' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought the following reliefs:-- "(a) declare that description of goods mentioned in Column 2 of table of S.R.O. 187(1)/91, 1143(1)/90, 1229(1)/91 is illustrative and not exhaustive hence fully covers the products exported by petitioner;
(b) declare that orders impugned are patently against and not inconsonance with time honoured principles of fairness;
(c) direct respondent No,3 to allow rebate of Rs,1,01,591 against SR-2. No,05729, Rs,5,58,524 vide SR-2 03455, dated 10-7-1991 and Rs,4,49,578 against SR2 45022/91, dated 31-10-1991, (total Rs,1,109.693, as stated in para. (a) of facts hereinabove."
2. Briefly stated the facts giving rise to this petition are that the petitioner exported consignment of 100% polyester bleached and dyed table covers and claimed duty draw back. The claim was disallowed by respondent No,3. Being aggrieved with the rejection of claim, the petitioner filed appeal under section 193, which was also rejected. The revision under section 196 of the Customs Act, 1969 met the same fate. Being still dissatisfied, the petitioner filed Constitutional Petition No,D- 3223 of 1993 and C.P. D-1995 of 1994, in respect of the claims as above, under S.R.O. 187(1)/91, dated 10-3-1991. Both the petitions were allowed and the matter was referred back to the respondent No,3, for reexamination of the whole issue.
3. It is pertinent to note that the respondents allowed claim in respect of the cushion covers but rejected the claim in respect of table covers. The above petitions were admitted in the following terms:- "Contention is that the items specifically referred to in the notification only enlarge the scope of the Notification S.R.O. No,187(I)/1991, dated 10-3-1991 but the list given is not exhaustive. Further contention is that if bed wears, pillow covers and cushion covers can be included in the list of items mentioned in the notification, there is no reason why the table covers of the texture manufactured by the petitioner should be excluded."
' While deciding the earlier petitions it was noted by a Division Bench of this Court in the order, dated 26-10-1995, that in the notification visualizing duty draw back facility the woven or knitted fabrics of manmade yarn or woven or knitted readymade garments included socks, pullovers, gloves, vests, Loongis, handkerchiefs, bed wears, pillow covers, cushion covlrs.
4. The then D.A.-G. Took plea during the course of hearing of the earlier petitions that the table covers do not qualify either as fabric or garments, and therefore, export rebate was rightly declined. On behalf of petitioners it was contended inter alia that the word "including" in the S.R.O. Is merely illustrative and not exhaustive. It was held by the Division Bench of this Court that the table covers may not be construed to be included in concept of "fabric" but it should be deemed to be concluded in the category of garments. It was observed that the word "garment" is defined in the dictionary "any article of clothing", whereas "clothing" signifies "clothes, garments covering". It was further observed that in the notification an expanded use seems to have been identified as "handkerchiefs, bed wears, pillow covers and cushion covers" which were not stricto senso to be garments, yet they were included in the garments. The concept of garments is shown to have been enlarged' to include the above articles. It was further observed that it gives rise to the question as to why "table clothes" fitting similar connotations may not be equally covered. It was pointed out by the learned counsel for the petitioner that the Second Secretary to the Board of Revenue in his letter, dated 26-2-1991, directed the Collectorate to include cushion covers under the heading pillow covers. This implies that through a process of interpretation an item which ex facie may not be included was deemed to be included amongst "garments" and no amending notification was found requisite, signifying that the notifications were to be liberally construed.
5. The learned Judges further observed that in the cognate notification "table covers" manufactured from cotton have been allowed the facility of export rebate and held that it would not be sound logic to exclude a similar item manifestly produced from imported polyester, cotton, when similar item produced from cotton was found eligible to duty drawback. It was ultimately held as follows:-- "For all the aforesaid reason, we are constrained to conclude that the said notifications are calculated to expand and encourage exports and have to be liberally construed in the larger public interest, an aspect which does not seem to have merited consideration at the departmental level."
6. With the consent of learned Advocates the matter was referred back to the Deputy Collector (Exports) Customs with the direction to re-examine whole issue and apply the law in consonance with time-honored principles.
7. However, during the course of rehearing the respondent No,3, deemed it fit to refer the case to C.B.R. For a definite ruling. In the letter of reference to the C.B.R. It was stated that "until and unless the Board's Letter C.No,3(37)SS(CR)/91, dated 264-1995, is clarified in the light of the decision of the High Court of Sindh or specific ruling in the matter is issued by the Board, whether table covers made from man-made fabric is entitled for duty drawback under S.R.O. 187(1)/91, dated 10-3-1991, or otherwise". The Board informed respondent No,3, vide letter, dated 5-11-1996 that the petitioner vide their application, dated 24-10-1991 had approached the Board for inclusion of table covers, sofa mats and cushion covers of polyester in export rebate Notification S.R.O. 187(1)/91, dated 10-3- 1991. The request was considered in the Board and they were informed vide letter, dated 26-1-1993 that the products i,e, table covers, sofa mats, cushion covers exported by them were not covered under the S.R.01 187(1)/91, dated 10-3-1991. It was informed that the clarification issued vide Board's letter, dated 26-1-1993 was still valid. The Collectorate again requested the CBR to reconsider its view on the issue. The Board was requested that the issue may be reconsidered in the light of judgment of Sindh High Court in order to avoid further litigation and possible contempt proceedings on the part of the exporters. However, the CBR refused to consider its earlier ruling and expressed its inability to review it.
8. Thereafter, the respondent No,3, commenced the hearing. The Advocate of the appellant reiterated the contentions raised earlier with further plea that the High Court has already allowed the petition and, therefore; no option was left with the adjudicating authority but to order for the refund.
9. The respondent No,3, after hearing the Advocate for the appellant observed that the case was remanded by the High Court to the Deputy Collector (Exports) for passing appropriate orders after taking a liberal view in the matter. He further observed that the then Deputy Collector did not choose to take up the case for decision and instead, put the ball in the C.B.R.'s Court once again and asked the C.B.R. To give a. Decision. As a result the level of decision changed and the C.B.R., after taking into consideration all the circumstances of the case including the arguments raised before him and thereafter, categorically ruled that table covers are not covered under the Notification S.R.O. 187(1)/91, dated 10-3-1991 and customs duty draw back and refund of tales tax is not admissible. The respondent No,3, further observed in his order that this is a policy decision and is not only applicable to the table covers exported in the instant case but also to all exports of this item, past or future. He further held that "as a subordinate officer, it is binding on me to follow the instructions/rulings issued by the C.B.R. The instructions issued by the C.B.R. In this case are so conclusive and definitive in nature that there is no room left for further interpretation on the issue.
Under the circumstances, I conclude that customs duty drawback and refund of sales tax is not admissible in this case as table covers exported by Messrs Myzone Pak International are not covered under Notification S.R.O. 187(1)/91, dated 10-3-1991. The supplementary claim bearing I.D.
No,09415, dated 16-12-1991 is accordingly, ordered to be rejected as inadmissible.
10. Being aggrieved with the order in Original No,27 of 1997, dated 2-9-1997, the appellant preferred an appeal before Collector of Customs (Appeals) Appraisement and Export, the respondent No,3.
The appeal was dismissed vide order, dated 10-11-1997 for the simple reason that the C.B.R. Has already given a ruling against the appellant. The appellant then preferred revision before the Central Board of Revenue and the revision was dismissed by the Member, C.B.R./Additional Secretary to the Government of Pakistan, Ministry of Finance, vide order, dated 13-3-1998, again placing reliance on the instructions of C.B.R. Which were followed by the adjudicating officer/Collector of Customs (Appeals).
11. Being left with no other forum/remedy, the petitioners have filed this petition seeking the relief as reproduced in the earlier part of this judgment.
12. Heard Mr. Aziz Ahmed Shaikh, learned counsel for the petitioner and Mr. Raja M. Iqbal, learned counsel for the respondents. .
13. The first contention raised by Mr. Aziz Ahmed Shaikh, is that all the three respondents while sitting in quasi-judicial capacity have failed to exercise their jurisdiction vested in law and have fallen in serious error of law by ignoring the proviso to section 223 of the Customs Act, 1969. The learned counsel for the petitioner has submitted that notwithstanding the ruling given by the C.B.R., the respondents ought to have exercised their independent discretion of interpreting the relevant S.R.O. And should have adjudicated the issue in accordance with the principles of interpretation of statutes and ought to have followed the findings/ observations of the High Court contained in the judgment in C.P. Nos.D-3223 of 1993 and D-1995 of 1994.
14. On the other hand Mr. Raja M. Iqbal, has fully supported the impugned judgment.
15. First, we would like to examine the point if the respondent No,3followed the right course in referring the issue which was remanded to him by the High Court to re-examine the whole issue and apply the law in consonance with time-honoured principles, instead of giving the findings himself secondly; whether the C.B.R. Was empowered/authorized in law to give a ruling in respect of an issue which was under consideration before the respondent No,3 in quasi-judicial capacity and thirdly, whether the ruling given by the C.B.R. Was binding on the three respondents while acting in qausi-judicial capacity.
16. Before we embark on the findings, it would be appropriate to reproduce section 223 of the Customs Act, 1969, which reads as follows:--
223. Officers of Customs to follow Board's orders, etc.--- All officers of customs and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board: ' Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officers of customs in exercise of their quasi-judicial function.
17. A similar question came for consideration before the Honourable Supreme Court, in the case of Messrs Central Insurance Co. v. The Central Board of Revenue, Islamabad 1993 SCM R 1232. The Honourable Supreme Court considered the provisions contained in sections 3, 8 and other sections in the Income Tax Ordinance. Section 223 of the Customs Act, 1969 is analogous to the provisions contained in section 8 of the Income-tax Ordinance, 1979 and section 3 of the Income Tax Ordinance, 1979, is similar to the provisions contained in section 3 of the Customs Act, 1969. We have already reproduced section 223 of the Customs Act and it would be convenient to reproduce section 3 of the Customs Act and thereafter sections 3 and 8 of the Income Tax Ordinance, 1979, which read as follows:-- "Section 3. Customs Act.--- Appointment of Officers of Customs--- For the purpose of this Act, the Board may, by Notification in the official Gazette, appoint, in relation to any area specified in the Notification, any person to be-
(a) a Chief Collector of Customs;
(b) a Collector of Customs;
(c) a Collector of Customs (Appeals);
(d) an Additional Collector of Customs;
(e) a Deputy Collector of Customs;
(f) an Assistant Collector of Customs;
(g) an Officer of Customs with any other designation." Section 3, Income Tax Ordinance, 1979.
Income-tax Authorities.--- (1) There shall be the following classes of Income-tax Authorities for the purposes of this Ordinance, namely,:--
(a) Central Board of Revenue; [(aa) Regional Commissioners, Income Tax;]
(b) [Director-General of Investigation and Intelligence]
(bb) [Director-General of Training and Research;]
(bbb) Director-General of Tax Withholding;]
(c) Commissioner of Income-tax;
(d) Additional Commissioners of Income-tax, who may be either Appellate Additional Commissioner of Income-tax or Inspecting Additional Commissioners of Income-tax; [(dd) Income-tax Panels;]
(e) [Deputy Commissioners of Income-tax]; and
(f) Inspectors of Income-tax; [(1-A) Commissioners of Income-tax, [***] Assistant Commissioners of Income-tax, [, Income-tax Panels], [Deputy Commissioners of Income-tax] and Inspectors of Income-tax shall be subordinate to the Regional Commissioners of Income-tax within whose jurisdiction they perform their functions.]
(2) Inspecting Additional Commissioner, [Income-tax Panels,] [Deputy Commissioners of Income- tax] and Inspectors of Income-tax shall be subordinate to the Commissioners within whose jurisdiction they perform their functions.
(3) [Deputy Commissioner of Income-tax] and Inspectors of Income-tax shall be subordinate to the Inspecting Additional Commissioners within whose jurisdiction they perform their function.
(4) Inspectors of Income-tax shall be subordinate to the [Deputy Commissioner of Income-tax] within whose jurisdiction they perform their functions."
Section 8, Income Tax Ordinance, 1979.
All officers to follow the orders of the Central Board of Revenue.--- All Officers and persons, employed in the execution of this Ordinance, shall observe and follow the orders, instructions and directions of the Central Board of Revenue; ' Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the Appellate Additional Commissioner in the exercise of his appellate functions or any valuer in the exercise of his functions under this Ordinance."
18. A comparison of the above sections shows that the provisions contained in the Income Tax Ordinance, 1979 and the Customs Act, 1969, are similar. The Honourable Supreme Court, after referring to the various provisions contained in the Income Tax Ordinance held as follows:-- "It may further be stated that section 8 lays down that all officers and persons employed in the execution of the Ordinance, shall observe and follow the orders, instructions and directions of the Central Board of Revenue. However, the proviso to the above section provides that no such orders, instructions or directions shall be given so as to interfere with the discretion of the Appellate Assistant Commissioner in the exercise of his appellate functions or any valuer in the exercise of his functions under the Ordinance."
19. The Honourable Supreme Court, further held in para. 22 of the cited judgment as follows:- "22. It is evident from the above provisions that though the Central Board of Revenue has administrative control over the functionaries discharging their functions under the Ordinance, but it does not figure in the hierarchy of the forums provided for adjudication of assessee's liability as to the tax. In this view of the matter, any interpretation placed by the Central Board of Revenue, on a statutory provision cannot be treated as a pronouncement by a forum competent to adjudicate upon such a question judicially or quasi-judicially. We may point out that the Central Board of Revenue cannot issue any administrative direction of the nature which may interfere with the judicial or quasi-judicial functions entrusted to the various functionaries under a statute. The instructions and directions of the Central Board of Revenue are binding on the functionaries discharging their functions under the Ordinance in view of section 8 so long as they are confined to the administrative matters. The interpretation of any provision of the Ordinance can be rendered judicially by the hierarchy of the forums provided for under the above provisions of the Ordinance, namely, the Income-tax Officer, Appellate Assistant Commissioner, Appellate Tribunal, the High Court and this Court and not by the Central Board of Revenue. In this view of the matter, the interpretation placed by the Central Board of Revenue on the relevant provisions of the Ordinance in the Circular, can be treated as administrative interpretation and not judicial interpretation."
20. In view of the specific findings of the Honourable Supreme Court that the Central Board of Revenue cannot issue any administrative directions of the nature which may interfere with the judicial or quasi-judicial functions entrusted to the various functionaries under the statute and the instructions and directions of the Central Board of Revenue are binding on the functionaries discharging their functions so long, as they are confined to administrative matters, we find no difficulty in holding that the respondent No,3, acted improperly while exercising quasi-judicial functions, in making reference to the C.B.R. For its ruling and the C.B.R. Cited in excess of jurisdiction by giving the ruling on a point which was subject-matter of a quasi-judicial proceedings before the respondent No,3. We further hold that the respondent No,3, incorrectly entertained view that "as a subordinate officer, it is binding on me to follow the instructions/rulings issued by the C.B.R. The instructions issued by the C.B.R. In this case are so conclusive and definitive in nature that there is no room left for further interpretation on the issue".
21. The reference made by respondent No,3, while' engaged in adjudication proceedings in compliance of the directions of this Court, ruling given by the C.B.R. And acceptance thereof by the respondent B No,3, as of binding nature were all violative of the provisions contained in the proviso to section 223 of the Customs Act, 1969. The ruling given by the C.B.R. Is violative of the above statutory provisions and the respondents by abdicating themselves of the jurisdiction vested in them and deciding the issue taking the ruling of C.B.R. As of binding nature have acted in flagrant violation of the provisions of law and all canons of the principles of administration of justice. It is established principle of the administration of justice, which is extended to the administrative decisions as well, that if the law enjoins upon a particular functionary/ authority to 'exercise a particular jurisdiction, it should be exercised by C the said functionary/authority independently on application of its own mind. If any judicial/quasi-judicial or even administrative discretion is not exercised independently and on application of mind by the functionary/authority who is enjoined under the law to exercise the discretion and the proceeding is controlled or decision is dictated it would amount to non-exercise of jurisdiction by the authority/functionary vested with the jurisdiction and wrong exercise of jurisdiction by an authority not vested with the jurisdiction. All such proceedings shall always be deemed to be invalid, nullity in law and of no legal effect. There is another salutary principle of law that the things should be done as they are required to be done or not at all. If under a scheme of statute something is required to be considered and decided on judicial/quasijudicial proceedings then the matter should be decided accordingly, without any interference from any higher or superior authority or under any administrative instruction.
22. In the present case, we find that initially respondent No,3 and thereafter, respondent No,2 and respondent No,1, in their appellate and revisional jurisdiction, have acted in total disregard of the directions contained in the judgment of this Court, dated 26-10-1995 in C.P. No,D-3223 of 1993 and C.P. D-1995 of 1994, whereby the matter was referred back to the Deputy Collector (Exports)
Customs, to re-examine the whole issue and apply the law in consonance with time-honoured principles. However, the respondent No,3, instead of examining the issue himself adopted a course not warranted in law and thereafter an D absolutely unwarranted and illegal course was adopted which has resulted in miscarriage of justice.
23. After coming to the above conclusion that the respondents have acted in flagrant violation of law and principles of administration of justice, we could have remanded back the matter to respondent No,3, for fresh and independent finding in compliance of the directions in the judgment, dated 26-10-1995 "in C.P. No,D-3223 of 1993 and C.P. D-1995 of 1994. However, in peculiar circumstances of this case, we did not deem it fit to remand the case to respondent No,3, for fresh decision. The reasons for not doing so are that the matter was lingering on since 1991 and full one decade has already passed without any final decision in the matter. Further remand of the case to respondent No,3, was, therefore, not found warranted because of the principle that the justice delayed is justice denied. Secondly, the issue in consideration pertaining to the interpretation of the relevant entry in S.R.O. 187(1)/91, dated 10-3-1991 was already considered by a Division Bench of this Court in the earlier petition and the matter was remanded without specific direction for allowing the rebate/refund for the reason that the executive authorities should be left to exercise their discretion/jurisdiction in the light of law laid down by the superior Courts. However, the respondents have failed to exercise their jurisdiction in consonance with the law, therefore, now the dictate of justice requires that this Court should finally decide the issue itself and issue a writ to the respondents to act in accordance with law.
24. The relevant passages from the earlier decision of this Court in the judgment, dated 26-10-1995 have already been reproduced in the earlier part of this judgment and we need not to repeat the same. The view taken by this Court was very clear to the respondent No,3 which is evident from the perusal of the order in Original No,27 of 1997, dated 2-9-1997. A perusal of this order shows that due to lack of confidence and ignorance of the correct position of law, the respondent No,3, found himself in a fix. On one hand there was an administrative ruling of the C.B.R. Contained in its Letter C.No,3(37)SS(CR)/91, dated 26-1-1995, whereby it was held that the export of table covers did not enjoy facility of duty drawback and on the other hand there was finding of the High Court of Sindh, to the effect that the items shown in the relevant entry of S.R.O. 187(1)/91, dated 10-3-1991, was illustrative in nature and not exhaustive, because the expression "including" used was indicative of extended meanings. The respondent No,3, therefore, observed that, "this Collectorate cannot proceed in the matter until Board's Letter C.No,3(37)SS(CR)/91, dated 26-1-1995 is clarified in the light of the decision of the Honourable High Court of Sindh or a specific ruling in the matter is issued by the Board whether table covers made from manmade fabric was entitled for duty drawback in S.R.O. 187(I)/91, dated 26-1-1995 or otherwise". After receiving the ruling of C.B.R., contrary to the view held by the High Court, the respondent No,3, made another attempt to satisfy the C.B.R. And requested to reconsider its view. It was requested that "Board may like to reconsider the case in the light of the judgment of the Sindh High Court, specifically with reference to the paras. Quoted above to avoid further litigation and possible contempt proceedings on the part of the exporters".
The respondent No,3, failed to persuade the C.B.R. To reconsider its view and thereafter, the succeeding Officer rejected the claim in utter helplessness without exercising his independent discretion and as is apparent from his order against his own views. It is evident from his observation that, "however, the then Deputy Collector did not choose to take up the case for decision; instead, he put the ball in C.B.R.'s Court once again and asked the C.B.R. To give a decision. As a result the level of decision changed and the C.B.R. After taking into consideration all the circumstances of the case including the arguments itemized at para. 3 above categorically ruled, vide letters, dated 5-11-1996 and 18-1-1997, that table covers are not covered under Notification S.R.O. 187(1)/91, dated 10-3-1991 and customs duty rawback/refund of sales tax is not admissible to Messrs Myzone Pak International. This policy decision is not only applicable to the table. Covers exported in the instant case but also to all exports of this item, past or future. As a subordinate officer, it is binding on me to follow the instructions/rulings issued by the C.B.R. The instructions issued by the C.B.R. In this case are so conclusive and definitive in nature that there is no room left for further interpretation on the issue".
25. We have already held that the entire course adopted was not warranted in law. From the tenor of the language, order in original, we have no manner of doubt in our mind that the respondent No,3, was absolutely clear about the judgment of this Court and had all intentions to allow the duty drawback/refund but under the wrong notion of the binding nature of administrative instructions of C.B.R. Even in quasi-judicial proceedings acted against his own views and conscience. Thus, we are of the considered opinion that but for the administrative instructions of the C.B.R., the respondent No,3, had all the intentions to decide issue in favour of petitioner. Likewise the respondent No,2, as well as respondent No,1, succumbed to the ruling of C.B.R.
26. We find sufficient force in the contention of Mr. Aziz A. Shaikh, learned counsel for the petitioner that the issue already stands decided by the earlier judgment of this Court in the petition at the instance of petitioner and nothing is left to be decided afresh. Mr. Raja M. Iqbal, learned counsel for the respondent has though vehemently opposed the grant of relief to the petitioner but is not able to rebut the contention of the learned counsel for the petitioner that the issue already stands decided by the earlier judgment of this Court, that the articles listed in Column Nos.2 and 3 of S.R.O.
187(1)/91, dated 10-3-1991 are merely illustrative and the expression "including" is indicative of the extended meaning, intended by the Legislature and thereby the table covers are included in the ready made garments on which duty drawback is allowed.
27. In support of the earlier D.B. Decision of this Court, we would only like to add that it is admitted principle of the interpretation of statutes that whenever a definition is given using the expression "means", it is exhaustive and wherever, the expression used is "included" or "including", or "means and includes", the definition is not exhaustive but it is inclusive which is always supposed to extend the meanings/items/things/acts of similar nature and can be legitimately included in the definition, if the circumstances so warrant. In the earlier judgment of this Court, it has already been discussed that in the relevant notification, the handkerchief, bed wears, pillow covers and cushion covers are already included in the garments although stricto senso they may not be garments at all and the C.B.R. Itself by mere process of interpretation directed that, "cushion covers should be deemed to be covered under the heading pillow covers" and in the cognate notification table covers manufactured from cotton were allowed the facility of export rebate.
28. For the foregoing reasons, we are of the considered opinion that in the light of interpretation contained in the earlier judgment of this Court and the facts and circumstances elaborately discussed, the petitioner is entitled to the relief sought in the petition, and therefore, we hereby declare that the description of goods mentioned in Column No,2 of the table of S.R.O. 187(1)/91, dated 10-3-1991 and in the cognate notification is illustrative and not exhaustive and hence covers and table covers exported by the petitioner and that the respondents failed to exercise their jurisdiction in law. We further declare that the impugned orders passed in quasi-judicial capacity under the administrative instructions of the C.B.R. Are violative of proviso to section 223 of the Customs Act, 1969, and are, therefore, nullity in the eyes of law.
29. We further direct the respondent No,3, to allow the export rebate to the petitioner as admissible in law in the light of earlier decision of this Court and this judgment.
30. The petition is allowed as above with no order as to costs. The petition was allowed by a short order, dated 27-9-2001. These are the detailed reasons in support of the short o-der.