M/S Tameer Zone Vs Govt of Pakistan & othes

I

JADGMENT SHEET

PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-Q AZA), SWAT

(ludicial Department)

1)W.P. No. 654-MJ2020 M/S Tameer Steel Zone Versus Government of Pakistan, through Federal Secretary Finance & others

2)W.P. No. 655-MJ2020 M/S Aitmaad Steel Furnace & Re-Rolling Mills through Director Versus Government of Pakistan through Secretary Finance and Revenue and others 3) W.P. No. 1098-M/2020 IWS Yar Jan Enterprises Versus Government of Pakistan through Sectary Finance & Revenue & others.

4)W.P. No. ll39-NI.12020 M/S Build Trade (Pvt.) Ltd, through representative Versus Government of Pakistan through Sectary Finance & Revenue & others.

s) W.P. No. 1244-M12020 M/S Pak Premier Enterprises through General Manager Versus Federation of Pakistan through Secretary Commerce & others

6)W.P. No. 423-M12020 with cM No. 1534/2020 Al-Mubeen Oil Extraction & Ghee Industries through Manager Finance Versus Federation of Pakistan through Secretary Ministry of Commerce & others

1)W.P. No. 443-M12020 M/S lnternational Pipe Tube & Steel Re-Rolling Industry through Manager Versus

Nrw.b (D.8, Hor'ble Mr. Justice lshtirq Ibrthim Hon'ble Mr. Justice Wiqar Ahmid

Government of Pakistan through Sectary Finance & others.

8)W.P. No. 524-MJ2020 With CM No. 988/2020 I\4/S Prime Steel through Managing Partner Versus Government of Pakistan through Sectary Finance & Revenue & others.

e) W.P. No.793-M12020 M/S Khaleej Steel Industries Private Limited Versus Government of Pakistan through Sectary Finance & Revenue & others.

10)W.P. No.887-M/2020 IWS Prime Steel through Managing Partner Versus Government of Pakistan through Sectary Finance & Revenue & others.

11)W.P. No.948-M12020 IWS Shangla Steel & others through Saddam Hussain Versus Government of Pakistan through Sectary Finance & others.

t2) COC No.72-M12020 in W.P. No.948-

M/2020

NI/S Shangla Steel & others Versus Mrs. Rubina Ather, Chairperson NTC & another l3) W.P. No. 1028-M/2020

IWS Bacha Khel Enterprises through Saddam Hussain Versus Government of Pakistan through Federal Secretary Finance & Revenue & others.

t4) W.P. No. ll9l-M./2020 IWS Hadi Khan Silk Mils & another through attorney Versus Government of Pakistan through Federal Secretary Finance & Revenue & others.

N,w!b (D.BJ Hor'ble Mr. Jusrice hhli,q lbrahin Ho.'ble NIr. Justice WiqrAhmtd

J

C, TED

JUDGMENT

Date of hearing: 26,11.2020

Present;

IWS Isaac Ali Qazi and Ms. Nazish Muzaffar, Advocates for petitioners.

\zIlS Nawroz Khan, Deputy Attorney General, Raza-ud-Din Khan, A.A.G, Saifullah Khan and Ahmad Sheraz, Advocates for respondents.

WIOAR AHMAD. J.- Through this judgment, we intend to dispose of W.P. No. 654-IW2020, W.P. No. 655-M12020, W.P. No. 1098-W2020, W.P. No. ll39-W2020, W.P. No. 1244-M12020, W.P. No. 423-W2020, W.P. No. 443-W2020, W.P. No. 524-M/2020, , W.P. No. 793-M12020, W.P. No. 887-M/2020, W.P. No. 948-M12020, COC No. 72-M/2020, W.P. No. 1028-M/2020 and W.P.

No. 1191-1W2020. Petitioners in all these connected petitions are aggrieved of a number of final determinations for imposing of anti-dumping duties after finding the imports of Cold Rolled Coils/Sheets originating in or exported from the People's Republic of China and Ukraine as dumped, under the Anti- Dumping Duties Act 2015 (hereinafter referred to as "the Act') read with Anti-Dumping Duties Rules 2001. The resultant definitive anti-dumping duties Nrwab (D.B.) Hon'ble IIr. Justice Ishtiaq Ibrrhim Hon'ble Nlr. Jusli.e \\iqar Ahmxd

had been imposed for a period offive years at ad val value by respondent No. 2 i.e. National Tariff Commission. Details of the five final determinations impugned through the respective constitutional petitions may be briefly stated by reproducing a Para from one of the similar petitions in the case of "M/S Tameer Steel Zone", for ready reference;

"Thst this petition is caused because the petitioner is aggrieved, firstly by the unlawful imposition of the Detinitive Anti-Dumping Duties ut ad val value by Respondent-2 through the Notice of Final Determinstion A.D.C No. 3 5/201 S/NTC/CRC dated 19.01,2017 (the "Impugned Determination") on alleged dumped imports of "Cold Rolled Coils/Sheets" into Pakistan originating in and/or exported from the People's Republic of Cltina and Ukraine (the "Exporting Countries") under the Anti-D umping D uties Act,2 0 1 5 (the "Anti-D umping Act") read with the Anti-Dumping Dulies, 2001 (the "Rules") , secondly by the unlawful imposition of the Definitive Anti-Dumping Duties for a period of /ive years at ad val value by Respondent-2 through the Notice of Final Determinution A.D.C No. 37/2015 NTC/GC dated 08.02.2017 (the "Impugned Determination") on alleged dumped imports of "Gqlvanized Steel Coils/Sheets" into Pskistan originating in snd/or exporled from the People's Republic of China (the " Exporting Country ") under the Anti-Dumping Duties Act, 2015 (the "Anti-Dumping Act") read with the Anti-Dumping Duties Rules, 2001 (the "Rules") and thirdly the petitioner is also aggrieved of Notice of Finol Determination ADC No. 5 1/2017/NTC/CCCS cluted 3.06.2018 (the"Impugned Determination") whereby An ti-Dumping Duties on alleged dumped imports of "Color Coated Steel Coils/Sheets" into Pukistan originating in and/or exported from the People's Republic of China tnd Republic of South Africo" (the "Exporting Countries") under the aforesaid provision of law, this petition."

N!wab (D.B) Hon'ble Nlr. Juslice Ishtiaq Ibrthim Hot'ble Mr. Justice wiqar Ahmad

2 Learned counsel appearing on behalf of National Tariff Commission raised a preliminary objection that the petitioners had an alternate remedy available to them under section 70 of the Act and thus their constitutional petitions have not been maintainable before this Court. In response, learned counsel for petitioners submitted that a sub constitutional legislation could not oust constitutional jurisdiction of this Court. They have also stated that the remedy of appeal provided under section 70 of the Act had been time-bound and that by now their appeals had got time barred, therefore the alternate remedy may not prove efficacious and adequate for them. Mr. Isaac Ali Qazi one of the counsel for petitioners has also relied upon judgment of Hon'ble Supreme Court of Pakistan rendered in the case of "Khalid Mehmood v/s Collector of Custom. C ustom House La hore" reported as !-999 SCMB-|E[f- and contended that in said judgment Hon'ble Supreme Court had held that where the very order is found to be patently illegal, void or wanting in jurisdiction,, the fact that an altemate remedy had been available should not prevent the high Court from exercise of its constitutional jurisdiction. In rebuttal, the leamed counsel appearing on behalf of National Tariff Commission submitted that due to the peculiar facts Nawrb (D.8.) Hod'ble NIr. Justi.e Ishtiaq Ihrrhin IIon'ble Mr' Justi.e Wiq.r AhDr'l

and circumstances that most of the petitioners have been belonging to the newly merged areas of erstwhile FATA and PATA, National Tariff Commission would not raise any objection over appeals of the petitioners being time barred. He added that though he would be opposing their petitions on merits but would not raise the plea of limitation before the appellate tribunal.

3.We have heard arguments on the question of maintainability of the instant writ petitions before this Court and perused the record.

4.There is no dispute regarding the fact that an altemate remedy is now available to petitioners. We have been informed that the appellate tribunal stood fully constituted according to the composition provided in section 64 of the Act. The appellate tribunal is by now fully functional, having lawful authority to consider pleas of the petitioners and grant the appropriate relief, if the petitioners were found entitled thereto. The petitioners can therefore have recourse to the remedy provided by section 70 of the Act. A remedy of further appeal before High Court has also been provided under sub- section (13) of section 70 of the Act. Thus a robust and full-fledged mechanism for dispute resolution Naw,b (D.8.) HoD'ble Mr. Jusrice lshtiaq Ibrrh'm Hon'ble Mr. Justice wiqt. Ahmad

has been provided under the Act. In the case of "Commissioner of Income Tax, Companies-Il and another v/s Hamdard Dawakhana 4laqfi, Karachi" reported as PLD 1992 Supreme Court 847. lhe Hon'ble Supreme Court of Pakistan has held in this regard;

Before parting with lhe judgment we ma! observe that in cuses where an), pafiy rcsofis lo a slatutory remedy against an order he cafinot abandon or bypass it without any volid and reasonable cause and Jile Conslitution petition cltallenging re same order. Such pmctice, in csses where statute provides alternale and efJicncious remedy up lo High Court, cannol be approved or encouruged. In a recent judgment of this Courl in CA. No.79-K of 1991, one of us (Ajmal Mian, J.) in similar situation obsemed as follows:

"We may no$' teve to lhe question, whether the appellant was justified to file above Constitution petition against lhe order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference lo the High Courl According lo Mr. Rehan Ntqvi, a reference under lhe above provision would nol hre been adequale and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitution Petition. The tendency lo bypass tlte remedy provided under lhe relevanl stalute and to press into service Conslitutional jurisdiclion oJ the High Court has developed lately, which is to be discouraged. Howeve4 in certain cases invoking of Constitulional jarisdiction of the High Couft instead of availing of remetly provided for under the relevant slatute may be justified, for example wlrcn re impugned order/action is palp ly without iurisdiction and/or mala Jide. To force an aggrieved person in suclt t case to approach lhe forum provided under the relevant slalute ma! not be just and proper,"

Similarly in the case of "Collector o

Customs Lahore a nd others v/s Universi tv Gatewa v Tradins Corooration and another'l reported as 2-!A SCMR 37 the Hon'ble Apex Court has also observed;

"A bare perusal of the said order b'ould reveal thal setrch was conductetl in view of strong apprehension of removal of the suspected smuggted goods, Notices u der section 171 of the Cusloms Act, 1969, werc also semed upon the respondents. ln our view, att the legal formalilies were completed by the Cusloms. Authorities before searching lhe godown tntl registralion of case against the respondents, whiclr hardly teuranls interference by the High Court in its Conslilutional Nrwrb (D.B.) Hon'ble Nlr. Justice Ishti!q Ibrthrm Hor'ble lUr. Justice Wiqar Ahmad

jurisdiction because "Superior Courts should nol involve temselves into a lhorough probe or in-depth invesligation of disputed questions of fact which necessilale taking of evidence. In deptlt investigation can convenientl! and approprialely be done by lhe forums available in the hierarchy -- Constitutional jurisdiction is primarily meant to provide expeditious and effrcacious remedy in a case where illegality, impropriety and flagrant violution of law regtrding action of the aulhority is apparent and can be established without any comprehensive inqub! inlo complicated, ticklish, controversial and disputed facts -- controversial questions cannot be decided by High Coutt in exercise of powers as confeted upon it under Art,l99 of the Constitution."

Further ahead in the said judgment it

was also observed;

"It ha lly needs any elaboration tltat "where a parliculot slttlute provides a self-containetl machinery for tlte determinalion of questions uising under tlre slalule where hw provides a remedy by appeal or revision to snothq Tribunal fully competent to give any relieJ any indulgence to the contrary by the High Court is bound to produce a sense of distrust in-stalutory Tribunals Petitioner withoul exhausting his remedy provided by the statule Jiled Constitutional pelition Constitutional petition, in circumstances, was not maintainable,"

Resolution of dispute in the cases in

hand also requires a thorough probe and in-depth investigations of disputed questions of fact, as the impugned orders had been passed after investigations under Paft-VIII of the Act wherein it had been found that the subject goods had been dumped by the countries of their origins. The appellate tribunal established in the case would be in a better position to call for record of the investigations and see whether same had been carried out according to law and whether the Investigating Authorities had reached a corect conclusion on the basis of evidence before it or not. Further reliance in this respect may also be placed on judgments of Hon'ble Supreme Nawrb (D.8.) Hon'ble NIr. Justice lshtilq Ibr.hiE Hotr'ble NIr. Jusfice Wiqat Ahntd

Court of Pakistan in the case of "Jawed Malik v/s The State" reported as 2.WB_!,2. and the case of "Chief Administrator of Auqsf v/s Muhammad Ramzan and others" reported PLD 1991 Supreme Court 102.

5.Regarding reliance of learned counsel

for petitioners on judgment of Hon'ble Apex Court in the case of "Khalid Mehmood v/s Collector of Custom, Custom House Lahore" reported as !22,2.

SCMR 1881, it is not disputed that existence of an alternate remedy do not totally oust jurisdiction of the High Court in a case where the impugned order is patently illegal, void or wanting in jurisdiction and further recourse to an altemate remedy is found counterproductive, inadequate or inefficacious, the high Court may itself intervene in the matter and nip the evil in the bud, but it has parallely been explained in said judgment that adequacy of an alternate remedy should always attract the attention of the High Court. Further ahead it had also been observed by august Supreme Court in said judgment;

There ure otlrer matlers, however, where lhe Constilulional jurisdiction ander Article 199 cannot be so readily resorted to' One such,fatling in this category, would be malters amenable to the jurisdiction of an exclusive Tribunal, mantlated by the Constilution itself. Anothe4 which readily comes lo the mind, would be disputes under a statule, poslulating the appellate or revisional jurisdiction lo reside eitlrer in the High Courl itself or N"w.b (D.B.) HoD'ble Mr. Justice Ishlirq Ibrahim HoD'ble Mi Justice Wiqtr Ahm&d

directly in the Supreme Court. An example, essenliall! relevant to the Ji6l, would be the Service Tribunal where the Tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereof and where an appeal lies directly from the Tribunal,s decision to the Supreme Coarl. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a Tribunal even in matters where the High Court's jurixliction cannol be taken away e.g. acts which I aru void, without jurisdiclion or coram non judice. In such cases of ousle\ the High Court woultl consider it a better-exercise of its tliscretion not to intetfere, More or less a similar principle applies where an exclusive Tribunal or a rcgukrr Court hus jurisdiction in a matter bat the legislalion, creating such Court ot fotum or confening jurisdiction on the same, also ends up by providing ppellate or revisional jurisdiction to the High Coutt itseU.

In the cases in hand also not only the

remedy of appeal before the appellate tribunal has been provided under sub-section (1) of section 70 of the Act but a further appeal before High Court also lies under sub-section (13) of section 70 of the Act.

We have no reason to dub the said mechanism for resolution of altemate dispute as ineffective or inefficacious. Moreso, when leamed counsel for respondents has also undertaken before this Court on behalf of his client that objection to the instant petitions being time barred would not be raised before the appropriate tribunal.

6.In light of what has been discussed above, all these connected writ petitions are therefore converted into appeals and shall be deemed to have been filed before the appropriate tribunal under sub- section (1) of section 70 of the Act on the dates of filing of constitutional petitions before this Court. Office is directed to ffansmit record of all these N.;b (D.8.) Hon'ble Nrr. Jusiice Ishtirq Ibrahim HoD'ble ilr' Justice $iqtr Ahmad

petitions before the tribunal, in original and shall retain copy of the same for the purpose of record of this Court. Respective petitioners are directed to appear before the Worthy tribunal on 28.12.2020. The consignments already cleared on receipt of post-dated cheques or bank guarantees, without payment of anti- dumping duties at import stage, in pursuance to interim orders of this Court passed in the writ petitions, shall be subject to final determinations of the appellate tribunal in the respective converted appeals. Till then neither the post-dated cheques nor bank guarantees shall be enchased by the relevant authorities.

7, Since main writ petitions have been

disposed of, C.Ms Nos. 806-M, 948-M, 988-M, 1396- M, 1397-M and 1534-M of 2020 as well as COC No' 72-M of 2020 have therefore become infructuous and same are disposed of accordinglY.

ANNOUNCED

Dt: 26.1 1.2020

GE

JUDGE

Nrsrb (D.8.) Hon'ble Mr' Justice I *,'o\'{,,o llon'ble Mr. Justice \ryiqrr