JUDGMENT: NASLM SIKANDAR, J.--(1). This Constitutional petition has been brought at the instance of a manufacturer of foam seats of tractors. He claims to have enjoyed exemption from the levy of excise duty since 1993 when he was registered as a manufacturer with Central Excise Department.
During this period allegedly no one from the Revenue ever raised an eye brow on his claim that he was manufacturing a part or a component of tractor which enjoyed exemption in its entirety.
However, on 9-10-1996 the Assistant Collector concerned served a notice alleging that the article manufactured by him was classifiable under Chapter 94 of the Pakistan Customs Tariff and not under the heading 8708 as claimed by the petitioner. In defence it was pleaded that the heading invoked by the authorities was attracted only in cases of articles of furniture and beds etc. Nothing said by the petitioner however, appears to have convinced the authorities which proceeded to hold him liable to pay central excise duty at the rate of 5% in the light of S.R.O. No, 546(I) of 1994, dated 9-6-1994. The petitioner was also penalized for contravention of various provisions of the Central Excises Act, 1944 and the Rules framed thereunder. His appeal before the first Appellate Authority, Collector Appeals was still pending when another order for the remaining period was passed imposing excise duty at the above rate by treating the articles manufactured as classifiable under the heading 9401. Appeal against the second order was decided against the appellant on 9-3-1999 with reference to C.B.R. Letter No, 1(10)CEB of 1995 dated 9-9-1998. In the petition it is alleged that during hearing of the further appeal before respondent No, 2 Customs Excise & Sales Tax Appellate Tribunal, one of the learned members observed that due to the clarification issued by the Central Board of Revenue through the aforesaid letter dated 9-9-1998 nothing could be done for the petitioner as the said letter was binding upon the Tribunal. For these and various other reasons, the petitioner submits that the view adopted by the Tribunal is not correct and that the article manufactured by him squarely falls under heading 87 of the PCT and its treatment under any other heading is factually incorrect and logically acceptable. By way of this petition, he wants this Court to declare that foam seats of tractors being a part of tractor fall under the heading 87 of the PCT and under no other heading.
2. Learned counsel for the petitioner on the question of maintainability of the petition relies upon re-Adil Polypropylene products Limited v. The Federation of Pakistan through Secretary Finance, Federal Secretariat, Islamabad and others ([1997] MLD 2189) and re: Pakistan Oxygen Ltd. v Central Board of Revenue and others ([1989] PTD 818).
3. Mr. A. Karim Malik, learned Legal Adviser for Central Board of Revenue has put in appearance at the pre-admission stage. Agreeing that the instructions issued by the Central Board of Revenue are not binding upon the authorities entrusted with quasi judicial functions much less to say of Customs Tribunal, he nevertheless opposes the maintainability of the petition. He stresses that the petitioner already being before the Tribunal could cite any law or precedent in support of his grounds taken before the Tribunal. Also that entertainment of the petition by this Court during the pendency of appeal before the Tribunal would be against the ratio settled by the Supreme Court of Pakistan in re: Nagina Silk Mills v. I.T.O. (PLD 1963 SC 322).
4. I will agree. The cases relied upon by Mr. Shafqat Mehmood Chohan are clearly distinguishable inasmuch as the petitioner has already travelled through some of the forums provided under the law. His appeal before the Customs Tribunal is still pending in which injunction order restraining the recovery of disputed amount has also been made in his favour. In such situation, the entertainment of the petition or to make the kind of declaration prayed for by the appellant will not only frustrate the whole scheme of the law providing for various stages and forums of appeal but also will amount to pre-suppose an order by a judicial authority namely the Customs, Excise and Sales Tax Appellate Tribunal. The alleged remarks made by one of the learned members of the Tribunal do not mean anything unless brought into black and white by way of an order. Courts and Tribunals only speak through orders and their oral remarks cannot be made a subject matter of judicial scrutiny before another or a higher forum. Neither such remarks can be made a basis to seek or grant relief. Learned counsel for the petitioner has not been able to convince me that the remedy already being availed by the petitioner is not adequate as contemplated in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Issuance of a writ of the kind as prayed for is an extraordinary remedy and therefore cannot be made resort to as a matter of course. By its very nature it comes into notion only where either no alternate remedy is available or if available it is not effective enough to save a party from a patent illegality or glaring injustice. The phrase alternate remedy and its effectiveness in the facts of a particular case has been considered in a number of cases by the superior Courts. Obviously the effectiveness of a remedy in a particular situation will have to be seen in the prospective of all the attending circumstances and therefore, no hard and fast rule in this regard can be settled as a fixed principle to be followed in future. In cases of the kind before me however, the legal position seems relatively clear. It is that when a party has already opted to approach a forum of competent jurisdiction, then it cannot be allowed to jump that forum unless some extraordinary situation in the meanwhile has emerged to make availing of the remedy to be an exercise in futility.
5. The view of the Supreme Court as well as of this Court on the issue is quite clear. Two cases decided by the Supreme Court are directly relevant on the issues. These are reported as re: Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCM R 1810 and re: H.M. Abdullah v.
Income Tax Officer, Circle v. Karachi and 2 others (1993 SCM R 1195). In the first reported judgment the assessee/respondents were before the Tribunal for the redressal of their grievances. During the pendency of the appeal they approached the High Court in its Constitutional jurisdiction which was allowed by a Division Bench of Sindh High Court whereby the order passed by the Wealth Tax Officer treating the disputed properties as "assets" of the assessee was declared as without lawful authority and of no legal effect. The Supreme Court on appeal by the Revenue disapproved the exercise of constitutional jurisdiction by the High Court when the party was in midst of statutory remedies. While accepting the appeal of the Revenue and setting aside the order of the High Court their Lordships reproduced the following part of an earlier order of the Court recorded in re: Commissioner of income tax Companies-II and another v. Hamdard Dawakhana (Waq ), Karachi (PLD 1992 SC 847).
"Before parting with the judgment we may observe that in cases where any party resorts to a statutory remedy against an order he cannot abandon or by pass it without any valid and reasonable cause and file Constitution petition challenging the same order. Such practice, in cases where statute provides alternate and efficacious remedy up to High Court, cannot be approved or encouraged."
6. In the second case re: H.M. Abdullah (Supra), the assessee challenged the issuance of notices under section 65 of the Income Tax Ordinance, 1979. His Constitutional petition was entertained.
However, at a later stage, the Court allowed the Assessing Officer to proceed with the assessment proceedings. These were accordingly concluded. In the meanwhile, the writ petition came up for hearing before a Division Bench of the Karachi High Court and was decided against the Revenue inasmuch as issuance of notices under section 65 of the Income-tax Ordinance, 1979 was found to have wrongly been issued at the advice/direction of the I.A.C. their Lordships of the Supreme Court reversed the order recorded in the writ petition by the High Court by observing that all the points urged before the High Court in its Constitutional jurisdiction could be raised in reference application under section 136 of the Income Tax Ordinance, 1979. Further that it was clear that for all intents and purposes on the passing of the assessment order by the Income Tax Officer the writ petition became infructuous, as an alternate remedy in terms of Article 199 of the Constitution was available to the appellant.
7. Likewise in a recent judgment reported as re: Sameer Electronics v. A. C of Income Tax, Lahore (1996 PTD 36) this Court refused to entertain a Constitutional petition under Article 199 of the Constitution and rejected the contentions similar to those now being made by the learned counsel before me.
8. Since the decision of the Supreme Court in re: Nagina Silk Mills v. I. T. 0 (Supra) till its re- affirmation in the above cited two cases and even thereafter no authoritative precedent appears to have interpreted Article 199 of the Constitution in a favourable manner which could be called for help by the petitioner. The Supreme Court of Azad Jammu and Kashmir in judgment cited as re: Abdul Rehman v. I. T. O. Mirpur (1993 CLC 1101) followed the view held by the Supreme Court of Pakistan in the aforesaid judgments. In the case relied upon by the learned counsel re: Adil Polypropylene Products (Supra), the petitioners had challenged one of the Central Excise Rules by making a direct approach to the High Court though they could file an appeal. A Division Bench of Peshawar High Court entertained the petition but finally rejected the same on the ground that the contentions in respect of notification in question involved questions of fact which could not be determined in Constitutional petition. In the other case relied by the learned counsel re: Pakistan Oxygen Ltd. (Supra), a Division Bench of the Karachi High Court expressed the view that the petitioner having availed the remedy before the authority which was at the apex in the hierarchy of the Department no useful purpose could be served by directing him to avail the remedy of appeal or revision under the relevant statute which in the circumstances of the case was illusory. In this petition the facts, however, are altogether different. The petitioner has challenged the assessment order and his first appeal before the Collector and the second appeal before the Tribunal are still pending. According to the contents of the petition, he has already been allowed partial hearing and interim relief as well. No fact has been brought home or even alleged which would justify entertainment of the petition at this stage when the petitioner is already before a competent forum which can decide the issues raised in the petition.
9. Besides the above, there is another good reason to refuse entertainment of this petition. It is the ultimate effect which a decision on this petition will have at the end of the day. Any kind of relief or its refusal in this petition will frustrate the provisions providing for appeals to the Customs Tribunal under section 35-B and to the High Court under section 36-C of the Central Excises Act, 1944. In other words, entertainment of this petition will result in jumping over two forums prescribed under the law. One of the forums being this Court as well. An order recorded in this petition will render infructuous the proceedings before the Customs Tribunal and there will be no occasion for any party to take the issue to this Court in its appellate jurisdiction,. Exercising Constitutional jurisdiction in a manner to forestall or frustrate the appellate jurisdiction of this Court on the facts available will be totally unconstitutional.
10. It shall accordingly be refused.
11. Dismissed in limine.