ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Const. Petition No.D-3785 of 2011

 

Date                            Order with signature of Judges

 

 

1.For orders on CMA No.17628/2011

2.For Katcha Peshi

 

29.04.2014

 

 

Mr. Furqan Ali, advocate for the petitioners

Mr. Amjad Javaid Hashmi, advocate for respondent No.3

Mr.Khalid Jawed Khan, advocate for respondents No.4 5.

Mr. Shaikh Liaquat Hussain, Standing Counsel

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          Through instant petition, the petitioners, who are the manufacturers of heavy commercial vehicles in Pakistan, have sought following relief(s).

I.             Direct the Respondents Nos.2 and 3 to reassess the customs duty payable by the Respondents Nos.4 and 5 on the basis of the actual customs value of goods imported by the Respondents Nos.4 and 5 from the Respondent No.6 and charge customs duty applicable in view thereof.

 

II.           Direct the Respondents Nos.2 and 3 to take action under the Customs Act, 1969 against the Respondents Nos.4 and 5 for under-invoicing heavy commercial vehicles imported from China.

 

III.          Restrain the Respondents Nos.2 and 3 from releasing the heavy commercial vehicles imported by the Respondents Nos.4 and 5 until proper customs duty is paid by the Respondents Nos.4 and 5.

 

          IV.     Any other relief that is just and fair in the circumstances of this case; and

 

          V.      Cost of the Petition.

 

2.       Notices were issued to the respondents, pursuant to which comments/objections have been filed by the respondents, wherein the allegations as contained in the instant petition have been denied, whereas the objection with regard to maintainability of the instant petition has also been raised.

3.       Learned counsel for the petitioners submits that the petitioners are manufacturers of heavy commercial vehicles and are contributing towards development and improvement of local industry in Pakistan, whereas, the respondents No.4 & 5 are making imports of heavy commercial vehicles/built-up units from respondent No.6 through under invoicing, which is not only causing loss of revenue to the exchequer but also destroying the local industry, and the petitioners are suffering financial losses in this regard. Per learned counsel, several representations/complaints have already been filed by the petitioners to the concerned Collectorate as well as before the Federal Board of Revenue, however, no response whatsoever has been received nor any action has been taken against the tax evaders. Per learned counsel, since the grievance of the petitioners is not being redressed by the forums provided under the law, therefore, the petitioners were constrained to file instant petition seeking directions of this Court to the Customs Authorities to perform their duties, prevent the loss of revenue and to take action against the respondent No.4 and 5 in accordance with law.

 

4.       Conversely, Mr. Khalid Jawed Khan, learned counsel for respondents No.4 & 5 submits that though the allegations as contained in the instant petition are false, frivolous and baseless, however, the respondents have never cleared any consignment through under invoicing nor the customs authorities have ever objected to such declared value, which is being duly assessed in accordance with law. Per learned counsel, the allegations are not only vague, generalized but also based on malafide, as the petitioners are admittedly the competitors of the respondents, whereas, the disputed facts raised through instant petition cannot be decided under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

 

5.       Mr. Amjad Javaid Hashmi, learned counsel for respondent No.3 has also raised similar objection with regard to the maintainability of instant petition. It has been contended by the learned counsel that the petitioners are neither aggrieved party in terms of Article 199 of the Constitution of Islamic Republic of Pakistan nor they have approached this Court with clean hands, whereas, an attempt has been made to restrain the free import of heavy commercial vehicles/built-up units which are otherwise importable in terms of Import Policy Order, whereas proper custom duty is being collected regularly in accordance with law by the customs authorities. Per learned counsel, no case of mis-declaration  or of under invoicing has been made by the respondent/department against the respondents No.4 and 5 as there is no evidence available in this regard. It is further contended that even otherwise instant petition involves disputed questions of fact which cannot be examined by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereas, the petitioners can agitate such grievance before the forum which may be available under the law.

 

6.       We have heard the learned counsel for the parties and perused the record. Without commenting on the correctness or otherwise of the allegations as contained in the instant petition, we are of the tentative view that in view of the seriously disputed questions of fact involved in the instant petition, it will not be appropriate for this Court to enter into such disputed facts while exercising its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, since the petitioners have already made complaints and filed representation before the customs authorities and the Federal Board of Revenue, which have not been decided so far, we would dispose of this petition with the directions to the petitioners to file proper representation before Custom Authority/Federal Board of Revenue alongwith copies of earlier representation and annexures within fifteen days from the receipt of the order of this Court, where-after the Custom Authority/Federal Board of Revenue shall decide the said representation strictly in accordance with law after providing complete opportunity of being heard to the petitioners and  the respondents No. 4 and 5 or other stakeholders, if any, preferably within a period of one month from the receipt of such representation by the petitioners.

          Petition stands disposed in the aforesaid terms alongwith listed application.

 

                                                                                  J U D G E

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