The plaintiff who claims to be a duly incorporated limited company under the provisions of the Companies Ordinance, 1984, has called into question the assessment order dated 30-4-1995 in respect of the Sales Tax passed by the Collector (West) with the following reliefs:---
(i) to hold and declare that the impugned order, dated 30-4-1995 passed by defendant No,2 is illegal and of no legal effect.
(ii) to restrain the defendants particularly Nos.1 and 2 in the enforcement of orders, dated 16-5-1995 and 11-7-1995 and to declare the said demand and order illegal and of no legal effect.
(iii) to grant permanent injunction restraining the defendants particularly Nos.1 and 2 in the realization of illegal demand of Rs,64,26,000 as per order, dated 16-5-1995.
(iv)to suspend the operation of order, dated 11-7-1995 passed by defendant No,1 and to lift the embargo of clearance dated 11-7-1995 imposed by defendant No,1 and to declare the said embargo as illegal and of no legal effect.
(v) to restrain defendants particularly Nos.1 and 2 in resorting to any coercive measure for the implementation of the illegal impugned order, dated 30-4-1995 passed by defendant No,2 and to grant such relief/reliefs as may be deemed fit and proper in the circumstances of the case.
2. On 5-11-1995, when this case came up for hearing of C.M.A. 3707 of 1995, an objection was raised by the learned counsel for the defendants that this suit is not maintainable in view of section 51 of the Sales Tax Act, 1990 (hereinafter referred to as the Act, 1990) where after Mr. Abdul Sattar Pingar, Advocate for the plaintiff was put under notice to satisfy this Court on the point of maintainability of this suit. Thereafter, this case came up for hearing on two occasions i,e,, 28-1-1996 and 27-2-1996 and on both the occasions, learned counsel for the plaintiff was called absent. In this view of the matter, I have proceeded to examine the facts of the case in reference to the provisions of the Act, 1990.
3. It has been admitted in the plaint that in the year 1991, a fixed amount of Sales Tax was applicable on power driven machines comprising Rotary Printing Machines and Jet Dyeing Machines. For such purpose, a Notification bearing No,S.R.O. 781(1)/91, dated 17-8-1991 was issued by the Central Board of Revenue for which rules were framed for seeking exemption which was again notified through S.R.O. 783(1)/91, dated 17-8-1991. It is the case of the plaintiff that they have availed the benefits granted under such notification for the years 1991-92-93. However, defendant No,2, Collector of Central Excise and Sales Tax disagreed with the figures of export which was challenged in this High Court in C.P. No,D-119 of 1994 which petition was disposed of by a learned Division Bench of this Court on 11-11-1991 in the following manner:-- "We have heard the learned counsel at some length. All that remains to be said is that the petitioners in these two Constitutional petitions do not wish to concern themselves with the order, dated 20-5-1993 of the Collector, Central Excise and Sales Tax, Karachi, or for the matter of that any departmental determination so far arrived at in relation to the petitioners' exports of the relevant produce and they would be satisfied if we pass an order to the effect that the relevant departmental functionaries would bring an independent mind to bear as regards adjudication(s) currently pending before them or in matters which may hereafter arise. We have no doubt that the departmental authorities as and when they come to apply themselves on the relevant questions referred above would act within the perimeters of S.R.O. 782(1)/91, dated 17-8-1991, and in the event the petitioners are able to show due cause for exemption such would not be denied to them except in accordance with law. At the same time, however, we should not be assumed to have made any observation either in favour of or against the findings in the aforesaid order, dated 20-5-1993.
2. To the above order, the learned Deputy Attorney-General and the officer present with him consent. The petitions as well as application listed disposed of accordingly."
4. There appears to be some dispute in respect of the assessment of the financial year 1994-95 inasmuch as the plaintiff applied for exemption on the grounds that they have exported 50% of their total production during the preceding financial year which, as alleged in the plaint, was not accepted by the defendants who issued a show-cause notice on 24-10-1995 and being not satisfied with the reply of the plaintiffs, the defendant No,2/Collector passed order on 30-4-1995 which has been impugned in the instant suit. Following is the relevant portion of the order of Collector (West)):--- "In view of the position explained above it is established that Messrs Chemitex Industries Limited, S.I.T.E., Karachi, exported only 0,94,260 (sic) square meter (35.65% of their total production in their own name) while the provisions of the notification required that the option would be available only if the exports exceeded 50% of their total production as the applicants Messrs Chemitex Industries Limited, S.I.T.E., Karachi, have failed to fulfill the conditions as prescribed in the Notification S.R.O.
939(I) of 1995, dated 25-9-1995, therefore, they are not entitled to avail the option of payment of sales tax at the specific rate of 1.25 per square metre. They are accordingly advised to immediately pay the arrears of fixed amount of sales tax for the period from July, 1994 to date on or before the 20th May, 1995 as already communicated vide this Collectorate Letter Co. No, DC/ST/96/P.F/91- 92/Pt. I, dated 1-11-1994. If they failed to do so necessary action for recovery of Government dues shall be initiated against them."
5. Section 51 of the Act, 1990 reads as follows:--- "51. Bar of suits, prosecution and other legal proceedings.---(1) No suit shall be brought in any Civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.
(2) No suit, prosecution or other legal proceeding shall lie against the Federal Government or against any public servant in respect of any order passed in good faith under this Act."
6. It is not shown in the body of the plaint whether any appeal or revision was preferred against the order of defendant No,2. Section -12 of the Act, 1990 provides for appeal against the assessment order made under section 11. Section 45 also provides right of appeal to any person including the Sales Tax Department if aggrieved by any decision or order made under this Act by an officer of Sales Tax lower in rank than a Collector. Accordingly section 45-A authorizes the Board and the Collector to call for and examine the record of any departmental proceedings under the Act, 1990 and to pass any appropriate order. Section 46 provides right of appeal to the Appellate Tribunal against any decision or order passed by a Collector of Sales Tax or by Collector of Sales Tax (Appeals). Against the order of Appellate Tribunal, there is a provision to make reference to the High Court within 60 days authorizing the Tribunal to refer to the High Court any question of law arising out of such order. Without invoking all these forums, the plaintiff has rushed to this Court challenging the assessm ent order which is barred under section 51 of the Act, 1990. Nowhere in the entire pleadings any mala fide is alleged against the defendants. All the questions raised in this suit could have been agitated before the Appellate Tribunal. It is settled law that where the legislators have provided a particular forum for redressal of the grievance, the same could not be circumvented by invoking jurisdiction of the Civil Court. It is not shown in the plaint that the authority which passed the impugned order was not lawfully constituted; that the order under challenge is mala fide and without jurisdiction or that the plaintiff's right to natural justice was violated while passing impugned order. All these ingredients being missing in the plaint, the ouster of jurisdiction of a Civil Court as provided in section 51 of the Act, 1990 is complete and this Court has no jurisdiction. Reliance is placed on a Full Bench case of Hon'ble Supreme Court in Abbasia Cooperative Bank and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3. This suit being incompetent and barred under section 51 of the Act, 1990, is liable to be buried at the initial stage.
7. As a result of the above discussion, the plaint in the above suit, stands rejected with no order as to cost.