JUDGMENT MALIK MUHAMMAD QAYYUM, J. - This judgment shall dispose of W.P. Nos. 2483, 2484, 2485,2486, 2487, 2488, 2489, 3717 and 3718/93, in which identical question falls for determination.
2. The petitioners in all these petitions are importers of Chemicals known as Alco print PTF. And DP 3-2680, which are used as thickness in textile printing. According to the petitioners, these two products have different properties and specifications though manufactured by the same manufacturer. The Department has, however, now taken the view that the two products were the same and, therefore, the petitioners were liable to pay same amount of import duty on DP 3-2680 as was payable in respect of Alco print. It may be stated that earlier in the valuation manual, these two products were separately described and had different values but by an amendment on 2.12.1992 the earlier notification dated 27.10.1992 amended and he entry regarding separate.
Valuation for DP 3-2680 was deleted.
3. Learned counsel for the petitioners in support of this petition has relied upon the reports obtained by the Customs Authorities themselves from the various Laboratories to show that two chemicals, namely, DP 3-2680 and Alco print PTF, are different in nature and the view taken by the Collector that the two chemicals were the same products is based upon misreading of the record. It has been pointed out by the learned counsel that in the impugned order the Collector has himself stated that the reports show that the two products are not the same yet he without any lawful justification and arbitrarily refused to treat the products separately. The learned counsel has also placed reliance upon an order passed by the Finance Secretary Government of Pakistan.
4. It is not necessary to deal with these contentions of learned counsel for the petitioners as Mr. A.
Karim Malik, Advocate, for the respondents has raised a preliminary objection as to the maintainability of these petitions, which is that the petitioners have remedies of appeal/revision available to them under the Customs Act, 1969, which have not been availed of and as suf, these Constitutional petitions are not maintainable.
5. Learned counsel for the petitioners, in his reply, has stated that if an order is void or suffers from jurisdictional defect, it is not necessary for an aggrieved party to avail of the remedies provided by the Statute before invoking Constitutional jurisdiction. In this behalf, the learned counsel has placed reliance upon various precedents.
6. There may not be any cavil with the proposition advanced by learned counsel for the petitioners that if an order is wholly void or is without jurisdiction or nullity in the eyes of law, non-filing of appeal/revision may not bar a Constitutional petition. However, the present cases appear to be different. The real question in controversy between the parties is as to whether DP 3- 2680 is a product/chemical different from Alco print. The Collector has recorded as finding on this question which is primarily of fact, against the petitioners. Even if the contentions of the learned counsel for the petitioners are accepted, the impugned order cannot be said to be at most illegal but it certainly does not suffer from any jurisdictional defect. The petitioners may, if so advised, even now approach the authorities concerned for redress of their grievance by filing appeals/revisions.
7. Learned counsel for the petitioners has voiced two apprehensions in this behalf, firstly, that on account of efflux of time, the petitioners' remedies before the Departmental Authorities may be barred by time and secondly that there is no likelihood of the appeal/revision to be decided in the near future.
8. So far as the question of limitation is concerned, as the petitioners had come to this Court at the earliest by filing Constitutional petitions, they can apply before the competent authority for condonation of delay, which shall, of course, have to take into consideration the effect of pendency of proceedings before this Court while deciding the question of limitation. As regards the second apprehension, suffice it to observe that if any proceeding are filed by the petitioners before the Departmental Authorities, the same shall be decided without any delay. It shall, however, be open to the petitioners to approach this Court again if need be.
These petitions stand disposed of in the above ferms with no order as to costs.