AMJAD ALI, J.--(l). In July, 1995, Water and Power Development Authority (WAPDA), pursuant to a World Bank Project through public advertisement invited tenders for the supply of Transmission Line Towers. In response to the said advertisement, only the Pakistan Engineering Company Limited
(PECO) and the petitioner's Company submitted their bids. Although the bid submitted by PECO was the lower, WAPDA turned down the same because of its past performance and consequently with the concurrence of the World Bank, the offer of the petitioner's Company was accepted on the 28th March, 1996, and a contract in this behalf was executed on the 21st May, 1996.
2. For the manufacture of contracted Transmission Line Towers, steel Angles with equal sides of thickness of more than 2.5 mm were required. According to the petitioner, by virtue of the Central Board of Revenue Circular No. CGO 17/94, only three industrial and engineering units in the country, i.e., the Pakistan Steel, Ittefaq Foundries and the petitioner's Company possessed the necessary facilities, capability and expertise to manufacture steel Angles of equal thickness of 2.5 mm or more. In this context, it was claimed by the petitioner's Company that with the passage of time, it had lost its own capabilities to produce the steel Angles of requisite thickness. On the other hand, Pakistan Steel manufacturers billets only, while Ittefaq Foundries had been closed for quite some time. Even two other concerns, namely, the Metropolitan Steel Company and Pakistan Engineering Company Limited (PECO) which could manufacture requisite Angles were not in a position to satisfactory meet the requirements for various reasons. ] 3. Nevertheless, all these units were duly addressed for I intimating if they could supply the Angles of required j measurement and quality vide communication, dated 24.10.1995, followed by reminders, but no one made any response to the petitioner's enquiry. Ultimately, through an advertisement in daily 'Dawn' Karachi, published on the 31st March, 1996, the petitioner's Company invited tenders for supply of steel Angles of requisite specification. According to the petitioner, no one expressed willingness for supply of Angles till the last date i.e., the 10th April, 1996, fixed for that purpose. Being satisfied that the Steel Angles of requisite specification were not being manufactured in the country, the petitioner with the intention to import the Angles from abroad applied to the Central Board of Revenue for exemption from, levy of customs-duty thereon in accordance with Board's Notification No. SRO 671(I)/94, dated the 3rd July, 1994. Consequently, a Provisional Certificate numbering 2(37) Survey-II/96, dated 9.4.1996, was issued by the Central Board of Revenue in favour of the petitioner's Company for exemption of customs-duty on import of 8600 tons of Angles (with equal sides) and 450 tons Zinc Ingot for construction of 132 KV Transmission Towers. The petitioner, in this respect, also obtained a certificate from the Board of Investment, Government of Pakistan on 13.08.1996 to the effect that the steel Angles of requisite specification were not being manufactured locally.
4. On the basis of the aforesaid Provisional Certificate, the petitioner Company imported the requisite steel Angles from abroad. But in the meanwhile, in order to stop the clearance of the goods imported by the petitioner without charging the customs-duty, the State Engineering Corporation and PECO (respondent Nos. 4 and 5) respectively allegedly started writing letters to the concerned authorities. In consequence of these alleged mala-fide representations, the Central Board of Revenue by its order, dated 30.11.1996, withdrew the Provisional Certificate, dated 9.4.1996.
The petitioner Company has, therefore, brought this Constitutional petition seeking declaration that the withdrawal of Provisional Certificate was illegal, arbitrary, without lawful authority and of no legal effect and it was entitled to release of the goods imported by it without charge of customs- duty and demurrage.
5. The petition was vehemently opposed by the respondents, mainly on the ground that H.S. Angles imported by the petitioner's Company were actually 'Hot Rolled' which were being manufactured locally and thus petitioner was not entitled to the concession of exemption of customs-duty under Notification No. SRO. 671(I)/94, dated the 3rd July, 1994. I have heard the learned counsel representing the parties at length. On behalf of PECO (respondent No. 5), even the specimens of 'Hot Rolled' and 'Cold Rolled' Angles were also shown in the Court to emphasise their point of view.
6. The learned counsel representing the petitioner contended that it was the earnest desire of the petitioner's Company to procure Angles with equal size of thickness of more than 2.5 mm required for construction of Transmission Line Towers from the local market, but, since its all efforts had not borne fruit, the Company was constrained to import such material required for construction of Transmission Line Towers from abroad. In this respect, only respondent No. 5 had, at a very late stage, made an offer to provide the requisite raw material but such offer was malafide as in the first place price quoted by respondent No. 5 was a bit higher than the price quoted by it for supply of finished Transmission Line Towers. According to the petitioner all these subsequent tactics adopted by respondent No. 5 were for the sole aim to restrain the petitioner from successfully meeting its obligations under the contract. In order to achieve the said object respondent No. 5 had also been addressing to various authorities, including Customs Department asking them not to clear the goods imported by the petitioner. It was further alleged that it was petitioner's bad luck that Dr. M. Ikram-ul-Haq Shaikh who is the Vice-Chairman of the Engineering Development Board, Islamabad (respondent No. 2) is also the Chairman of State Engineering Corporation and Pakistan Engineering Limited Corporation, respondent Nos. 4 and 5 respectively. Consequently, Dr. M. Ikram- ul-Haq in his capacity of Chairman Engineering Development Board had been addressing letters, including to the Central Board of Revenue, for withdrawal of the Provisional Certificate issued in favour of the petitioner. Resultantly, respondent No. 1 acting on the advice of Dr. M. Ikram-ul-Haq by its notice dated 30.11.1996, withdrew the Provisional Certificate issued in favour of the Petitioner's Company on 9.4.1996. When the petitioner approached respondent No. 1 for the injustice was done to it, the petitioner was referred to respondent No. 2 which in turn referred the matter to a Committee under the Chairmanship of Dr. M. Ikram- ul-Haq for examination of the matter. The Committee, however, did not make the determination of the dispute for considerable time for which the petitioner was constrained to assail the withdrawal of the Provisional Certificate through the present Constitutional petition.
7. It was thus contended that the Central Board of Revenue or its functionaries could not withdraw the Provisional Certificate under which the petitioner's Company had acquired a vested right to import requisite steel Angles. In this regard, the learned counsel has relied upon the Pakistan through Secretary, Ministry of Finance vs. Muhammad Himayat Ullah Farrukh (PLD 1969 SC 407), claiming that, since in pursuance of the Provisional Certificate, the goods have already been imported and lying at the Karachi Port, under the principle of locus Poenitentiae, the Central Board of Revenue was not empowered to cancel or withdraw the Provisional Exemption Certificate. On the same principle, the learned counsel also referred to Muhammad Aslam vs. Karachi Metropolitan Corporation through its Mayor and another (1993 M LD 1011) and Dr. Gulab Sher Vs. Government of N.W.F.P, through Chief Secretary and 4 others (1995 CLC 574), claiming that, since decisive steps had already been taken for import of Angles equal thickness of 2.5 mm or more the power to withdraw the Provisional Certificate was no longer available with respondent No. 1.
8. There is, however, a big question mark that the principle of locus Poenitentiae will be applicable in the instant case. In the first place, it is the case of both the parties that only a Provisional Certificate for import of specified quantity of steel Angles and Zinc Ingots free of customs-duty was allowed. The word "Provisional" clearly indicates that it was not a final certificate exempting levy of customs-duty and other taxes. In other words, something more has to be done before allowing final exemption from payment of such duties and taxes. In this respect, it would be pertinent to reproduce below clause (2) of Note to the Provisional Certificate, dated the 9th April, 1996:- "(2) The concession on raw materials would not be admissible retrospectively if at any stage it is found that raw materials allowed under this certificate are manufactured locally or hit by CGO.
17/94 dated 30.10.94."
9. It is evident from the aforesaid clause (2) that final exemption from levy of duties and taxes was yet to be determined after verification that the proposed steel Angles and Zinc Ingot were not manufactured locally and that the imported goods conformed to the conditions laid down in the Central Board of Revenue, Customs General Order No. 17 of 1994, dated the 30th October, 1994. Th claim of the petitioner on the other hand, is that the requisite steel Angles were not being manufactured locally and that the imports thereof did not attract the provisions of the aforesaid Order. In this regard, citing CGO No. 17 of 1994, the petitioner itself admitted that three units, namely the Pakistan Steel Mills Corporation, Karachi, Ittefaq Foundries Lahore, and the petitioner's Company could manufacture steel Angles of 2.5 mm thickness or more. Nevertheless, according to the petitioner none of these units were presently in a position to manufacture the requisite material. The respondents ' are, however, of the view that right from the beginning, the petitioner had obtained the Provisional Certificate by concealing the true facts from the concerned authorities. It was contended that the petitioner had, under the cover of Provisional Certificate, imported 'Hot Rolled Angles' which were being manufactured in the country by more than fifteen engineering units, while the Provisional Certificate was obtained for import of 'Cold Rolled Angles'.
10. The learned counsel for the petitioner, however, very candidly admitted during his arguments that the petitioner's Company had imported 'Hot Rolled Angles', but contended that the Provisional Certificate does not make any such distinction and speaks only of steel Angles, hence, there could not be any concealment of facts. But in view of this admission, the claim of the respondents that several engineering and industrial units were manufacturing steel Angles of equal thickness of 2.5mm or more through hot rolled process stands established. Further, C.G.O. No. 17 of 1994 clearly provides that steel Angles of more than 2.5mm thickness were being manufactured in the country.
In this connection, the petitioner's claim that Pakistan Steel Mills was engaged in manufacturing of billets only, while Ittefaq Foundries were closed for sometime is also not supported by any direct evidence. For its ownself, it was claimed that because of lack of replacement it had lost its other engineering units (not mentioned in C.G.O. No. 17 of 1994), namely the Metropolitan Steel Company and Pakistan Engineering Company (PECO) for the reason that former was facing financial problems while PECO (respondent No. 5) was not reliable, because of its track record for which its tender, although being lowest, was not accepted by the WAPDA and secondly high costs of manufactured goods quoted by it was not acceptable to the petitioner. Nevertheless, the reasons putforth by the petitioner do not seriously controvert the claim of the respondents that several engineering units in the country were in a position to manufacture Hot Rolled Steel Angles of 2.5mm thickness or more. In this regard, the petitioner's assertions in respect of capabilities of other industrial and engineering units without any material of the record or the alleged financial problems of any unit or the past performance of any unit do not prove that these units were not manufacturing steel Angles of requisite thickness or entitle the petitioner to import such steel Angles free of customs-duty.
11. In its application of the 8th April, 1996, through which Provisional Certificate was sought and the reminder of the 9th April, 1996, the petitioner had not disclosed that the goods intended to be imported were not being manufactured locally. In this respect, the Central Board of Revenue and its functionaries who were required to make proper inquiry before issuing the requisite Certificate had also not acted diligently. Instead the Provisional Certificate was issued mechanically within one day. The claim of the petitioner that before approaching the Central Board of Revenue every effort was made to collect the information if the steel Angles of equal thickness of 2.5mm or more were manufactured locally or not, in these circumstance does not appear to be correct, particularly as according to the contents of Central Board of Revenue CGO No. 17 of 1994 and petitioner's own saying at least five engineering units in the country were capable of manufacture of such material (CBR claims the number of such units to be more than fifteen).
12. It is an admitted fact that petitioner's bid was accepted by WAPDA on the 28th March, 1996, and the contract in this behalf was executed on the 21st May, 1996. The tender for M.S. Angles and Billets on behalf of the petitioner was published in daily Dawn on 31-3-1996 whereby last date for receipt of tenders was fixed as 10-4-1996. But surprisingly without waiting till the last date fixed for submission of offers, the petitioner applied for Provisional Certificate on 8-4-1996 and obtained the said Certificate on 9-4-1996. Further, this tender inquiry was made for supply of 2400 metric tons of M.S. Angles and 6000 metric tons M.S. Billets, while the Provisional Certificate was obtained in respect of 8600 metric tons M.S. Angles and 450 metric tons Zinc Ingots. These dates and variations in the quantity of requisite M.S. Angles in the tender inquiry and the actual imports made under the Provisional Certificate clearly belie the claim of the petitioner that before seeking Provisional Certificate it had made all enquiries that the requisite steel Angles were not being manufactured locally or the total imported goods were required to meet the WAPDA contract. There is no doubt that subsequent enquiries as to whether the petitioner was entitled to import of M.S. Angles free of customs-duty were initiated on behalf of PECO (respondent No. 5), but the same could not be held to be mala-fide as the petitioner's own conduct in obtaining the Provisional Certificate was not very transparent and clear from doubt.
12. An objection as to the maintainability of the present Constitutional petition in this Court was also raised on behalf of respondent No. 1 on the ground that, since the assessment of customs-duty was to be made by the Collector of Customs, Karachi, the petition could only be filed in the High Court of Sind. In this regard, reference was also made to Sandalbar Enterprises (Pvt) Ltd. Vs. Central Board of Revenue and others (PLD 1997 SC 334). This issue, however, stands settled by the honourable Supreme Court in Flying Kraft Paper Mills (Pvt) Ltd, Charsadda vs. Central Board of Revenue, Islamabad and 2 others (PTCL 1998 CL. 1 = 1997 SCM R 1874), wherein the dictum laid down in the case of Sandalbar Enterprises (Pvt) Limited (Supra) was also taken into consideration. It was held therein that 'where in the writ petition filed after post-remand proceedings, not only the order of Collector was challenged but relief was also claimed against C.B.R, it could not be argued that in the circumstances, the Rawalpindi Bench of Lahore High Court had no territorial jurisdiction in the matter, and both the High Court at Peshawar and the Rawalpindi Bench of Lahore High Court will have concurrent jurisdiction as in the case not only the order of Collector of Customs and Excise, Peshawar, was in question but relief was also sought against the Central Board of Revenue which functions at Islamabad. In the instant case as well, the main relief has been claimed against the Central Board of Revenue which had withdrawn the Provisional Certificate issued to it on 9-4-1996, the present petition could be filed at this Bench having concurrent jurisdiction.
13. Dr. G.S. Khan, Advocate, the learned counsel representing respondent No. 5 contended that Transmission Line Towers could only be manufactured from the Hot Rolled Angles which are being manufactured in the country. But in order to acquire financial gains illegally, the Provisional Certificate was obtained without disclosing the true facts to the Central Board of Revenue. In this respect, it was claimed that one consignment has already been got released by the petitioner under the cover of Provisional Certificate, dated 9-4-1996. It was also urged that, since the petitioner's Company was itself to be blamed for concealing the true facts from the Central Board of Revenue, it can not claim the action of respondent to be mala-fide as, in fact, respondent No. 5 had brought the correct picture before the concerned authorities. In this respect, he also relied upon the Board of Intermediate and Secondary Education, Lahore through its Chairman and Controller vs. Mst. Salma Afroze (NLR 1992 SCJ 497) and urged that every authority or tribunal has the suo motu power to recall or review its order obtained by fraud or misrepresentation.
14. In the instant case, whether the petitioner had done it intentionally or otherwise, it is clear that the complete facts were not brought before the Central Board of Revenue before obtaining the Provisional Certificate in respect of steel Angles to be imported by the petitioner, hence no interference by this Court is called for to give perpetuity to an exemption from payment of duties which was otherwise not admissible. In this respect, support is drawn from Province of the Punjab through Secretary, Health Department vs. Dr.S. Muhammad Bukhari (PLD 1997 Supreme Court 351), wherein it was laid down by the Supreme Court that High Court could not in exercise of its discretionary jurisdiction interfere in matters where the order passed by an authority was strictly not legal. In the instant case, the steel Angles of equal thickness of 2.5mm, or more were being manufactured locally and thereby permission for import of such articles free of customs-duty was clearly against the public policy. Such concession as referred to in the cancellation order, dated 30-11-1996, could not be allowed to continue. In view thereof, present petition being devoid of any merit is dismissed without any order as to costs.