Ms Craftsman Pvt Ltd Vs Collector of Customs etc

2020 P T D 2144

[Lahore High Court]

Before Jawad Hassan, J

Messrs CRAFTSMAN (PRIVATE) LIMITED

Versus

COLLECTOR OF CUSTOMS and others

Writ Petition No.24833 of 2020, decided on 8th June, 2020.

Customs Act (IV of 1969)---

----Ss.194-A & 195-B---Appeals to Appellate Tribunal---Deposit, pending appeal, of duty demanded or penalty levied---Stop gap measure---Scope---Petitioner filed constitutional petition before High Court contending therein that despite pendency of appeal before Customs Appellate Tribunal the department was adamant to take coercive measures against the petitioner---Validity---High court as a stop gap measure granted temporary relief to the petitioner by directing the Customs Appellate Tribunal to decide the appeal within a period of two months and held that till decision of appeal no coercive measures for recovery of disputed amount would be taken against the petitioner by the department---Constitutional petition was disposed of accordingly.

Messrs Pak Saudi Fertilizers Ltd. v. Federation of Pakistan and others 2002 PTD 679; Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax and others 2003 PTD 1746; Messrs Pearl Continental Hotel Lahore through Director Finance and another v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another 2005 PTD 1368; Sun-Rise Bottling Company (Pvt.) Limited v. Federation of Pakistan and 4 others 2006 PTD 535; Karachi Shipyard and Engineering Works Limited, Karachi v. Additional Collector, Customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others 2006 PTD 2207; Pak Suzuki Motors Co. Ltd through Senior General Manager (Corporate Planning and Logistics), Karachi v. Collector of Customs through Assistant Collector (Processing), Karachi 2006 PTD 2237 and Mari Petroleum Company Ltd. v. Appellate Tribunal Inland Revenue and others 2016 PTD 2406 ref.

Muhammad Akram Nizami for Petitioner.

Ms. Sadia Malik, Assistant Attorney General (on Court's call).

Qamar-uz-Zaman Cheema for Customs Department (on watching brief) for Respondent.

ORDER

JAWAD HASSAN, J.----Learned counsel for the Petitioner submits that after serving show-cause notice dated 06.09.2018, whereby he was required to pay certain amount on account of duty and taxes, an order-in-original dated 03.01.2019 was passed against him by Deputy Collector (Adjudication), Lahore. Being aggrieved of the said order, the Petitioner preferred an appeal which was dismissed by the Collector of Customs (Appeal), Customs House, Lahore vide order dated 08.05.2019 (the "impugned order"). Then, the Petitioner moved another appeal in terms of Section 194 of the Income Tax Act, 1969 (the "Act") along with stay application, which is pending before the Customs Appellate Tribunal, Lahore, Respondent No.3, unattended but now the Respondents concerned are adamant to take coercive measures against the Petitioner under the garb of the impugned order by initiating recovery proceedings, due to which his fundamental rights of trade and business guaranteed under Article 18 of that Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") will be impinged. He maintains that under the Doctrine of Ripeness, the matter before Custom Authorities has not been ripened because entire machinery and procedure is provided for adjudication of disputes before the appellate forum and the Petitioner can only approach this Court in Custom Reference under Section 196 of the Act. Learned counsel next argues that it is settled law that unless the matter is decided by at least one independent forum outside the revenue hierarchy, the recovery of the disputed amount cannot be made. He has placed reliance on the judgments reported as Messrs Pak Saudi Fertilizers Ltd. v. Federation of Pakistan and others (2002 PTD 679), Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax and others (2003 PTD 1746), Messrs Pearl Continental Hotel Lahore through Director Finance and another v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another (2005 PTD 1368), Sun-Rise Bottling Company (Pvt.) Limited v. Federation of Pakistan and 4 others (2006 PTD 535), Karachi Shipyard and Engineering Works Limited, Karachi v. Additional Collector, Customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others (2006 PTD 2207), Pak Suzuki Motors Co. Ltd through Senior General Manager (Corporate Planning and Logistics), Karachi v. Collector of Customs through Assistant Collector (Processing), Karachi (2006 PTD 2237) and Mari Petroleum Company Ltd. v. Appellate Tribunal Inland Revenue and others (2016 PTD 2406) wherein direction was issued to the authorities to decide the appeal and temporary relief was granted as stopgap measures.

2.Furtherance to the Petitioner's case, his learned counsel submits that Article 4 of the Constitution clearly states that it is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to life, reputation or liberty of any person shall be taken except as per law and in the case in hand the relevant law is the Act. He la stly, submits that Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations therefore, during the pendency of matter, if any action is taken under the garb of impugned order, the Petitioner will suffer an irreparable loss and injury.

3.After hearing learned counsel for the parties and in view of the law laid down in aforesaid judgments, I am inclined to grant, as a stop gap measure, temporary relief to the Petitioner by directing the Respondent No. 3 to decide appeal of the Petitioner within a period of two months in accordance with law/Act from the receipt of certified copy of this order. However, till the decision of appeal, no coercive measures for recovery of disputed

amount shall be taken against the Petitioner by the Respondents.

Disposed of.

SA/C-32/L Order accordingly.