court. It can be concluded that such question never arose from the order passed by the Tribunal. Factual controversy is sorted out up to the level of the Tribunal. Remedy under section 196 is restricted to legal points only, which was not available to the respondent-Company before High Court.
' It was conclusively proved that section 106 was not available to the company, which pocketed the amount of duty/taxes while selling POL products to Pakistan Navy. Besides, it is an admitted position that the respondent-Company has already started making payment of duty/taxes with effect from 1st September, 2000 on the supplies of POL products (HSGO) to Pakistan Navy, which furnishes sufficient basis td hold that the demand of Customs Authorities was correct and according to law. It also stands proved that the respondent-Company since long withheld Government revenue without any justification. The record also discloses that from September, 2000 to May, 2001 the Customs Authorities have collected an amount of 85 million rupees as duty/taxes from the respondent-Company on the supplies of POL products to Pakistan Navy.
' In view of above, these petitions are converted into appeals and the same are allowed. Impugned judgment of High Court is set aside and the judgment of the Tribunal dated 2nd January, 2001 is restored."
6. The petitioner is a State controlled oil marketing company carrying the business of marketing and distribution of POL products and also supply High Speed Diesel Oil to Pakistan Navy at a price fixed by the Ministry of Petroleum and Natural Resources time by time. The case of the petitioner was that the price of oil products was being charged from Pakistan Navy in Pakistan currency instead of US Dollar as a special Concession and supply of POL products for use of Pakistan Navy Ships proceedings to the foreign port would be deemed to be exempted from payment of duty/taxes under section 106 of the Customs Act, 1969, a corresponding provision to section 112 of Sea Customs Act, 1878, whereunder custom duty/taxes on the Royal Navy Ships were exempted.
The petitioner on the analogy of section 112 of Sea Customs Act, 1878 under which the British Royal Navy was exempted from payment of customs duty and other taxes, has claimed exemption on the domestic supplies of POL products made to the Pakistan Navy.
7. The learned counsel for the petitioner seeking review of the judgment has contended that the High Court in exercise of its powers under section 196 of the Customs Act, 1969, having examined the question regarding the validity of the show-cause notice under section 32(1) and (2) read with section 156(1)(14) of the said Act, held that the show-cause notice having been issued beyond the normal period provided under the law was time-barred and consequently, without feeling necessity of deciding any other question, allowed the appeals, therefore, this Court in the light of its consistent practice, after reversing the judgment of the High Court on the question of limitation, had to remand the case to the High Court for decision of remaining questions. The learned counsel argued that the final disposal of the matter in the given situation, without the views of the High Court on the said questions, has not only caused prejudice to the petitioner before this Court but practically also curtailed his right of appeal before the High Court.
8. Learned Attorney-General for Pakistan, representing the respondents, (petitioners in the main petitions), has contended that in the circumstances of the present case, the question whether the show-cause notice was time-barred or not was either a question of fact or a mixed question of law and facts and was not a pure question of law to be raised before the High Court in the proceedings under section 196 of Customs Act, 1969. This Court having considered the scope of the above provisions of law, has corrected the illegality committed by the High Court and thus, it would not be permissible to re-argue the above points and submitted that the scope of review under Article 188 of the constitution read with the Supreme Court Rules, 1980, is limited to the extent of error on the face of record but in the judgment under review neither anything was overlooked nor any question of law raised by the parties in the main petitions escaped the notice of this Court, therefore, these review petitions are devoid of any force.
9. The examination of section 32(1) and (2) of the Customs Act, 1969, read with the related provisions would show that a factual inquiry is essential to ascertain the nature of transaction and to determine the commencing date for the purpose of calculation of the period for giving A show- cause notice under the above section. It may be pointed out that a question of law does not require investigation of facts and thus, a question involving factual inquiry into facts or to which answer cannot be given without going into facts is not a question of law. In view thereof, the question whether show-cause notice was given within the time prescribed under the law or beyond the said period, would be considered a question of fact and not a question of law to be raised and decided by the High Court in the proceedings under section 196 of the Customs Act, 1969, therefore, the grant of review of the judgment on the above point, would amount to re- consider the point already decided.
10. The High Court having not gone into the real question regarding the applicability of section 106 of the Customs Act, 1969, to the supplies of oil products made by the petitioner-Company to the Pakistan Navy certainly committed a jurisdictional error in the judgment and this Court having considered it an essential proposition of law, decided the same in the interest of complete justice, therefore, the contention of the learned counsel that the case was required to be remanded to the High Court for decision of the remaining questions raised in the appeals, which were left undecided by the High Court has no substance. The proceeding before the High Court under section 196 of the Customs Act, 1969 arising out of an order passed by the Custom Appellate Tribunal under section 194-B of the said Act can be entertained only on a question of law, therefore, this Court deemed it proper to decide the substantial question of law relating to the claim of exemption on the payment of duty/taxes on the supplies of oil products to the Pakistan Navy under section 106 of the Customs Act, 1969. Under section 112 of Sea Customs Act, 1878 free shipments from bound were allowed on store shipped on a vessel proceeding to a foreign port provided the vessel was engaged in foreign trade and section 106 of the Customs Act, 1969, subject to the provisions of section 98 of the said Act envisages that any warehoused goods and stores may be exported without payment of import duty for use on board any conveyance proceeding to a foreign territory. Thus, the question that which Pakistan Navy ship when proceeded on foreign destination is purely a question of fact and consequently, the supplies of oil products for consumption of Pakistan Navy ships would not be ipso facto exempted from Customs duty/taxes under section 106 of the Customs Act, 1969.
10. Learned counsel for the petitioner instead of pointing out any error apparent on the face of record in the judgment under review has made an attempt to reopen the case on the points already taken note of and decided in the judgment. It may be observed that substance of arguments raised by the learned counsel in support of these review petitions has been dealt with in the main petitions on the principle of law and the petitioner in the garb of review petitions has made an attempt to re-argue the matter on merits. This is settled principle that review does not lie merely on the ground that there was an error in the judgment or that another view of the matter was also possible. This Court although is not bound by its own judgment and may subsequently, review the law declared by it, if circumstances so demand but power of review is exercised very seldom and only in the exceptional cases in which some important aspect of the matter escaped the notice of Court or was not B considered and such an error was apparent in the judgment. The conclusion drawn and judgment rendered after due consideration of the material points on the basis of foundation laid by the parties, cannot be re-considered to alter the judgment in review jurisdiction.
11. In the light of foregoing reasons we do not find any substance in these review petitions and the same are accordingly dismissed.