M. JAVED BUTTAR, J.~ This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the demand of respondents against the petitioner, of payment of regulatory duty and the resort to coercive measures for the payment of the same through blocking the clearance of petitioner's various consignments.
2. The relevant facts are that the petitioner, a limited company, established a textile mill at Sindh Industrial Estate, Kotri, Sindh for the manufacture of cotton year in 1971 and in the year 1995, decided to import two diesel generator units for modernization and expansion, It is also alleged that the import of the said generators was resolved in order to avail the benefits conferred by SRO 484(l)/92, dated 14.5.1992 which granted complete exemption from whole of customs duty and sales tax on the import of the plants and machinery for setting-up of new units or balancing modernization and expansion of existing units in the areas specified in the said SRO. Letter of Credit dated 12.6.1995 in favour of the supplier was opened by the petitioner through the Muslim Commercial Bank for the import of diesel generation power plant. The consignments thereunder arrived at Karachi on 19.3.1996 and the bill of entry was presented in March, 1996 claiming exemption from customs duty, including regulatory duty and sales tax. The functionaries of the respondents refused to grant the claimed exemption and also raised the demand of regulatory duty pursuant to SRO 1050(l)/95, dated 29.10.1995. This led to the institution of a Writ Petition No. 520 of 1996, by the petitioner, whereupon through an interim order dated 26.5.1996, the consignment of the petitioner was ordered to be released on furnishing of bank guarantee for the disputed amount of duties and taxes. The said writ petition was disposed of by the Rawalpindi Bench of this Court on 25.9.1996 for the reasons recorded in the judgment passed by Division Bench of this Court in Writ Petition No. 17231 of 1995 tilted M/s. Flying Board and Paper Products Vs. Central Board of Revenue, Government of Pakistan, Islamabad and three others, dated 28.8.1996, in terms mentioned therein, with no order as to costs. Through the said judgment, it was held that if on the day when the goods imported touched the territorial waters of Pakistan, the exemption granting notifications were holding the field, even if the said date be subsequent to 29.10.1995, the date when the regulatory duty pursuant to SRO 1050(l)/95 was imposed, then in that eventuality the regulatory duty could not be claimed from the importer as the same would amount to giving the benefit by one hand and taking away by another, It was also held that thus the benefit granted under exemption granting notifications could not be denied to the importers irrespective of the fact whether the exemption so granted was in toto or to a certain percentage, It was thus concluded that regulatory duty cannot be claimed in those cases where the exemption granting notifications were holding the field at the time of the import of the goods. As mentioned above, the petitioner's writ petition No. 520/96 was disposed of by a Single Bench of this Court on 25.9.1996 in terms of judgment dated 28.8.1996 passed by a Division Bench in Writ Petition No. 17231/95, discussed above. The respondent never preferred any appeal against the judgment passed in favour of the petitioner on 25.9.1996. It is the case of the petitioner that the judgment, to the extent of the petitioner, attained finality. The case of the respondents is that although the judgment passed by this Court in Writ Petition No. 520/1996 declaring/awarding benefits to the petitioner in terms of judgment dated 28.8.1996 passed in Writ Petition No. 17231/1995, was never challenged and appealed against, but many similar other judgments including judgment dated 28.8.1996 passed in Writ petition No. 17231/1995 were challenged by the respondents before the honourable Supreme Court and the civil appeals of the customs Authorities were allowed by the Supreme Court vide its judgment dated 12.1.1999, titled Collector of Customs and others Vs. Ravi Spinning Ltd. And others (1999 SCMR 412) and the Supreme Court took a different view, It has been held by the honourable Supreme Court in the said judgment that in respect of the goods which were exempted from payment of customs duty, either wholly or partially, through various SROs, the imposition of regulatory duty by the Government under Section 18(2) of the Customs Act IV of 1969 would remain effective and the same could be recovered from the importers if the notification imposing the regulatory duty had come into effect on the date of presentation of the bill of entry or ex-bonding of the consignment from the bonded warehouse. On the strength of the judgment delivered by the honourable Supreme Court in Collector of Customs and others v. Ravi Spinning Ltd. And others (supra), the case of the respondent customs authorities is that in spite of the exemption granting notification, the petitioners are liable to pay the regulatory duty and the respondents can adopt the coercive measures for the recovery of the same and can also insist for the encashment of the bank guarantee furnished by the petitioner for the release of the goods.
3. I have heard the learned counsel for the petitioner and respondents and have also seen the record.
4. It is contended by the learned counsel for the petitioner that through judgment dated 25.9.1996, passed by this Court in Writ Petition No. 520 of 1996, it was declared that the respondent are not entitled to charge/demand the regulatory duty from the petitioner and the said decision has become final as the respondents have never appealed against the same before the Supreme Court and the respondents cannot be permitted now to demand the said duty from the petitioner merely on the ground that the Hon'ble Supreme Court in a subsequent judgment between other parties has set aside the judgment of the High Court on the basis of which a benefit was awarded to the petitioner, It is argued that judgment in personam cannot be reopened in view of bar of res judicata and the judgment dated 25.9.1996 in Writ Petition No. 520/1996 has conclusively determined the rights between the parties and even under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 the respondents cannot be permitted to avail the benefit of the law laid down by the Supreme Court subsequently in another case. Reliance in this regard is placed on Pir Bakhsh and others v. Chairman, Allotment Committee and others (PLD 1987 S.C. 145) and Koh-i- Noor Sugar Mills Limited v. Pakistan (1989 SCMR 2044). It is submitted next that the objection was to territorial jurisdiction of Rawalpindi Bench of Lahore High Court, being agitated now by the respondents has no legal force, since the judgment dated 25.9.1999 in Writ Petition No. 520/1996, which conclusively determined the rights of the parties and which attained finality, was passed by Rawalpindi Bench of Lahore High Court and as the same was not challenged on any ground including the objection as to the territorial jurisdiction of Rawalpindi Bench, the respondent cannot be allowed to raise this objection now because the same would amount to directing the petitioner to approach Sindh High Court to seek implementation of judgment passed by Rawalpindi Bench of Lahore High Court. Reliance in this regard is also placed on Flying Kraft Paper Mills (Pvt) Ltd.
Charsadda v. Central Board of Revenue, Islamabad and 2 others (1997 SCMR 1874) wherein while dealing with a similar situation, the Hon'ble Supreme Court held that "since the respondents failed to raise objection as to the territorial jurisdiction of Rawalpindi Bench of the Lahore High Court which was the Court of first instance in this case, and there was no allegation that any prejudice was caused to the respondents by filing the petition before the High Court at Rawalpindi, we are not inclined to allow the respondents to raise the objection as to the territorial jurisdiction of Lahore High Court, Rawalpindi Bench for the first time before this Court." In the end, it is submitted that the bank guarantee furnished by the petitioner in pursuance of interim order dated 26.5.1996 passed by this Court in Writ Petition No. 520/1996 stood released because subsequently the writ petition was accepted and was finally disposed of and for this reason the bank guarantee so furnished was not kept alive and the same has expired and the insistence of the respondents for the encashment of bank guarantee amounts to compelling the petitioner to pay regulatory duty contrary to the final decision of the High Court.
5. Learned counsel for the respondents, on the other hand, while vehemently opposing this petition has submitted that the matter is not past and closed and respondent No. 3 has correctly issued notices for encashment of bank guarantee previously furnished by the petitioner and this Court lacks territorial jurisdiction to scrutinize such a notice and coercive measures being adopted by respondent No. 3/Collector of Customs, Karachi and the petitioner may be directed to approach the Sindh High Court for the redress of his grievance. Reliance is placed on Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), wherein the practice to file a writ petition either at Peshawar, or Lahore or Rawalpindi or Multan, etc. To challenge the order of assessm ent passed at Karachi by adding a ground impugning the notification under which levy is imposed ' has been depreciated by the Hon'ble Supreme Court. Further reliance in support of the argument has been placed on Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others (1998 SCMR 2389).
6. This Court vide its judgment dated 25.9.1996 passed in Writ Petition No. 520/1996 has declared that regulatory duty imposed through SRO 1050(l)/96, dated 29.10.1995 was not leviable and was not recoverable from the petitioner because the Notifications granting partial exemption or total exemption from the Customs Duty were in existence at the time when the goods were imported.
This is the ratio of the judgment dated 28.8.1996 passed by a Division Bench of this Court in Writ Petition No. 17231/1995, titled Messrs Flying Board and Paper Products v. Central Board of Revenue, Government of Pakistan, etc. (PLD 1996 Lahore 718) and Writ Petition No. 520/1996 was disposed of in terms of this judgment. The judgment became final and conclusive in between the parties as the respondents never challenged the same before the Hon'ble Supreme Court and they cannot be permitted to turn around now and say that matter is still alive because in another appeal, the Hon'ble Supreme Court has set aside the judgment passed in Writ Petition No. 17231/1995. Learned counsel for the petitioner has correctly placed his reliance on Pir Bakhsh and others v. The Chairman, Allotment Committee and others (supra) which is on all fours to the facts as well as the legal issues involved in the present petition and it has been held by the Hon'ble Supreme Court that the judgment in personam could not be reopened in view of bar of res judicata and the right of the parties having been determined assumed finality and took the colour of a "past and closed transaction" and the fact that Supreme Court in an appeal against the judgment of High Court set aside the same judgment in another writ petition would not re-open concluded rights of the parties under the decision of the High Court against which no appeal was filed, It was declared and clarified that judgment in appeal passed by the Supreme Court was operative as from the date it was announced and it did not have the effect of re-opening the rights of parties concluded finally under the High Court judgment. The apex Court further declared that the appellants who were respondents in writ petition could not avail the benefit of law laid down by the Supreme Court under Article 189 of Constitution of Islamic Republic of Pakistan, 1973 because the authority of law laid down by the Supreme Court under Article 189 is prospective and although the decision of High Court stood over-ruled on the same question of law but that would not affect rights of the parties already determined by High Court. The Hon'ble Supreme Court while explaining the principle of res judicata has also made an observation that what is made conclusive by Section 11, C.P.C, between the parties is decision of the Court and not its reasoning which is not necessarily the same thing as its decision. The above- mentioned makes it absolutely clear that once the rights of the parties have been finally and conclusively determined by the High Court, a party to the said proceedings cannot be permitted to re-open the concluded rights because of the law laid down by the Supreme Court subsequently in another appeal.
7. The respondents cannot be permitted to raise an objection as to the territorial jurisdiction of the Rawalpindi Bench of Lahore High Court because the petitioner is merely asking that the respondents should not be permitted to reopen the issues finally settled between the parties by judgment dated 25.9.1996 passed by Rawalpindi Bench of Lahore High Court in Writ Petition No. 520/1996. Any view to the contrary would amount to directing the petitioner to approach the Sindh High Court seeing implementation of a judgment passed by Rawalpindi Bench of Lahore High Court. Even otherwise there is nothing on the record to show that any prejudice was caused to the respondents by filing the petition before the Rawalpindi Bench of Lahore High Court as the judgment passed by Rawalpindi Bench attained finality and was not challenged any further before the Hon'ble Supreme Court on any ground including that of lack of territorial jurisdiction of Lahore High Court, Rawalpindi Bench.
8. In view of the above-mentioned, the writ petition is allowed with costs and it is declared that demand and insistence of respondents against the petitioner for the payment of regulatory duty under SRO 1050(l)/95, dated 29.10.1995 on the import of within mentioned goods is illegal and without jurisdiction and the respondents are permanently restrained from adopting any coercive measures against the petitioner for the payment of the same.