JUDGMENT
ABDUL RASOOL MEMON, J.---The applicant through this revision petition has assailed the order dated 01.11.2012 passed by the learned III-Additional District Judge, Karachi West in Civil Appeal No.07/2012, whereby he dismissed the appeal upholding the order dated 23.01.2012 passed by the learned III-Senior Civil Judge Karachi West in Suit No. NIL of 2012 titled M. Asim Arman v. Collectorate of Customs and others holding the suit not maintainable and did not entertain the same as per law.
2. Briefly, the facts giving rise to this revision petition are that the applicant filed a suit for declaration and permanent injunction against the respondents with assertions that he imported a data processing equipment namely "mini migra line extender 37 DV" vide IGM No.D-2134 dated 29.02.2004, Index No.1, vide LC No.2362-03 dated 22.12.2003 issued from Faisal Bank Limited but on post release security respondent declaring it as cable line extending equipment classified under PCT 8543.8900 demanded 5% custom duty, 15% sales tax total amounting to Rs.19,33,223/- including Income Tax which he clarified that the equipment in question was not liable to payment of such taxes but respondents were bent upon to recover the same and ultimately in the month of November 2011 they issued a letter dated 15.11.2011 along with copy of order dated 22.5.2004 directing him to make payment of demanded tax duties and issued Warrant of Attachment dated 23.12.2011 for recovery of sum of Rs.19,33,223/- on account of the custom duty, sales tax and income tax thereafter, the applicant brought the instant suit for grant of following prayers:-
(i) To declare that the warrant of attachment dated 23.12.2011 sent by the Defendants is void, ab initio and without lawful authority and against the provision of S.R.O. 45 Schedule VI of Customs Act, 1990 as equipment classified under heading 8534.0000 in the category of "special classification provisions" attracting 0% Customs duty.
(ii) To declare that the warrant of attachment dated 23.12.2011 sent by the Defendants against the plaintiff is barred by time as notice for such recovery was mandatory to be served within a period of three years.
(iii) To restrain the above said Defendants, their men, associates, legal heirs, representatives, attorneys, nominees, successors- in-interest, assignees, any other person or persons working under them and acting on their behalf not to dispossess the plaintiff or not to issue/execute any warrant/proceedings against the plaintiff.
(iv) Cost of the suit.
3. Learned trial court before admission held the suit as not maintainable being barred under section 217 of Customs Act, 1969 which is special law having preference over the general law and an adequate remedy in shape of appeal under section 193 of the Customs Act was available to applicant. Appeal No.07/2012 filed against said order also met the same fate.
4. Arguments heard and record perused.
5. Learned counsel for the applicant contended that applicant has challenged the orders of the Custom Authorities based on mala fides as special plea has been taken that the judgment was signed by said authorities on 22.5.2004 for a case instituted on 25.6.2004 shown to be heard on 16.7.2004 and finally decided on 16.7.2004, copied on 23.11.2004 declaring the equipment in question classified under heading 8543.8900 liable for payment of custom duty and sales tax contrary to law and that under section 32(2) of the Customs Act a show cause notice was required to be served upon the applicant wherein a period of three years for recovery of alleged duties is required but he served with time barred notice, as such the suit filed by applicant is competent and has erroneously been rejected. In support of his contention he placed reliance on the cases reported as 1999 MLD 1728, PLD 1997 Karachi 541, 2004 PTD 1189, 1992 SCMR 1898, 2002 MLD 130, 1990 CLC 511, 2007 PTD 127 and 2011 SCMR 1279.
6. Learned counsel for respondents in rebuttal has argued that the present suit was not maintainable on account of bar contained in Section 217(2) of the Customs Act. She further contended that the Customs Act is a complete Code, as plaint was rightly rejected by the learned III-Senior Civil Judge Karachi West and said may be termed as an order passed under Order VII, Rule 11, C.P.C. which itself is a decree. She has further submitted that Show cause notice issued on 25.6.2014 in terms of Section 32(3) of the Customs Act, 1969 and Section 36(2) of Sales Tax Act, 1990 read with Section 148 of the Income Tax Ordinance, 2001 to Applicant for recovery of short levied customs duty/taxes was well within the limitation framed under Section 32(5) of the Customs Act, 1969 therefore the order of the authority concerned is in accordance with law and cannot be questioned in Civil Court. She has placed reliance on the cases of (1) Muhammad Idris v. The Collector of Customs, Karachi and another (PLD 1971 Karachi 911) and (2) Moon Corporation v. Central Board of Revenue (2004 PTD 2615).
7. The object of Customs Act, 1969 is complete Code in respect of Levy and collection of Customs duties and other allied matter. The rights of the parties are fully protected by the law in letter and spirit, reliance is placed on the case of Muhammad Idris (supra). Section 193 of the Customs Act provides that any person feels aggrieved by the decision or order passed under Sections 33, 79, 80 and 179 of the Act, 1969 can prefer an appeal to the Collector within thirty days from date of communication to him of such decision or order, it also contained provision of condonaton of delay in filing of appeal after prescribed period of limitation. Where the law provides a remedy of appeal or revision to any Tribunal fully competent to give relief, any indulgence to the contrary by the High Court, is bound to produce a sense of distrust in statutory Tribunals. Reliance is placed on case of Shahid Agency v. The Collector of Customs reported in 1989 CLC 1938.
8. It is the case of the applicant that the notice was issued to him after lapse of seven years for recovery of tax and finally on 23.12.2011 warrant of attachment was issued against him. In the case reported as Moon Corporation v. Central Board of Revenue reported as 2004 PTD 2615 relied upon by the counsel for the respondents, it is held as under:--
"In any event, even if the order suffers from any illegalities the petitioners could always seek appellate and revision remedies in the hierarchy in the Tribunal established under the Customs Act. We are, therefore, not inclined to interfere with the impugned order and dismiss the petition in limine. The observations made above, however, are only tentative and will not prejudice the petitioner in case he chooses to approach any appropriate forum for redress. The petitioner will also be free to approach the concerned authorities and seek extension of time for compliance of the impugned order, if he so desires."
9. The ratio of the above cited case is that when an action or order passed by Customs suffers from any illegality, an aggrieved party can seek remedy from the hierarchy provided under the Customs Act.
10. The case laws relied upon by the learned counsel for the applicant have no relevance with the facts and circumstances of this case on the contrary ratio of all the aforesaid referred judgments is that the assumption of jurisdiction adjudicates the dispute relating to customs duties would come within the domain of highest hierarchy/tribunal established in the said Act for adjudication of the controversies in respect of the levies of taxes. Apart from above, in the aforesaid case law it has been held that there was bar contained under section 217 of Customs Act in respect of suits filed by the importers and same were held incompetent.
11. In view of above circumstances, the order of the learned III-Senior Civil Judge Karachi West is in accordance with law and that order could be termed as an order passed under Order VII, Rule 11, C.P.C. as incompetent suit should be buried before its inception. Moreover, the order under Order VII, Rule 11, C.P.C. is itself a decree within the meaning of Section 2 of the CPC, as such no formal decree was required to have been prepared by the trial court and the said order itself was appealable, therefore, the findings of the appellant Court in respect of non-availability of the decree are contrary to law. However, in respect of the bar of jurisdiction, the concurrent findings of the two Courts below do not require any interference and no illegality or irregularity has been pointed out by the learned counsel for the applicant. The discretion/ jurisdiction exercised by both the Courts are in accordance with law without any material illegality or irregularity, therefore, the very revision application is incompetent which stands dismissed accordingly.
SL/M-53/SindhPetition dismissed.
2016 P T D 163
[Sindh High Court]
Before Abdul Rasool Memon, J
MUHAMMAD ASIM ARMAN
Versus
COLLECTORATE OF CUSTOMS (PREVENTIVE) and 3 others
R.A. No.197 of 2012, decided on 07/05/2015.
(a) Customs Act (IV of 1969)---
----Ss.193 & 217---Civil Procedure Code (V of 1908), S.2 & O. VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 52---Suit for declaration and permanent injunction---Maintainability---Protection of action taken under Customs Act, 1969---Suit barred under Customs Act, 1969---Order passed under O.VII, R.11, C.P.C.---Nature and effect---Remedy available under special law---Scope---Concurrent findings---Rules for interference---Plaintiff filed suit for declaration and permanent injunction challenging validity of demand letter under which tax duties were imposed by defendants on equipment imported by plaintiff and warrant of attachment issued for non-payment of said duties---Contention raised by plaintiff was that the equipment imported by him was not subject to payment of any tax duties and that show-cause notice issued to plaintiff was time barred in terms of S. 32(2) of Customs Act, 1969---Defendant took plea that show cause notice was within time as provided under S. 32(5) of Customs Act, 1969---Trial Court dismissed the suit being barred under S. 217 of Customs Act, 1969 and due to availability of adequate remedy of appeal under S. 193 of the Act---Appellate court upheld judgment and decree of Trial Court---Validity---Customs Act, 1969 was complete Code in respect of levy and collection of customs duties and other allied matter and rights of parties were fully protected by said law---When an action or order passed by Customs suffered from illegalities, aggrieved party could always seek remedy in hierarchy provided under the said Act---Assumption of jurisdiction to adjudicate dispute relating to customs' duties would come within domain of highest hierarchy or Tribunal established under Customs Act, 1969---Under S. 217 of Customs Act, 1969 provided bar in respect of suits filed by importers and the same were incompetent---Section 193 of Customs Act, 1969 provided that any person who felt aggrieved by decision or order passed under Ss. 33, 79, 80 & 179 of the Act could prefer appeal to Collector within thirty days from date of communication of order, and it also contained provision as to condonation of delay in filing of appeal after prescribed period of limitation---Order passed by Trial Court was in accordance with law and the same could be termed as an order passed under O. VII, R. 11, CPC---Order passed under O. VII, R. 11, CPC was itself a decree within meaning of S. 2, CPC and the same was appealable without any formal decree prepared by Trial Court---Findings of appellate court in respect of non-availability of decree were contrary to law---Where law had provided a remedy of appeal or revision to any Tribunal fully competent to give relief, any indulgence to contrary by High Court, was bound to produce sense of distrust in statutory Tribunals---Concurrent findings of courts below did not require any interference---No illegality or irregularity could be pointed out in finding of court below---Revision petition was dismissed in circumstance.
(b) Customs Act (IV of 1969)---
----Preamble---Object of Customs Act, 1969 is complete Code in respect of levy and collection of customs duties and other allied matters and rights of parties are fully protected by said law.
(c) Customs Act (IV of 1969)---
----Ss. 33, 32, 79, 80, 179, 193 & 217----Section 193 of Customs Act, 1969 provides that any person who feels aggrieved by decision or order passed under Ss. 33, 79, 80 & 179 of the Act can prefer appeal to Collector within thirty days from date of communication of order, and it also contains provision of condonation of delay in filing of appeal after prescribed period of limitation.
(d) Civil Procedure Code (V of 1908)----
----O. VII, R. 11, & S.2----Rejection of plaint---"Decree"---Scope---Order of court to the effect that suit was incompetent could be termed as an order passed under O. VII, R. 11, CPC, as such suit should have been buried before its inception---Order passed under O. VII, R. 11, C.P.C. was itself a "decree" within meaning of S. 2, CPC the same was appealable without any formal decree prepared by Trial Court---Finding of appellate court in respect of non-availability of decree were contrary to law.
(e) Civil Procedure Code (V of 1908)----
----S. 115---Revision---Maintainability---Remedy available under special law---Scope---Where law provides a remedy of appeal or revision to any Tribunal fully competent to give relief, any indulgence to the contrary by High Court, is bound to produce sense of distrust in statutory Tribunals.
1999 MLD 1728; PLD 1997 Kar. 541; 2004 PTD 1189; 1992 SCMR 1898; 2002 MLD 130; 1990 CLC 511; 2007 PTD 127; 2011 SCMR 1279; Muhammad Idris v. The Collector of Customs, Karachi and another PLD 1971 Kar. 911; Moon Corporation v. Central Board of Revenue 2004 PTD 2615 and Shahid Agency v. The Collector of Customs 1989 CLC 1938 rel.
Syed Jehangeer Akhtar for Applicant.
Dikhurram Shaheen for Respondents.
Date of hearing: 12th March, 2015.
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