1. MR. JUSTICE RIAZ AHMAD KHAN.--(1). This judgment is directed to dispose of instant Writ Petition No. 1626 of 2011 as well as Writ Petitions Nos. 811 of2010 and442 of 2012.
2. 2.All the three petitioners deal in construction, sale and purchase of shops and apartments.
3. According to petitioners, they purchase land, construct apartments and thereafter, sell those apartments to the general public. The petitioners were issued notice under section 45 of the Federal Excise Act, 2005, wherein they were asked to provide information for all their projects to ascertain whether the liability of federal excise duty has .Rightly been discharged or not. Feeling aggrieved of the said notice, the petitioners filed above said writ petitions with the prayer that amendment made through Finance Act, 2008 in the Federal Excise Act, 2005 be declared as illegal, ultra vires of the Constitution and resultantly, notice issued to them be declared as illegal and without jurisdiction.
4. 3.Leamed counsel for the petitioner submitted that section 3 of Federal Excise Act, 2005 is a charging section, which has not been amended and as such, no charge has been created against the property developers. The petitioners purchase land, then construct house over the same and thereafter, offer those houses for sale. The property for sale neither falls in the definition of goods nor in the definition of services. The Federal Excise Act is regarding goods and services, so the petitioners cannot be asked to pay the excise duty. Subsection (19-A) was added to section 2, wherein property developers were defined, but for charging excise duty, they were mentioned in the first schedule, table-II, which is regarding services In such a way, another anomaly was created that in the definition clause it was provided that property developers develop property for sale, which would mean that they have to be charged lor offering goods tor sale, but in the charging section, it was provided that property developers offer services. It was further contended that the petitioners do not offer any service and the activity of the petitioner cannot be considered as service and therefore, no charge can be created against the construction made by the petitioners.
5. Learned counsel in support of his contention, referred to 1997 SCM R 1244, 1993 SGMR 73 and 1996 SCM R 237.
6. 4.Learned counsel for the respondents as well as Deputy Attorney General submitted that the issue involved is a factual controversy and that the writ is not maintainable for the reason that the petitioners had the alternate remedy. It was further submitted in Writ Petition No. 442 of 2012, that the petitioners filed reply, Order-in-Original was passed, against which appeal was filed before Commissioner (Appeals), thereafter, the present writ petition was filed, in which Order-in-Original has been challenged.
7. 5.I have heard learned counsel for the parties and have also perused the record.
8. 6.The case of the petitioners is that they are not liable to pay the excise duty, as the same is not covered by any provision of Federal Excise Act, 2005. No provision of the Act has been challenged at the touchstone of fundamental rights or any provision of Constitution. It is not the case of the petitioners that any provision of Federal Excise Act is illegal, rather their case is that the provisions of Federal Excise Act do not apply to their case. As such, it cannot be said that the petitioners have challenged the vires of any provision of law, rather they have challenged the applicability of Federal Excise Act to their case. The same can be decided by the authority provided under the Federal Excise Act, 2005 and in presence of alternate remedy no writ can be issued.
9. 7.As far as Writ Petition No. 442 of 2012 is concerned, it was admitted that Order-in-Original was challenged before Commissioner Appeals, which was dismissed. Once the petitioners had adopted a hierarchy provided in the Federal Excise Act, then the petitioners at their on. Sweet-will cannot switch over to another hierarchy; thus, writ petition is not maintainable.
10. 8.In view of the above circumstances, these writ petitions are devoid of any merits and the same are hereby dismissed.