WAJIHUDDIN AHMED, J.-1. This Constitution Petition calls into question order, dated 29th September, 1987, passed by the Assistant Collector of Customs (Appraisement), Group III, Karachi, whereby the petitioners were required to pay a sum of Rs. 1,53,000, as short levied Customs duty.
2. The circumstances giving rise to this petition pertain to import of Polyester Staple Fibre (Man- made Textile Fibre), subject-matter of an in-bond Bill of Entry, dated 17th May, 1987. On 4th June, 1987, budgetary measures for the year 1987-88 were initiated through the Finance Bill, 1987, pursuant to clause 8(5) whereof rate of duty applicable under Pakistan Customs Tariff Heading No. 56.01 in relation to Man-made Fibre was reduced from Rs. 20/- per K.G., to Rs. 14 per K.G.
Simultaneously, with the publication of the Finance Bill, the Government of Pakistan made a Declaration under section 3 of the Provisional Collection of Taxes Act, 1931 XVI Of 1931, declaring that Clause 8(5) of the Bill, inter alia, shall have immediate effect. Part of the goods, in relation to which alone this petition is pressed, were released on the petitioners' filing Bill of Entry from bond and making reduced payment on 10th June, 1988 at Rs. 14 per K.G., in accordance with the abovesaid Declaration under section 3 of the Provisional Collection of Taxes Act, 1931. However, on 12th June, 1987, the Declaration, dated 4th June, 1987, was amended, whereby Customs duty, as earlier applicable at Rs. 20 per K.G., was reintroduced. Petitioners' contention is that the referred goods were paid for and released between the interregnum of 4th June, 1987 and 12th June, 1987, while duty at the rate of Rs. 14/- per K.G., was in force. However, show-cause notice, dated 20th July, 1987 was addressed to the petitioners to which due reply was made but, thereafter, the above referred order of the Assistant Collector of Customs was passed. Petitioners did not appeal but chose to file this Constitutional petition directly, instead.
3. The first objection to this petition is that the Constitutional remedy under Article 199 of the Constitution has been sought without exhausting the departmental remedies of appeal and revision and, adequate remedies being available, Constitutional jurisdiction cannot be invoked.
Availability of an adequate alternative remedy no doubt bars the Constitutional remedy under Article 199 of the Constitution and absence of such remedy is a prerequisite for the invocation of Constitutional jurisdiction. A satisfaction however, is to be reached by the Court that such projected adequate remedy is, in reality an adequate one, in the sense of being equally inexpensive, expeditious, beneficial and efficacious. If that be not so, such cannot be an adequate remedy. The rule on this very hypothesis, is that where a serious question of interpretation of law is involved, it is futile to continue to seek such interpretation at the departmental level and that in order to save time and avoid duplication of procedural bottle-necks Constitutional jurisdiction may, directly, be resorted to. In the ultimate analysis, as to what the law is has always to be determined by the superior Courts. In relation to' such a question departmental remedies can never be adequate within the meanings of the Constitutional mandate. On similar reasoning is based the now too well-established rule that sub-Constitutional Tribunals can never be judges of their own jurisdiction. On this point, inter alia, reference may be made to J the decision of this Court delivered by Naimuddin, J., as he then was, in the case of Sky Rooms Ltd. Vs. Assistant Collector PLD 1982 Kar.
244. The preliminary objection, therefore, fails.
4. On merits of the controversy the question appears to be a simple one. A Declaration under section 3 of the Provisional Collection of Taxes Act, 1931, can only be made in respect of an imposition or increase of a duty of Customs or Excise, or Sales Tax and it is in relation to such imposition or increase alone that the declaration operates, with immediate effect, the object plainly being to avoid a scramble for windfall profits in anticipation of the passage of a money bill, envisaging a fresh levy/imposition or increase in tax liability. Mr. Rasheed Akhund, however, insisted that the word "imposition" in Act XVI of 1931 did not mean a fresh imposition and that the word "fresh" is not to be read in the legislation as it is not there. This arguments not sustainable on the language of Article 73(2)(a) of the Constitution which, dealing with money bills seems to employ the word in the sense of a fresh levy. Further that word as employed in the Act of 1931 cannot involve abolition, remission, alternation,-or regulation of a tax, apart from a different intention appearing in Article 73(2)(a) of the Constitution, also on the ground that such word is used alongwith the word "increase" and the element of decrease or remission is, therefore,- automatically excluded. This view is strengthened on the language of the provisions pertaining to the consequences of the declaration and of the money bill not maturing into an enactment duly passed by the legislature. In such cases, it is only refunds that can be claimed or made. No consequential collections or recoveries are conceived of thereby clearly showing that the imposition contemplated in section 3 and the declaration in relation thereto can only be a fresh one or by way of increase, as expressly provided, for if abolition or remission was in contemplation, there would have been provided measures for collection or recoveries, on the proposal not being carried. If, therefore, the Federal Government in relation to a money bill, also makes a Declaration in the context of reduction of duty or tax such a Declaration would be ultra viers the provisions of section 3 of ibid and if it is given effect to such effect can always be recalled by resorting to appropriate procedure.
5. Accordingly, since reduction of Customs duty in relation to Man-made Fibre was also, though unwarrantedly, made the subject of the Declaration under section 3 of the Provisional Collection of Taxes Act, 1931, it was an error not sustainable by law and an order of recovery was rightly made and cannot be taken exception to. Such view is also supported on the ratio in Ebrahim Textile Mills Ltd. Vs. Federation of Pakistan (Now reported as PTCL 1990 CL. 118).
6. However, there is another aspect of the case which 'would require specific mention.
Simultaneously with the |reduction in Customs duty, Finance Bill of 1987 also (introduced Defence Tax on imports of Man-made Fibre. Such Tax, ultimately, did not find place in the Finance Act of 1987, as enacted. Inasmuch as this being a new imposition was not accorded legislative approval, the declaration under section 3 of the Provisional Collection of Taxes Act, 1931, in relation to this levy came to an end with the passage of the Act of 1987 and the petitioners, under section 5 of the same Act, became entitled to refund of Rs. 43,026 paid by them by way of Defence Tax on 10th June, 1987, while the collection had been duly mandated under the declaration issued on 4th June, 1987. The petitioners are manifestly entitled to this refund. However, the respondents have already admitted their liability to make due refund on this score. We take note of such admission.
Respondents would, obviously, act on their own admission and make refund, as required by law.
7. As a result of the above discussion, no reliefs as claimed in the petition can be granted and we, therefore, had dismissed this petition subject to reasons to follow, which we have recorded herein.
8. Subject to the foregoing observations, this petition, accordingly, stands dismissed, as regards the claim of Customs duty on merits and as infructuous on the basis of the admission made by the respondents in relation to the Defence Tax, referred to above.