Brief facts out of which the present writ petition arises are that petitioner imported 94 transit vans i.e. Toyota Hilux 4 x 2 pick-ups manufactured by Messrs Toyota Trusho Kaisha Ltd., Japan in the year 1986 via Karachi and Lahore Dry Port. The manufacturers/exporters sent three invoices relating to the aforesaid vehicles. Petitioner submitted bill of entries for clearance and assessment through agents. Respondent No.2 did not take the action in accordance with law. Petitioner being aggrieved filed appeal before the Collector, Custom and Excise for redressal of his grievance who remanded the case to the Assistant Collector and also directed the petitioner to lodge a petition before the Assistant Collector Customs Refund, Dry Port, Lahore under section 33 of Customs Act with regard to the refund of freight. Respondent No.2 instead of redressing the grievance of the petitioner sent show-cause notice/demand notice to the petitioner whereby it was demanded from the petitioner that F.O.V. Value of the vehicles imported by the petitioner should have been 8,79,000-J/Yen instead of 871,000-J/Yen. Petitioner submitted reply of the show-cause notice before respondent No.2 and also filed application under section 33 of the Customs Act for refund of freight.
Respondent No.2 passed two orders on 20-6-1988 and 26-6-1988 respectively. Petitioner's claim with regard to fixation of F.O.V. Was accepted whereas petitioner's refund of freight claim was refused. Petitioner being aggrieved, filed appeal before the Collector Appeals (Custom) and Excise, Lahore who dismissed the same on merits as well as time-barred by the impugned order, dated 16-8-1988.
1. Learned counsel for the petitioner submits that respondents have no authority to charge the custom duties and other charges from the petitioner in violation of notification, dated 18-10-1982.
The freights with regard to transit van has been prescribed at the fixed rate of Rs.9,000 per vehicle which remained in the field till 9th September, 1987. According to the new notification the freight has been fixed at the rate of 13,000 per vehicle. Learned counsel for the petitioner further submits that both the Tribunals below had decided the case against petitioner without perusing the record; that petitioner submitted bill of entry on 3-6-1987, the vehicles in question were cleared Ex-Bond on 10-6-1987. The matter between respondents was finally decided on 16-6-1987, therefore, action of respondent is not sustainable in the eyes of law; that action of respondents is in violation of Notification of respondents dated 18-10-1982 as the case of petitioner is fully covered vide Item No.7 of Notification, dated 18-10-1982 which contain transit van and amount is mentioned Rs.9,000, this fact was not considered by both the tribunals below. He further submits that Government of Pakistan C.B.R. Sent letter to the Collector of Custom, Lahore under heading assessment of cars which reveals that the matter has been considered in the Board and it was observed that Collectorate of Customs, Lahore should add actual freight being charges by shipping companies for assessm ent to Hiace Vans and (Hilux), pick-ups etc. Which will be in line with the spirit of notification, dated 18-10-1982 which is attached with the writ petition as Annexure "J". He also relied upon letter Annexure "J/1" attached with the writ petition which was also sent by the C.B.R. To the Collector of Customs, Lahore which reveals that all these vehicles are being assessed under the head transit Van at Lahore Customs and the Ocean freight being charged is only Rs.9,000 on the other hand Custom House, Karachi is adding actual freight charges by the shipping Companies pick-ups and Vans and such category of vehicles other than transit vans. The Collector of Custom, Lahore was directed to send his comments qua the aforesaid discrepancy, which results in lower yield of revenue at Colle3orate of Customs, Lahore. The Collector. Customs, Lahore sent comments vide letter, dated 16-6-1987 and finally C.B.R. Issued the notification under section 19 of the Customs Act on 9-9-1987 to exempt the vehicles specified in Column No.2 of the table below from the Custom Department chargeable on the freight in excess of the amount specified in Column No.3 of the table. The relevant Entry No.6 in the said notification at Serial No.6 which reveals amount Rs.13.000; that it is consistent practice of the Department till clearance of vehicles of the petitioner, therefore, action of respondents is without lawful authority; that matter was finally decided by the C B.R. Vide notification dated 9-9-1987, after clearance of vehicles in question, therefore, action of respondents is without lawful authority; that writ petition is maintainable in presence o' alternate remedy of revision. He relied upon the following judgments: -- Mst. Hussain Bibi's case 1976 SCMR 395, Messrs Kamran Interprises' case PLD 1996 Kar. 68; ALM (Pvt.)
Ltd.'s case 2000 CLC 1485: Mrs. Shreen G. Kandawala's case PLD 1989 Kar. 471andTripple EM,(Pvt.)'s case 1998 CLC 187.
He further submits that respondents filed written statement and raised the aforesaid objection in the year 2000 and writ petition was filed in 1989, therefore, objection of respondents should be ignored at this belated stage. He further submits that remedy of revision under the provisions of the Customs Act is not efficacious. Therefore, writ petition is maintainable in presence of alternative remedy. He further submits that respondents have taken action against the petitioner under the direction of Central Board of Revenue. Therefore, alternative remedy is not hindrance to entertain the writ petition. In support of his contention he relied upon Messrs Tripple EM (Pvt.) Ltd.'s case 1998 CLC 187. He further submits that fiscal provisions should be interpreted to the benefit of the subject citizen and benefit of any ambiguity should go to him. In support of his contention he' relied upon the following judgments:-- Collector of Customs, Custom House, Lahore 1999 SCMR 138, Gulistan Textile Mills' case 1983 CLC 1474, and K.M. Asif's case PLD 1976 Lah. 158.
He further submits that vested right has accrued to the petitioner by virtue of the notification, dated 18-10-1982. Therefore, respondents have no authority to take action against the petitioner on the basis of the notification issued by the respondents subsequently on 9-9-1987. In support of his contention he relied upon Messrs M. Bhai Electronic Industries' case 1998 SCMR 1404. He further submits that relevant .Entry/item must be construed reasonably. In support of his contention he relied upon the following judgments:-- Messrs South East Trader's case PTCL 1999 CL 742 and Collector of Custom's case PTCL 1999 CL 777.
He further submits that relief cannot be denied to the citizen on technicalities. It is the duty of the respondents to refund the amount in question to the petitioner. In support of his contention he relied upon PLD 1998 SC 87. It is pertinent to mention here that there is no judgment on this page. He further urged that action of the respondents is in violation of Article 77 and Article 25 of the Constitution. He further urged that it is consistent practice of the department but respondents had initiated proceedings against the petitioner in violation of consistent practice.
3. Mr. A. Karim Malik, Advocate for the respondents submits that vehicles in question is not mentioned in the notification of the respondents dated 18-10-1982. Therefore, action of the respondents is valid in the eyes of law. He further submits that notification cannot override section 25(2)(b) of the Customs Act. The action of the respondents is in accordance with section 25(2)(b) of the Customs Act, 1969. He further submits that petitioner claimed exemption. It is the duty and obligation of the petitioner to proof his entitlement on the basis of notification or rule of the respondents but the petitioner failed to bring on record any notification of the respondents on the basis of which the petitioner is entitled for exemption. He further urged that notifications and correspondence between the C.B.R. And the Collector does not debar the petitioner to avail remedy under section 195 before the Central Board of Revenue and before the Federal Government by virtue of section 195-A of the Customs Act. He further urged that Federal Government is not subordinate to the Central Board of Revenue He further submits that appeal of the petitioner was dismissed on merits as well as time--barred as is evident from last para. Of the impugned order of the Collector Appeals. He further submits that vehicles of the petitioners are not mentioned in any of the item mentioned in notification dated 18-10-1982. He further urged that it was not consistent and 'uniform practice of the department as is evident from correspondence between the Collector Customs, Lahore and C.B.R. Which are attached as Annexures "J/1", "J/Il" and Annexure "K" with the writ petition that practice of Collectorate Custom, Lahore and Collectorate Custom, Karachi are not uniform. Therefore, contention of the learned counsel for the petitioner that action of the respondent is in violation of the consistent practice of the department is not sustainable in the eyes of law. In support of his contention he relied upon Messrs Dada Soap Factory PLD 1984 Kar.
302. He further submits that instructions issued by Central Board of Revenue cannot be with a legislative instrument. He relied upon Messrs Army Welfare Sugar Mills' case 1992 SCMR 1652. He further submits that doctrine of promissory estoppel cannot be invoked against the Legislature. In support of his contention he relied upon Salah-ud-Din's case PLD 1991 SC 546. He further submits that petitioner cannot be allowed to frustrate provisions of law by dexterously having recourse to evasive tactics to avoid to pay duties under the provisions of Customs Act and Rules, notification issued by the competent authority. In support of his contention he relied upon Chenab Woollen and Textile Mills' case PLD 1968 Lah. 1116. He further submits that respondents have authority to take action against the petitioner under section 32 of the Customs Act, 1969.
4. Mr. Azha;-ul-Haque, Advocate for the respondents submits that petitioner filed appeal before the Collector which was dismissed. Thereafter, petitioner filed present writ petition without exhausting remedies available to the petitioner under the provisions of Customs Act, 1969. He further urged that once the petitioner had adopted a specific procedure to avail alternative remedy by filing appeal before the Collector Customs. Thereafter, the petitioner had to resort all the remedies as the petitioner did not file writ petition against the original order of the respondent No.2 in writ petition and had availed one right of appeal before filing this writ petition. He further submits that petitioner failed to point out that orders passed by the respondents is without lawful authority, coram non judice and mala fide: He summed up his arguments that in the present circumstances, the writ petition is not maintainable and is liable to be dismissed in view of alternative remedy available to the petitioner. In support of his contention he relied upon Alahram Builders' case 1993 SCMR 29.
5. Learned counsel for the petitioner in rebuttal submits that Appellate Tribunal dismissed the appeal without adverting to the facts of the case and provisions of law. The impugned order of Assistant Collector was received by the petitioner on 20-7-1988 and petitioner filed appeal well in time as is evident from the impugned order that the appeal was received in the Office of Collector Appeals on 16-8-1988. Petitioner had to file appeal within one month after receiving the order of the Assistant Collector as is evident from section 193 of the Customs Act, 1969. He further submits that writ petition was admitted for regular hearing in the year 1989 whereas the respondent filed written statement in the year 2000 and raised a preliminary objection that writ petition be dismissed in view of alternative remedy should be ignored as the respondents did not take the preliminary objection in their report and parawise comments. He further submits that word "Transit Van and pick-ups and Hiace Vans are interchangeable as defined in Webster's Dictionary.
6. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. Firstly, I would like to decide the preliminary objection whether writ petition in presence of alternative remedy is maintainable or not. It is better and appropriate to reproduce the relevant provisions of the Customs Act to resolve the controversy between the parties:-- "193. Appeals.--- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Collector of Customs (other than a notice of demand served under section 202) may appeal to the Collector (Appeals) within thirty days of the communication to him of such decision or order: Provided that an appeal filed after the expiry of thirty days tray be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not filing the appeal within that period.
194. Appellate Tribunal.--- (1) The Federal Government shall constitute Appellate Tribunal to be called the Customs, Excise and Sales Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.
195. Powers of Board of Collector of Customs to pass certain orders.----(1) The Board or the Collector of Customs tray, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself or, as the case may be, himself as to the legality- or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit.
195-A. Revision by the Federal Government.--- The Federal Government may, op the application of any person aggrieved by any order passed under section 193, where the order is of the nature referred to in the first proviso to subsection (1) of section 194-A annul or modify such order."
The aforesaid provisions reveal that Customs Act, is a special law which provides different remedies to the aggrieved persons up to the level of Federal Government. In the present case the petitioner has only availed one remedy of appeal before the Collector Appeals who forwarded the impugned C order to the petitioner which contain in title page vide Item No.9 that appellant had alternative remedy to file revision before the Federal Government within 30 days of the date of receipt of the order. The appellant .Did not avail any of the aforesaid remedies and filed this writ petition. Petitioner has filed this writ petition under Article 199 which imposes certain limitations for entertaining the writ petition. The relevant sub-Article (1) of Article 199 is reproduced hereunder.
"Subject to the condition the High may, if it is satisfied that no otter adequate remedy is provided by law". The aforesaid article reveals where it is open to an aggrieved person to move another forum or tribunal for his remedy in the manner prescribed in a statute, the High Court will not by entertaining petition under Article 199(1) permit the machinery provided in a statute to be bypassed. It is primarily a discretion of the Court to grant or refuse the relief if it is satisfied that an aggrieved party can, have an alternative remedy elsewhere coupled with the principle that relief under Article 199 is not to be provided where the alternative remedy exists is now well-founded unless there are any exceptional reasons warranting exercise of extraordinary powers under the aforesaid Article The exceptional circumstances which are settled by the I superior Courts where the impugned order suffers from:--
(i) Wholly without authority;
(ii) without jurisdiction of functionary;
(iii) functionary acted mala fide or unjust manner.
It is also settled principle of law that existence of an alternative remedy by way of appeal or revision is no bar if the case falls in the exceptional circumstances stated above. It is also settled principle of law that rule of alternative remedy is a rule of discretion. Learned counsel for the petitioner relied upon Mst. Hussain Bibi's case 1976 SCMR 395. This case is distinguished on facts and law because in this case the writ petition was entertained as the impugned order was passed without providing personal hearing to the aggrieved person whereas in the present case the order was passed after providing personal hearing to the petitioner. Learned counsel for petitioner further relied upon Ghazi Fabric International Ltd.'s case PLD 2000 Lah. 349. In this case the Division Bench entertained petition in which remedy of suit was not available in the statute to the petitioner and the same was not equally efficacious remedy and the order was passed against the petitioner without providing personal hearing. Therefore, this case has also distinguished features. Learned counsel for petitioner further relied upon Alam (Private) Ltd.'s case 2000 CLC 1485. In this case the writ petition was entertained only on the ground of question of law regarding to construction section 9 of the Punjab Finance Act, 1997 was involved whereas in the present case the petitioner has not challenged the vires of any law.
Collector of Customs, Customs House's case 1999 SCMR 138. In this case the writ petition was entertained as the Central Board of Revenue had already expressed its opinion It is pertinent to mention here that in the present case the petitioner has alternative remedy before the Federal Government under section 195-A of the Customs Act and Federal Government has not expressed any opinion in the present case. Tripple EM (Pvt.)'s case 1998 CLC 187. In this case the writ petition was entertained as the Custom Authority had admittedly passed no order in writing. Mrs. Shreen G.
Kandawala's case PLD 1989 Kar. 471. In this case the objection was overruled as the respondents failed to raise preliminary objection at the earliest opportunity. In the present case the title of the impugned order contained Item No.9 that the petitioner had to file revision petition before the federal Government within 30 days of the date of receipt of the impugned order as is evident from Annexure "I/1" page 57. Messrs Kamran Industries' case PLD 1996 Kar.
68. In this case the writ petition was entertained as the impugned action was completely without jurisdiction whereas in the present case petitioner filed appeal himself before the Collector Appeals who dismissed the same.
In this view of the matter order cannot be said to be without lawful authority. On the well-known principle mere erroneous exercise of jurisdiction does not render the order passed by the authority/Court of competent jurisdiction to be illegal and without lawful authority so as to be amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199 of the Constitution as per principle laid down by the Honourable Supreme Court and this Court in the following judgments:-- Sh. Gulzar A.I's case 1991 SCMR 590 and K.M. Asif's case PLD 1976 Lah. 158.
"When after considerable arguments we had already reached the above conclusion and had also announced it and the consequential dismissal of the appeals was yet to be announced, the learned counsel for the appellants brought to our notice that the respondent in this case approached the High Court in its writ jurisdiction without seeking and exhausting the statutory remedies. In several of the very recent judgments we have not approved in such situation the interference by the High Court in tax matters, when the normal course being adopted by almost all the High Courts in matters other than tax, rule of alternate remedy is being followed.
Shaukat Afzal's case 1993 SCMR 1810.
"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 bypass 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. "