JUDGMENT.
Brief facts out of which the present writ petition arises are that the petitioner is a manufacturer of cotton yarn which was subject to duty under the Excise Duty on Production Capacity (Cotton Yarn)
Rules, 1968. On 5-11-1974 Messrs Paul Corporation, Karachi owners of a licensed ware house applied to the Deputy Superintendent, Central Excise and Land Customs Circle, Karachi for permission to remove from the petitioner's Mill 872 bags of Hard Waste. The aforesaid application was submitted in Form A.R.III. In the remarks column Deputy Superintendent, Central Excise, Karachi certified as under: "Certified that Messrs Paul Corporation KYC; are holding Bond B-5 (GEN-SUR) No.16, dated 27-1-1969 for Rs.1,00,000 and No.23, dated 6-4-1970, for Rs.2,00,000 and the balance after this transaction stands Rs.1,01, 313. "
The Superintendent, Central Excise, Lyallpur (Faisalabad) granted permission to the Messrs Paul Corporation, Karachi for removal of the applied for bags of Hard Waste. Messrs Paul Corporation, Karachi removed the consignment from the Mills premises on 5-11-1974 under the supervision of the Excise Official at Faisalabad who certified this clearance vide Annexure "A". The consignment of Hard Waste in question was re-warehoused at warehouse of destination at Karachi on 11-I1-1974.
The Central Excise Officials at Karachi issued certificate to this effect as is evident from Annexure "B". The consignment in question was finally lifted for export vide AR4 No.339, dated 14-11-1974 and duly exported vide shipment certificates born on said application as is evident from Annexure "C".
The Deputy Collector Customs, Lahore issued show-cause notice to the petitioner on 1-11-1997 on the allegations that petitioner had cleared 872 Boras of Hard Waste weighing 87100 Lbs. Under AR3 No.5, dated 5-11-1974 for transport to the licensed warehouse of Messrs Paul Corporation, Karachi.
The consignment in question was booked through Tata Co. Factory Area, Faisalabad and the mode of transport was shown as "by cart in AR3 application and then on wagon or by truck. Further allegation alleged in the show-cause notice that on inquiry it was found that the goods in question were removed on trollies to the premises of Kisan Cotton Factory instead of the premises of Tata Co. As shown in the relevant AR3 Form for transport to its destination at Karachi. It was, however, alleged that Kisan Cotton Factory where the goods were. Removed does not possess an excise licence for a warehouse to carry on the process of pressing/baling of excisable goods. Although proprietor of Kisan Factory stated that the goods in question were actually meant for Messrs Paul Corporation Ltd., Karachi but these were received in their premises before their final despatch to the destination, as pressing/baling of the bundles was to be carried out in their premises.
Therefore, petitioner was charged with contravention of Rule 52-B for removing the non-duty paid goods covered by AR3 to a place other than that shown in the AR3 application. Petitioner submitted reply of the notice and controverted the allegations levelled in the show-cause notice on 8-11-1977.
The Deputy Collector after perusing the reply exonerated the petitioner vide order, dated 3-4-1979 and imposed a penalty on Messrs Paul Corporation, Karachi the warehouse licensee for payment of duty involved and penalty to the equal amount and Messrs Kisan Cotton Factory was fined Rs.2,000. The order of the Deputy Collector, dated 3-4-1979 was reopened by the Collector by exercising power under section 35-A of the Central Excises and Salt Act, 1944 and show-cause notice was sent to the petitioner on 3-6-1979 on the ground that the petitioner contravened provisions of Rule 8(2) of the Excise Duty on Production Capacity (Cotton Yarn) Rules, 1975. The petitioner submitted the reply of the show-cause notice. And controverted the allegations levelled in the show-cause notice. The Collector vide order, dated 20-2-1980 imposed penalty on the petitioner to the tune of twice the amount of duty involved, in addition to the fines already imposed on Messrs Paul Corporation and Kisan Cotton Factory. Petitioner being aggrieved filed appeal before the Central Board of Revenue, which was dismissed by the Member, C.B.R. On 2-2-1986.
Petitioner being aggrieved filed petition under section 36 of the Central Excises and Salt Act, 1944 before the Federal Government of Pakistan which was also dismissed vide order, dated 8-5-1986.
Hence the present writ petition.
2. Learned counsel for the petitioner submits that liability of the manufacturer is ceased the moment the goods are delivered to an owner of other warehouse under bond and on the basis of Form A.R.III as is envisaged by Rules 153 and 173(b)(8) of the Central Excise Rules, 1944. He further submits that official of the respondents issued certificate certifying that the yarn Hard Waste removed from the factory of the petitioner had been properly warehoused in the house of Messrs Paul Corporation. Therefore, action of the respondents is without lawful authority. He further submits that orders of the Tribunal below are result of misreading or non-reading of the record. He further submits that on the basis of the Annexures "A", "B" and "C" which are attached with the writ petition which reveal that the warehousing had been done at Karachi. The petitioner could in no manner be saddled with any liability particularly when the certification issued by the official of the respondents at Karachi about furnishing of proper warehousing of the goods at Karachi has in no manner been questioned and there is no action taken by the respondents till date against the official concerned for having issued a false certification. In support of his contention he relied upon Central Textile Mills v. Deputy Collector and others 1985 M LD 143.
3. Learned counsel for the respondents submits that the Tribunals below have given concurrent finding of fact against the petitioner after proper appreciation of evidence. Therefore, writ petition is not maintainable He further submits that this Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunals below in a Constitutional jurisdiction. He further urged that since the bags were neither warehoused at Karachi in original condition nor exported, therefore, the petitioner has been justifiably burdened with the liability under the relevant Rules of the Excise Duty on Production Capacity (Cotton Yarn) Rules, 1968 and the imposition of penalty cannot be questioned. The point raised by the learned counsel for the petitioner were not taken before the Tribunals below and petitioners are not allowed to raise fresh new pleas before this Court. He further submits that petitioner Messrs Paul Corporation and Kisan Cotton Factory committed mischief. Therefore, under the law they are responsible and this fact was duly considered by the Tribunals below and imposed the penalty to them The judgment cited by the learned counsel of the petitioner is distinguished on facts and law.
4. Learned counsel for the petitioner in rebuttal submits that matter has been adjudicated by the Deputy Collector and found the petitioner innocent and exonerated him. Therefore, respondents have no authority under the law to take action against the petitioner under section 35-A of Central Excises and Salt Act, 1944.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the stand taken by the petitioner before the Federal Government in his petition to resolve the controversy between the parties. Learned Secretary observed point for determination in para.8 in the following terms--
(i) Whe er or not the responsibility of the manufacturer ceased as soon the goods were cleared under bond on AR-3 and in terms of Rule 173-B(8) of the Central Excises and Salt Act, 1944?
(ii) Whether or not the reopening of the case under section 35-A of the Central Excises and Salt Act, 1944, and imposition of penalty on Messrs Kohinoor Textile Mills under Rule 8(2) of Excise Duty on Production Capacity (Cotton Yarn) Rules, 1975 was lawful?
The aforesaid point of determination clearly shows that the petitioner has not taken pleas which are taken before this Court. It is settled proposition of law that grounds which were not agitated before the Authorities below and petitioner cannot be allowed to raise new pleas before this Court as per principle laid down by the Division Bench of the Karachi High Court in Dost Muhammad Cotton Mills' case PLD 1976 Kar. 1078. The judgment cited by the learned counsel for the petitioner is distinguished on facts and law as the cited case was decided in favour of the petitioner on the basis of the concessional statement of the Assistant Collector which is reproduced hereunder for ready reference:-- .
"I have been directed to state that the Collector, Central Excise and Land Customs, Lahore, has held as under in regard of this case:-- 'Nothing on record shows that the re-warehousing and export certification documents originating at Karachi were referred to Collector, Karachi Central Excise for verification and informing him of the seizure of the bales at Lyallpur now Faisalabad. As regards liability of the petitioner's factory since the goods were cleared on the bond of warehouse-keeper, their responsibility ended after clearance under Chapter 7 of the Central Excise Rules. I have also been directed to state that in view of this finding of the Collector, this writ petition may be accepted'. "
Khuda Bakhsh's case 1974 SCM R 279, Muhammad Sharif's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1981 SC 522.
It is also settled principle of law that this Court has no jurisdiction to substitute its own decision in place of the finding of the Tribunal below as per principle laid down by the Division Bench of this Court in Mussaduq's case PLD. 1973 Lah. 600. The Tribunal below have given finding of fact against the petitioner that bags were not warehoused at Karachi with the connivance of the petitioner in original condition whereas the case of the petitioner that petitioner is not responsible for that mischief. It is the Paul Corporation who committed this mischief. This fact brings the case in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in a Constitutional jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Younis's case 1993 SCM R 618. Petitioner has alternative remedy for resolution of the disputed question of fact by filing civil suit under section 9 of the C. P. C. Before the competent Court. In this view of the matter writ petition is also not maintainable as per principle laid down by the Honourable Supreme Court in Muhammad Ismail's case PLD 1996 SC 246. In view of what has been discussed above, this writ petition is dismissed with no order as to F costs.