1. ' M. A. RASHID, J.-This petition arises out of the refusal of the Sales Tax Authorities to allow refund of sales tax under section 27 of the Sales Tax Act, 1951 (hereinafter referred to as the Act). This tax amounting to Rs, 62,025 was paid on goods imported by the petitioners. The petitioners are admittedly unlicensed manufactures, though application for registration as such for the year 1970- 71, was filed by them, on 10th. November 1970. They filed their return for the year 1970-71 on 2-5-1973.
2. A revised return was filed by them on 6th of June 1973. In the meantime a demand of Rs, 60,326 was made as sales tax dues on the manufactured lifts. One of the grounds of non-payment of this demand was that they had claimed refund of the amount of Rs, 62,025 under section 27. Other grounds of non-payment of the demand are not relevant for the purposes of this present petition.
3. However, the application for the refund of sale tax paid earlier was refused on 18th of June, 1973 and the main ground for such refusal was that the petitioners were not licensed manufacturers. As regards the application filed by the petitioners for the grant of license under section 8 of the Act the Sales Tax Officer in his order dated 18th June, 1973 declared that the petitioners had not submitted their quarterly returns in spite of repeated reminders during the period 5th February, 1971 to 14th of November 1972. Such returns, accordingly to the sale tax officer, were filed as late as 2nd of May, 1973, but even by that date the liability of sale tax was not discharged, which is a condition precedent for the grant of such license. It was also observed that the copy of the deed, under which the Firm was established, had not been filed as required by the rule (1) (d) of the Sale Tax Rules.
4. ' Aggrieved by the order of the Sale Tax Officer, the petitioner preferred an appeal before the Income-tax Appellate Tribunal who by their order dated 27th of June, 1974, refused to interfere with the order of the Sale-tax Officer. At the time the Constitutional petition was filed an application for filing a reference to the High Court under section 17 had been moved before the Income-tax Appellate Tribunal, It may be mentioned here that the concept of entitlement to the refund of sales-tax, on the basis of a license under section 8 of the Act was done away with by an amendment brought in the Act through the Finance Act of 1972. Before that this section in its subsection (1) enjoined upon a manufacturer, producer or exporter to take out an annual license, on prescribed conditions, on the payment of a fee of Rs,
5. In its section 27, the Act had made provision for the refund of sales-tax paid on imported goods or on any previous sale, provided such goods were partly manufactured goods and were purchased by a licensed manufacturer.
5. ' Finance Ordinance, 1972 materially changed section 8 and the condition to take out a licence was kept only with respect to an exporter. A manufacturer or a purchaser was no longer required to take out such license. Consequential amendments were made in subsection (1) of section 27 whereby a manufacturer became on titled to the refund of any tax paid by him on the purchase of partly manufactured goods through importation, or any tax paid on any previous sule of each goods.
6. ' Mr. Fazlur Rahman the learned counsel for the petitioner contends that the right to the refund of sale-tax even prior to the amendment of section 27 in 19,2, was not contingent upon the grant of a licence. He contends that this right existed independent of such grant. Alternatively, it is contended that the grant of licence is a matter purely procedural in nature and the amendments carried out in 1972, whereby the condition of obtaining a licence was deleted, was also of a procedural nature.
7. In this view of the matter, Mr. Ftalzur Rehman contends that this amendment has retrospective application. Therefore, it is further argued, the benefits of 1972 amendment would be available even for previous years, and as such refusal to grant refund on the sole ground that the petitioners did not hold a licence is not tenable in law. Mr. Rehman further contends that in any case the act of the sales tax authorities in refusing to grant or reject the application was extremely unfair and in the absence of a decision, either way, on such application the respondent could not, in law, proceed to determine the question of refund under section 27. According to the learned counsel it was incumbent upon the sales tax authorities to decide the application pending with them for the grant of a licence. Not having decided that application, a decision under section 27 was premature, uncalled for and not sustainable.
8. ' Mr. S. A. Nusrat the learned counsel for the respondents contends that in view of the law laid down by a Division Bench of this Court in National Products Company v. Commissioner of Sales Tax (1) the petitioners being unlicenced manufactures are not entitled to the refund of the sales tax.
9. Secdndly, it is asserted that the application of the petitioners for registration as licenced manufacturer stood rejected by the order of the Sales Tax Officer dated 18th June, 1973.
10. ' Apart from these contentions raised on the merits of the case. Mr. Nusrat challenges the very maintainability of the petition. The learned counsel contends that Chapter X of the Act provided that an assessee could move the Appellate Tribunal to make a reference to the High Court on a question of law arising out of an order of the Tribunal, and that such an application under section 17 (1) of the Act had admittedly been filed in October 1974. It is, therfore, contended that during the pendency of that application, invocation of the jurisdiction of this Court of the Constitutional side would not be permissible.
(1) (19741 29 Taxation 111 ' Mr. Faztur Rehman during the Courts of the arguments made a statement that such application for reference had been rejected. But at the same time he submitted that he was not in a position to give the date of the order of rejection. He was allowed time to ascertain the correct position and thereafter ne stated that a direct reference bearing No, 79/1976 had been filed in this Court in the month of March 1976, under the amended provisions of section 17 of the Act. In view of this factual position Mr. Nusrat pressed his objections against the maintainability of the petition more vehemently. Mr. Rahman, on the other hand, contends that section 17 of the Act does not provide an efficacious, speedy or convenient remedy and therefore, in view of the law laid down by their Lordships of the Supreme Court in Nagina Silk Mills' case (1) he could always invoke the constitutional jurisdiction of this Court. But the ratio of decision in Nagina Silk is that in cases where the impugned orders are passed in the absence or excess of jurisdiction or suffer from illegality on the face of the record, a certiorari can be granted even though a right of statutory appeal had not been availed of. It is with this condition precedent that the absence of an efficacious, speedy or convenient alternative remedy , provides an additional ground for invoking the writ jurisdiction.
11. Here in the present cases neither any objection to the abuse of jurisdictional power is taken nor an illegality, on the face of record is alleged. The main grievance against the sales tax authorities is the manner in which they have chosen to interpret the provisions of section 8 and 27 of the Act. In such circumstances the authority contained in the case of Nagina Silk Mills cannot be of any avail to the petitioners, In the absence of any jurisdictional error, and specially where a person has elected to pursue the statutory, remedy, he cannot be permitted to invoke constitutional jurisdiction of this Court. In the present case the reference under section 17 (1) of the Act lies to this Court. In such a case the argument of alternate remedy not being equally efficacious speediy or convenient will not be available to the petitioners. I am fortified in this view by the dice of their Lordships in the case of Bashir & Co. v. Income-tax Officer (2) which was a case under the Income-tax Act, and wherein their Lordships of the Supreme Court have held that where a petitioner had not availed of the special remedy provided in the Income-tax Act under section 66 (1), he was not entitled to move the High Court in writ jurisdication; and that permitting him to do S3 would not only amount to bypassing the jurisdication vested by law in the special tribunal, but also amount to non- compliance with the requirements of -Article 98 of 1952 Constitution. Similar view was expressed in Nagina Dal Factory v. Income-Tax Officer (3) It may be mentioned that provisions of section 17 of the Sales Tax Act are similar to those of section 65 (1) of the Inlome-tax Act. In the case of Habib Ahmed Khan v. Income-t a Officer (4) it was held that a person, who has filed an appeal under the statutory provisions, cannot be allowed to pursue alternate remedy under Article 98 of the last Constitution. Their Lordships observed:- "that when the petitioner had elected first to follow the remedy of appeal he could not be allowed to simultaneously pursue an alternate remedy under Article 93 of the Constitution of 1962."
12. ' Similar view was expressed in Steel Brother & Co v. The Central Board of Revenue (5) wherein the Tribunal had referred the matter to the High Court
(1) PLD 1963 SC 322 (2) 1968 SCM R 997
(3) 1972 SCM R 556 (4) 1968 SCMR 1035
(5) 1968 SCMR 374 ' under the relevant provisions of Income-tax Act and in such circumstances, their Lordships of the Supreme Court held that, it would be circumventing the provisions of the Income-tax Act if parallel proceedings are started under Article 98 of the Constitution to deal with the same question.
13. In view of these authorities and the circumstances of this case I have come to the conclusion that during the pendency of a reference under section 17 of the Act, a petition for the grant of an order under Article 199 of the Constitution in premature and cannot be entertained at this stage. As those proceedings are pending we would refrain from expressing any opinion on the merits of the case.
14. The petition, therefore, stands dismissed with costs.