' JAWAID NAWAZ KHAN GANDAPUR, J.---The petitioner, M/s. Saif Nadeem Electro Limited, Haripur, has by this writ petition, called in question the validity of the order passed by the Collector, Custom & Central Excise/Commissioner, Sales Tax, Peshawar (respondent No,1) on 5-12-1989 and the demand of Superintendent Customs and Central Excise, Haripur (respondent No3), regarding the payment of sales tax, alongwith penalty, amounting to Rs,6,29,382, communicated through Letter No,C.IV. S.Tax (GST) 27/90/1412, dated 27-2-1991 and seeks declaration, from this Court, to the effect that the. Demand so made is without lawful authority and therefore of no legal effect.
2. The. Petitioner's case, in brief, is that he has set up an independent unit for manufacturing Black & White Televisions of 14" and 17" in Usman House, Sector No, IV, Khalabat Township, Haripur in February, 1989, that for this purpose a separate assembling/manufacturing plant was imported, vide Import Licence No,B-388607, dated 15-8-1989, as is apparent from Bill of Entry No,2758/89/90, dated 23-9-1989, that accordingly a separate excise licence was also issued for the second unit vide Licence No, Excisable TV/3/89 on 11-2-1989, that installation of manufacturing/assembling plant at Unit No, 2 has also been verified by respondent No,3 through letter, dated 22-11-1989, and respondent No,2, as Well, through letter, dated 4-1-1990, that the combined study of these documents would show that Unit No,2, functioning in Usman House, Sector No,4, Khalabat Township, Haripur is an independent Unit (New Unit) and has no connection, whatsoever, with Unit No,1, situated in Plots Nos.5--7, Small Industrial Estate, Khalabat, at a distance of one and a half mile which is an independent/separate unit and is only engaged in, assembling/manufacturing of Colour T. V. Of Orion Brand with effect from 25-1-1986.
3. The petitioner has further contended that there are two separate factories/units and that under the law both can be owned by one and the same company, that on the other hand, respondent No,1 holds the view that Unit No,2 is in fact an extension of Unit No,1 (old plant/factory) and therefore, the petitioner/company cannot claim exemption from payment of sales tax in terms of- Notification S.R.O.No,529(1)/88, dated 26-6-1988 from January, 1989.
4. We have heard learned counsel for petitioner Mirza Abdullah Jan, Advocate assisted by Mr. Bashir Ahmad Khan Advocate, learned counsel for respondents Nos.1, 2 and 3 Mr. Sultan Ahmad Jamshaid Advocate and learned counsel for respondent No,4 Mr. Muhammad Aslam Khan, Assistant Advocate-General and have also gone through the relevant documents placed on record carefully.
5. This writ petition, in our considered view, is not competent' for the following reasons:-
(a) In the first instance the questions of fact have been raised and the Nigh Court cannot go in the domain of such controversy;
(b) In the next place, the petitioner instead of seeking adequate and alternate remedy from the department concerned, including the C.B.R., has straightaway come to this Court, for the redress of his grievance. It may be mentioned here that the petition in 'hand cannot be entertained unless all the remedies available and open to the petitioner are not exhausted, in the first instance;
(c) In the third place, the petitioner has himself been paying sales tax for about two years, without raising any objection, or making any protest to the department;
(d) And lastly, the petitioner has been turning out black and white televisions from the 1st Unit (Old Plant/Factory) which was installed, according to him, in 1986, vide: daily production report of the petitioner's Company. These documents, in our opinion, ex fade show that Unit No,2 is an expansion or extension of Unit No,1 and is not a new unit.
6. In the circumstances, discussed above, the case set up by the petitioner does not fall within the ambit and scope of Notification S.R.O. No,529(1)/88, dated 26-6-1988 and for the foregoing reasons, we find no merit/substance in this writ petition which is hereby dismissed with costs.