ORDER AMANULLAH ABBASI, J.- The petitioner has requested for relief as under "(i) Direct the respondent No. 2 to clear all the goods of the petitioner which are covered by proforma invoices finalized prior to 30.6.1995 and attached as annexures F-3 and F-4 under the Notification SRO 484(I)/92 dated 14.5.1992 and without raising any demand for any duties, taxes or charges.
(ii) Srike. Down the SRO dated 4.10.1995 which has imposed concessionary rate of duty and taxes as also SRO dated 29.10.1995."
2. It is the case of the petitioner that he secured permission from the Govt, of Sindh Department of Industries and Mineral Development vide letter dated 14.12.1989 to establish a new Sugar Mill in the District of Tharparkar. The sanction was accorded to establish a Sugar Mill within the territorial limits of Samaro, Kot Ghulam Muhammad and Umar Kot in District Tharparkar with an install capacity of 4,000/00 tons of Sugarcane crushing per day. The National Development Finance Corporation agreed to finance the project and accorded its acceptance vide letter dated 14.1.1990.
It is the case of the petitioner that he was a victim of administrative inefficiencies and development financial institutions. The Govt, of Sindh also revised petitioner's location in a manner to restrict the operation in Kot Ghulam Muhammad unilaterally vide letters dated 9.1.1990 and 15.3.1990. The petitioner filed Constitutional Petition No. D-343/1991. However, Govt, of Sindh restored the availability of the territorial limit of Kot Ghulam Muhammad vide letter dated 2.6.1990. The Investment Corporation of Pakistan another financial institution also conveyed its consent to Finance the petitioner's Project vide letter dated 25.4.1990. Petitioner has further stated that the process of political victimization increased and without any show-cause notice and with intention to withdraw the permission accorded to petitioner to establish Sugar Mill, the establishment of New Sugar Mill was placed in the negative list in Sindh vide letter dated 9.2.1991. In this manner the entire investment in terms of money, time, energy and efforts put by the petitioner into the proposed project was reduced to a naught. It is the case of petitioner that despite the ban on establishing Sugar Mill in the Province of Sindh, the department of industries accorded a sanction to establish a fresh Sugar Mill to one Hameer Soomro which confirmed the mala fide action of Government. The petitioner once again approached the Government in late 1993. The Govt, of Sindh revived its earlier sanction dated 14.12.1989 to establish a Sugar Mill vide letter dated 15.12.1993. The petitioner has also mentioned other facts which delayed his project and he wanted to avail the benefit of incentives assured under SRO 484(1) of 1992, dated 14.5.1992 where under a complete exemption was granted from all duties and taxes. Relying upon this SRO the petitioner finalized contracts with Foreign Exporters prior to 30.6.1995. However, the delay in opening letters of credit is due to the mala fide intention of the National Development Finance Corporation. The respondent No. 1 without a show-cause notice withdrew illegally the concession available under SRO 484(1) of 1992 by another SRO dated 4.10.1995. In terms of this new SRO a limited concession has been made available only for those consignments which have been imported through letters of credit establish prior to 30.6.1995. It is the case of petitioner that the machinery is lying in bond whereon heavy demurrage has been levied. The respondent No. 1 has imposed a regulatory duty dated 29.10.1995 on imports of machinery. According to the petitioner. He had acquired vested rights in terms of SRO 484(1)/1992 which cannot be withdrawn and Federal Govt, had no power to take away vested rights which are protected by the "Protection of Economic Reforms Act, 1992."
3. The present application under Order. 39, Rules 1 and 2 R/W Section 151, CPC has been submitted by petitioner requesting that the respondents be directed to release the goods of petitioner in terms of SRO 484(I)/1992, dated 14.5.1992 as being exempt from all duties and taxes.
4. The respondents have given a different version through counter affidavit of Mr. Ahmed Mujtaba, Assistant Collector of Customs Appraisement (Law). In paragraph 11 of the counter- affidavit it is stated that SRO 484(1)/1992 allows exemption from custom duty and sales tax to machinery imported during the period commencing on 1st December, 1990 and ending on 30.6.1995.This SRO is subject to Section 30 of the Customs Act, 1969, therefore, the value and rate of duty shall be applicable as on the date the manifest is delivered and the bill of entry is filed. The petitioner's machinery for which bill of entry does not qualify for exemption as the relevant conditions in terms of the SRO 484(I)/92, provided the manifest was delivered arid the bill of entry was based upon the manifest was filed on or before 30.6.1995. It is further stated that the vessel arrived on 30.6.1995 and accordingly Import General Manifest was filed after 30.6.1995. Reluctantly, the goods imported are liable to be released against payment of standard rate of duty/taxes leviable thereon. SRO dated 4.10.1995 allows exemption from Customs duty and sales tax in excess of 25% levialble thereon read with SRO 484(I)/92, dated 14.5.1992. This was the relief allowed by the Govt, for machinery consignments arrived after 30.6.1995. If the goods do not qualify the conditions mentioned in SRO 484(I)/92, the same are liable to be released against payment of leviable duty/taxes and standard rate. Full exemption in terms of SRO 484(I)/92, dated 14.5.1992 cannot be granted as the goods in question arrived after 30.6.1995 (If not being manufactured locally).
5. The learned advocate for the petitioner has submitted that the petitioner had acquired vested rights on the SRO 484(I)/92, dated 14.5.1992 and this concession cannot be withdrawn because petitioner had acted under assurance mentioned in this SRO. Mr. Farogh Naseem, advocate for the petitioner has cited number of decisions wherein identical circumstances the goods were released subject to furnishing of indemnity bonds to the satisfaction of the Customs Authorities. He has referred to order of Hon'ble Supreme Court in Civil Petition No. 695-L of 1996 dated 11.2.1996, which is an under:- "The learned counsel states that in a number of similarly placed cases and of identical facts the High Court had directed the release of goods on furnishing of indemnity bond. That being so the goods of the petitioner may also be released on the furnishing of indemnity bond to the satisfaction of the Collector of Customs.
He has also referred to order in W.P. No. 1221/95 and W.P. No. 1174/95 the relevant portion of the order dated 8.10.1995 in W.P. No. 1221/95 in as under:- "In view of the above, ad-interim relief is granted to the petitioner with the direction that machinery be released to the petitioner on furnishing of indemnity bond in terms of SRO 484(I)/92, dated 14.5.1992 to the satisfaction of the Collector of Customs Karachi."
Similar is the order in W.P. No. 1174/95. The learned advocate for the petitioner has also referred the decisions reported in PLD 1987 Karachi page 63. He has also relied on decision reported in 1993 SCMR page 69. He has also placed reliance on decisions reported in 1986 SCMR page 1917 on point of creation of vested rights.
6. The arguments and contentions of the petitioner and respondents have been examined.
According to respondents SRO 484(I)/92 allows exemption from Customs duty and sales tax to machinery imported during the period commencing from 1st December, 1990 and ending on 30.6.1995. The value and rate is determined as on the date the manifest in delivered and bill of entry is filed. This SRO cannot be made applicable to the goods which arrived after 30.6.1995. The goods of petitioner arrived on 30.6.1995 and manifest was filed after 30.6.1995 after the expiry of SRO 484(I)/92. Accordingly it can be said that benefits of SRO 484(I)/92 were available in all cases where Import General Manifest was filed prior to 30.6.1995 and bill of entry was also submitted before this date. There is a dispute of few days only and according to petitioner delay was caused because of political victimization otherwise he was entitled to benefits of SRO 484(I)/92. The counter-affidavit filed by Mr. Ahmed Mujtaba Mamon, Astt. Collector Customs mentions that duty is chargeable on standard rate of duty/taxes. It is stated that vessel arrived on 30.6.1995 but it has not been clarified in the affidavit as to how much amount is payable by petitioner. The petitioner wants the machinery for installation as allowed and the respondents want duty/taxes. The amount is not mentioned. The learned advocate for the petitioner has submitted that vested rights were created because all contracts were prior to 30.6.1995. In similar cases the Hon'ble Supreme Court and Lahore High Court. Following the order of Supreme Court in Petition No. 695-L/1996, dated 11.2.1996 we order that the machinery in question be released to the petitioner on furnishing of indemnity bond to the satisfaction of Collector of Customs, Karachi. The petition may be fixed for regular hearing within three months.
DR. GHOUS MUHAMMAD, J.- I have gone through the order proposed to be delivered by my learned brother ie. Amanullah Abbasi, J, on the application for interim relief. I quite agree with the conclusion arrived at by my learned brother, however, I would venture to record my own reasons for arriving at the said conclusion because the listed application was argued at some length.
2. The relevant facts for a just disposal of the matter are that the petitioner secured a sanction to set up a Sugar Mill from the Government of Sindh through letter dated 14.12.1989. It is alleged by the petitioner that the sanction was withdrawn through letter dated 9.2.1991 on the pretext that Sugar Mills in Sindh were on the negative list. Despite the same the sanction of the petitioner was awarded to some one else. In this respect the petitioner has attached documents marked Annexures A-2, B-l and B-3. On these alleged facts the petitioner has tried to forward the case that right from inception the project has been subject to political harassment and victimization.
Thereafter the sanction earlier accorded to the petitioner stood revived vide Government of Sindh's letter dated 15.12.1993, while it is also alleged that the financial institutions responsible for according loans to the project of the petitioner's malafide reasons further delayed the project.
3. It is alleged by the petitioner that while relying upon SRO 484(I)/92, dated 14.5.1992 (hereafter referred to as "SRO 484"), the petitioner finalised contracts with foreign, exporters all prior to 30.6.1995 (as per list enclosed Annexure F-3*and F-4) to import plant and machinery which were not locally manufactured, for the purpose of installing the same in the petitioner's sugar mill proposed to be set up in a rural district ie. Tharparkar.
4. It is alleged by the petitioner that it submitted documents to the concerned financial institutions to establish letters of credit for the purpose of import while moving 29, applications, out of which 25 were submitted to the financial institutions prior to 30.6.1995 and the remaining four were part and parcel of the earlier applications. It is alleged by the petitioner that the financial institutions established letters of credit of 13 applications prior to 30.6.1995, while the remaining letters of credit were opened after the said date. It is alleged by the petitioner that the delay has been caused due to the harassm ent caused by the Government as also the mala fide stance of the financial institutions to thwart the petitioner's project.
5: It is the case of petitioner that the Government through 2 other notifications ie. SRO-(I)/92 dated 4.10.1995 and SRO.-(I)/95 dated 29.10.1995 imposed customs duty and sales tax including regulatory duty to the detriment of the petitioner thus undermining the petitioner's exemption under SRO 484.
6. Mr. Muhammad Farogh Naseem, the learned counsel for the petitioner has contended that the petitioner has acquired a vested right to seek clearance of its imported plant and machinery in issue under SRO 484, since while relying upon the said SRO 484.
(i) the petitioner had finalized all the contracts of import of the plant and machinery with the foreign exporters during the pendency of the said SRO 484, ie. Prior to 30.6.1995 and it was immaterial that the goods arrived thereafter;
(ii) the petitioner had established the letters of credit of major portion of the total value of the plant and machinery prior to 30.6.1995, while the subsequent letters of credit which were established after that day were essentially part and parcel of the earlier letters of credit;
(iii) delay, if any, was not attributable to the petitioner and the same was due to harassment by the Government and the mala fide stance of the financial institution. In support of this the learned counsel for the petitioners has placed as Annexures C-l and E-3, which are essentially letters dated 7.12.1993 and 3.5.1994 issued by the Government of Pakistan Finance Division (Investment Wing), confirming that the petitioner's project had been politically victimized and that delay, if any, had been occasioned due to no fault of the sponsor' s/petitioner' s.
7. Mr. Muhammad Farogh Naseem, the learned counsel for the petitioner in support of this contention that vested rights in the facts of the case have accrued to the petitioner which could not be destroyed or taken away, has relied upon the following
(i) Associated Trading Co. Ltd. v. CBR. (PLD 1987 Karachi 63)
(ii) A1 Samrez Enterprise v. Federation of Pakistan. (1986 SCMR 1917)
(iii) W.P. No. 1174/95 recently filed in the Lahore High Court, Rawalpindi Bench in which interim orders had been passed.
(iv) W.P. No. 1221/1995 recently filed in the Lahore High Court, Rawalpindi Bench in which interim orders had been passed;
(v) Civil Petition No. 695-L/96 recently filed in the Supreme Court in which also interim orders have been passed;
8. In further support of the above contention Mr. Muhammad Farogh Naseem has forwarded the proposition that in a fiscal/tax matter once a petition is admitted the Courts as a matter of course ought to grant interim relief, since the very fact that the petition has been admitted confirms that the petitioner has made out a prima facie case. In this respect the learned counsel has placed reliance upon:-
(i) Inayat Hussain v. Union of India, (1980) 122 ITR 227);
(ii) Gulistan Textile Mills v. Federation of Pakistan (1994 PTD 581);
(iii) Kamran Industries v. Collector of Customs. (PLD 1996 Karachi 68 at p. 100 M);
9. The learned counsel for the petitioner has further placed reliance upon a number of orders/decisions to State that while granting interim relief in a tax matter the Court ought also to consider the convenience of both parties. The Court in this regard ought not to put the petitioner on terms which are extremely onerous or which would amount to directly or indirectly making available funds which are part of the disputed amount. The learned counsel stated that if such onerous terms are given the same would be completely against the concept of writ jurisdiction. In regard to this proposition as also by way of illustration as to how in some other tax matters the superior Courts have granted interim relief, reliance has been placed upon:-
(i) M/s. Usman Glass Sheet Factories Ltd. v. Assistant Collector Customs. (PLD 1968 Dacca 276);
(ii) M/s. Inter Ocean Cargo Services, Karachi v. Federation of Pakistan, (1992 PTD 1411);
(iii) M/s. Nasir Flour Mills (Pvt.) Ltd. Karachi v. Federation of Pakistan (1994 PTD 1421);
(iv) M/s. International Tea Traders v. Federation of Pakistan (1994 PTD 1422)
(v) Pakistan Paper Products v. Income Tax officer, C.P. No. B-1584/92;
(vi) Mansoor Ali v. Federation of Pakistan, C.P. No. D- 1044/93;
(vii) Abdul Qadir Adam Sadat v. Federation of Pakistan, C.P. No. D-122/93.
In the end Mr. Farogh Naseem has pressed that the idea of any interim injunction is to protect the weaker against the stronger (1987 CLC 1322) while in this case the petitioner, as assessee, a tax payer, who has placed reliance upon the Government's tax payer, who has placed reliance upon the Government's exemption has imported plant and machinery for its proposed project while in this case if an interim relief is not accrued great hardship would ensue, millions would be lost, feasibility of the project will be disturbed, and it is in the interest of all concerned that the interim relief be granted.
10. Mr. Faruq H. Naek, the learned Deputy Attorney General appearing for the respondents has vehemently opposed the listed application while propounding the following objections
(a) the petition is pre-mature as the bills of entry have neither been filed nor any assessment made thereon, while in default whereof it is not possible to determine as to whether the petitioner is entitled to the exemption under SRO 484, and whether the petitioner is able to meet the conditions of the said SRO 484. In this regard he has cited Section 30 of the Customs Act, 1969;
(b) Mr. Faruq H. Naek, the learned D.A.G, has further stressed that a person can only be entitled to die benefit of SRO 484, if, inter alia, three important conditions stated therein are fulfilled
(i) the proposed plant and machinery to be imported is not locally manufactured;
(ii) the imports are made before the cut off dated (ie.30.6.1995) spelt out in the SRO 484;
(iii) the proposed unit is to be set up in some rural area as stated in Table 1 of SRO 484; After spelling out the above conditions the learned D.A.G, has emphatically stressed that the petitioner has not been able to meet any of conditions listed above in view whereof it is not entitled to the exemption under SRO 484.
11. Mr. Farogh Nassem the learned counsel for the petitioner in his reply to the objections of the learned DAG his stated that the same are not tenable at all in that:-
(a) Article 199 of the Constitution not only envisages an impugned action which has already taken place but also a 'threatened action.' Furthermore, once the CBR has already taken a stance by issuing 2 subsequent notifications in supersession to SRO 484, it would be complete exercise in futility to wait for any assessm ent/order by the Collectorate who would not go against the orders of the CBR. In this respect reliance has been placed on:-
(i) S. Abdullah & Co. v. Collector of Customs, (PLD 1992 Karachi 258);
(ii) Balochistan Textile Mills Ltd. v. CBR (1984 CLC 2192)
(b) Also the very fact that the respondents have filed a counter-affidavit to the main petition in which at various places it had been categorically stated that the petitioners are not entitled to the benefit under S.R.O. 484, the contention of the DAG that the petition is premature since the department has not taken a decision as to whether or not the petitioner is in fact entitled to the benefit under S.R.O. 484, is completely misplaced;
(c) the listed application has to be allowed since although a counter-affidavit to the. Main petition has been filed, no counter-affidavit to the interim application/affidavit has been moved;
(d) as regards the objection of the learned D.A.G.That the conditions spelt out in SRO 484 have not been met by the petitioner, Mr. Farogh Naseem stated that is only an attempt to entangle the Court with facts that are neither in issue nor the same can possibly be in dispute in that:-
(i) there is no dispute that the plant and machinery in issue are not locally manufactured as the same have been confirmed by the letter of CBR. Dated 14.9.1995, attached as Annexure I. Also in this regard there is no specific denial in the counter-affidavit;
(ii) there is little doubt that the petitioner's unit is proposed to be set up in a rural area ie. District Tharparkar. In this respect the petitioner has attached letter of Government of Sindh dated 14.12.1989 and 15.12.1993 attached as Annexures A-2 and C-2 confirming the location, while there is no denial to that extent in the counter-affidavit;
(iii) as regards the cut off date argument put forward by the learned DAG the counsel for the petitioner reiterated his argument on the front of vested rights, as summarized in paragraph 6 above.
12. I have gone through the record and analysed the arguments of both the sides. I am of the view that the contention of the learned counsel for the petitioner carries force that once a petition in a tax matter is admitted that ipso facto shows that the petitioner has made out a prima facie case in view whereof interim relief may be granted. As regards as to what would constitute a prima facie case many decisions can be cited for the point that a prima facie case would not necessarily mean something that would definitely succeed but for which something could be said in favour by the petitioner. On this score the case of Inagat Hussain cited above and relied by the counsel for the petitioner is quite relevant. Furthermore, while examining the merits I also feel that there is a prima facie case since in the decision of Associated Trading Company Limited v. CBR, cited above it has clearly held that if during the pendency of an exemption notification contracts with foreign exporters are finalized the petitioner acquire a vested right to seek clearance of goods in terms of the said notification. In this respect the 2 orders from the Lahore High Court, Rawalpindi Bench, in W.P. Nos. 1174/95 and 1221/95 relied upon by the counsel for the petitioner are quite relevant as in both cases the Lahore High Court while construing the same S.R.O. 484, on more or less identical facts has admitted the petition and granted interim relief while placing reliance upon the case of Associated Trading Company. Furthermore I have also perused the recent order and Memo, of the petition filed in the Supreme Court in Civil Petition No. 695- L/96 touching upon the same SRO 484, where once again on more or less similar facts (ie. That the contracts of imports have been finalized with the foreign exporters before 30.6.1995 and that some letters of credit have been established before date and the remaining letters of credit established thereafter are to be construed as part and parcel of the earlier letters of credit), interim relief has been granted by the Hon'ble Supreme Court, despite the judgment in Molasses Trading v. Federation of Pakistan (1993 SCMR 1905), the import of S. 31-A of the Customs Act and that SRO 484, itself spells out that the machinery has to be imported between 1.12.1990 and 30.6.1995. I have further been able to place my hands on M/s. M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan (1994 SCMR 2123) where a full bench of the Honourable Supreme Court while continuing the interim relief has granted leave to examine inter alia, the question as to whether in comparable circumstances the doctrine of legitimate expectations can be invoked. In view of these facts as also because of the reason that the Government of Pakistan, Finance Division (Investment Wing) in 2 letters attached as Annexures C-l and E-3 has confirmed that any delay is not attributable to the sponsors/petitioners and that the petitioner's project has been politically victimized, I have come to the conclusion that the petitioner has a prima facie case which warrants further probe and analysis and it would be very unreasonable to deny interim relief in the form of release of goods till disposal of the petition, especially because the petition already stands admitted on this score vide admission orders of another bench dated 17.12.1995.
13. I would now like to deal with the objection of the learned D.A.G, that the petition is pre-mature and warrants dismissal since no bill of entry has been filed and no assessment or evaluation thereon has been made by the respondents to examine whether in the first place the petitioner is or not entitled to the sought exemption. I am of the view that this objection is not tenable. Article 199 of the Constitution clearly spells out that High Court in a writ jurisdiction has not only the power to pass a corrective order by curing a defect in an existing order but it also has the power to prohibit a functionary from passing an illegal order. In other words the High Court under Article 199 has squarely the power to pass a prohibitory order of restrain against a threatened action as well.
Such interpretation is quite apparent from the language employed in Article 199 (1) (a) (i). Also the decision reported as S. Abdullah & Co. And Balochistan Textile (cited above) are also quite relevant to build and extend the proposition that once the CBR through a subsequent notification clearly supersedes and over-rides the exemption so claimed, an attempt to get an assessment on the bill of entry or thereafter pursue the matter in the departmental hierarchy would be an exercise in futility. Furthermore, even in the counter-affidavit the respondents have clearly taken the stance that the petitioner is not entitled to relief under SRO 484. Accordingly, to say as suggested by the learned DAG that the respondents have yet to decide as to whether the petitioner is entitled to the benefit under SRO 484 is quite unconvincing. To wait for the department to process the bill of entry and then frame an assessm ent either on the bill of entry or in a separate speaking order would unnecessarily delay relief. Even if the petitioner is able to secure a finalisation of the assessment of the bill of entry it can hardly be envisaged that there will be a real or any chance for petitioner to expect a relief in the departmental hierarchy. The learned DAG has in this regard vehemently relied upon Section 30 of the Customs Act for the proposition that till such time the petitioner is able to seek an assessm ent on his bill of entry he cannot come to this Court under Article 199. Once again I cannot subscribe to this view as no such interpretation can be borne out from the provisions of the said Section 30. In the present case the petitioner has no doubt filed the bill of entry containing the requisite declarations in terms of SRO 484, and attached copies to the present petition, but has not secured an assessm ent on/of the said bill of entry.
That learned counsel for the petitioner has contended that there is nothing wrong with this course since admittedly through the departmental hierarchy no relief on this score can be sought by the petitioner and getting an assessm ent on the bill of entry is only a mere formality. To a question from the bench as to what ought to be the amount or value of interim relief in the absence of an assessm ent on the bill of entry, the learned counsel has pleaded hat the same can be determined to the satisfaction of the Collector as the calculation of the duty is not in issue. It is only the applicability or otherwise of SRO 484 that this Court has to decide and knocking the doors of other functionaries in this regard is only an illusory exercise. I am of the view that there is nothing wrong with the course adopted by the petitioner who became aggrieved the moment the subsequent notifications dated 4.10.1995 and 29.10.1995 were issued by the CBR. There is formality indication that assessm ent on the bill of entry is a mere formality as is also apparent by the stance taken in the counter- affidavit. I accordingly hold that the petition is not pre-mature while in doing so I may also point out that nowhere in the counter-affidavit has this objection been taken. The stance taken by the learned DAG in this regard is quite at variance with the stance taken in the counter- affidavit wherein it had been categorically stated that the petitioner is not entitled to relief under SRO 484.
14. The next objection by the learned D.A.G, that it is also a matter of dispute as to whether the plant and machinery imported by the petitioner are/are not locally manufactured, the same is also prima facie untenable. The petitioner in this regard has attached as Annexure 1 a copy of a letter by the CBR dated 14.9.1995 confirming that the machineries except diesel generating sets (1,000 KVA) are not locally manufactured and they are to be treated as such. In this regard it may also be stated that this fact has been averred by the petitioner as ground 1(a) while there is no specific denial in the corresponding contents of the counter-affidavit.
15. The last objection of the learned D.A.G, that it is disputed as to whether the proposed site of the unit is in a rural area and not falling under Table 1 of the said SRO 484, is also misplaced. The petitioner has attached as Annexure B-l letter by Government of Sindh dated 14.12.1989 confirming location of the proposed sugar mill to be at Samaro/Kot Ghulam Muhammad/Umerkot in District Tharparkar. At paragraph 2 of the Memo, of the petition this fact has been alleged which has been admitted in the corresponding paragraph 4 of the counter- affidavit. Prima facie the fact that the proposed unit of the petitioner falls in a rural area and does not fall in any of the areas mentioned in Table 1 of SRO 484 is quite apparent.
16. The question which warrants consideration is as to what should be the terms given to the petitioner while granting them interim relief. The learned counsel for the petitioner has submitted that the Court ought to take judicial notice of the fact that it is very onerous for the assessee to arrange a bank guarantee since the same can only be arranged by coming up with a 100% cash margin or collateral. This argument of the learned counsel for the petitioner carries force since there are decisions of our own superior Courts (including PLD 1968 Dacca 276) wherein it has been held that any appeal to a departmental hierarchy conditional upon deposit of the outstanding amount is not an efficacious remedy and the assessee can directly approach the High Court in a Writ Petition. Applying the same analogy I feel that the Courts while granting interim relief in a tax matter ought to consider that it would be completely against the concept of writ jurisdiction to give such terms to the assessee which would amount to directly or indirectly depositing the demand amount. If the assessee is an identifiable person and also holds assets it can be asked not to sell or dispose of that property whereon some lien or charge can be created or otherwise the assessee can be asked to arrange an insurance guarantee, to the satisfaction of Nazir of the Court according to the directions given by the Hon'ble Supreme Court in Trustees of Port of Karachi v.
Manzoor Sons Corporation (1993 SCMR 69). I have also noticed that in income tax matters since the assessee are associated with the exchequer not only in a one-off transaction the Courts have been willing to grant unconditional stays. In the end a lot would depend upon the facts and nature of each individual case and the above are only some guidelines. Although 1 was inclined to direct release of goods upon submission of an insurance guarantee to the satisfaction of Nazir and/or upon an undertaking of petitioners that till disposal of the petition of factory shall not be sold, however, in identical petitions the Lahore High Court in W.P. No. 1174/95 and W.P. No. 1221/95 has granted an interim relief by directing the respondents to release goods in terms of SRO 48 1 subject to the petitioner furnishing an idenmity bond for the disputed amount. Interestingly, in another identical matter the Lahore High Court directed the petitioner to submit a bank guarantee instead of indemnity bond while on appeal in that matter the Supreme Court through order dated 11.2.1996 in Civil Petition No. 695-L/96 modified the order of the Lahore High Court and directed release of goods on furnishing of indemnity bond to the satisfaction of Collector of Customs.
17. As the Honourable Supreme Court has already taken the view on a similar matter we feel bound to offer the petitioner the same terms. It would not be out of point to cite Ashique Hussain v. The State (PLD 1994 SC 879) wherein a full bench of the Supreme Court has sternly admonished the Courts below to follow the decisions of the Supreme Court. Accordingly the respondents are directed to release the goods of the petitioners as per list enclosed an Annexures F-3 and F-4 (ie.
For goods where contracts are finalized prior to 30.6.1995) of the petition in terms of SRO 484(I)/92, dated 14.5.1992 upon the petitioner submitting an indemnity bond to the satisfaction of the Collector of Customs. In view of the delay occasioned in disposing of the listed interim application we direct the Collector of Customs to comply with the instant order as expeditiously as possible without any further delay.
18. Before parting, it is needless to mention that the observation hereinabove are tentative.
Order of the Court.
Application under Order 39 rules 1 & 2 r/w Section 151, CPC (C.M.A.No 5039/95) is allowed in the terms and to the extent indicated below.
(a) The respondents are directed to release the goods of the petitioner as per list enclosed as Annexure F-3 (ie. For goods where contracts are finalized prior to 30.6.1995) of the petition in terms of SRO 484(I)/92 dated 14.5.1992 upon the petitioner submitting an indemnity bond to the satisfaction of the Collector of Customs. In view of the delay occasioned in disposing of the listed interim application we direct the Collector of Customs to comply with the instant order as expeditiously as possible without any further delay.
(b) The office is directed to fix the matter for regular hearing within three months hereof.