C. P. NO. D-2073 / 2014
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
M/S Care Impex ------------------------------------------------------------ Petitioner
Versus
Government of Pakistan & 4 others ----------------------------------- Respondents
Date of hearing: 13.02.2015
Date of order: 13.02.2015
Petitioner: Through Mr. Ziaul Hassan Advocate.
Mr. Dilawar Hussain Standing Counsel on Court Notice
O R D E R
Muhammad Junaid Ghaffar, J. Through instant petition, the petitioner has impugned order dated 24.05.2013 passed by the President of Pakistan, whereby, the representation filed under section 32 of the Establishment of Federal Tax Ombudsman Ordinance, 2000, (“FTO Ordinance, 2000”) as well as order dated 18.08.2010, whereby, the complaint filed under section 3 of the FTO Ordinance, 2000, have been dismissed, respectively, as according to the Petitioner, the impugned order(s) have been passed in violation of the provisions of Section 81 of the Customs Act 1969 read with Customs General Order 12 of 2012.
2. Briefly, the facts as stated in the Memo of Petition are that the petitioner who is a commercial importer, imported a consignment of 98.82 Metric tons of non alloy iron wire rods from China @ US$ 410 per metric ton. The respondents rejected the value declared by the petitioner and the consignment was assessed provisionally, under Section 81 of the Customs Act, 1969 @ US$ 540 per metric ton, after securing the differential amount of duty and taxes from the petitioner. It is further stated that thereafter, the petitioner received a Demand Cum Show Cause Notice dated 20.3.2008, whereby, instead of finalization of the assessment under Section 81 of the Customs Act, 1969, the petitioner was asked to pay duty and taxes @ US$ 585.79 per metric ton on the basis of a letter dated 26.01.2008, issued by the Valuation Department. Subsequently, in the year 2010, the petitioner filed a complaint before the Federal Tax Ombudsman under Section 3 of the FTO Ordinance, 2000, which was dismissed as being time barred by the learned Federal Tax Ombudsman vide order dated 18.8.2010, against which a review application was preferred by the petitioner which was also dismissed vide order dated 01.08.2011. Thereafter, the petitioner preferred a representation under Section 32 of the FTO Ordinance, 2000, before the President of Pakistan and such representation has also been dismissed vide impugned order dated 24.5.2013 against which the petitioner has now preferred instant petition.
3. Mr. Ziaul Hassan learned Counsel for the petitioner has contended that the provisional assessment in the instant matter was not finalized within the statutory period as provided under Section 81 of the Customs Act, 1969, therefore, the orders passed by the learned Federal Tax Ombudsman as well as the President in the instant matter are against the settled principles of law, hence, instant petition merits consideration and may be allowed and the respondents be directed to refund / return the security deposit which was furnished by the petitioner at the time of provisional release of the consignment.
4. At the very outset, before notice could be ordered to be issued to the respondents, learned Counsel for the petitioner was confronted as to how instant petition is maintainable before this Court after concurrent findings of facts as recorded in the instant matter, by the departmental authorities as well as the Federal Tax Ombudsman and the President of Pakistan, specially, with regard to the fact that whether or not the provisional assessment was made within the stipulated time or not, the learned Counsel for the petitioner could not satisfactorily respond to the query of the Court in this regard. The learned Counsel for the petitioner was also confronted as to why the demand notice issued on 20.3.2008 was never challenged before the departmental authorities or forums provided under law until 5.4.2010, when, for the first time, a complaint was filed before the Federal Tax Ombudsman. The learned Counsel for the petitioner again could not satisfactorily respond to such query of the Court. We have noted that the petitioner had itself chosen to challenge / impugn the demand notice dated 20.3.2008 by invoking the jurisdiction of Federal Tax Ombudsman by filing a complaint in terms of the FTO Ordinance, 2000, on which the Federal Tax Ombudsman had observed that the complaint filed by the petitioner was time barred, as it was filed after more than two years of the issuance of demand notice dated 20.3.2008. It would be advantageous to refer to the relevant findings of the Federal Tax Ombudsman in his order dated 18.8.2010 which reads as follows:-
“Adverting to the legal objections about maintainability of the complaint filed after period of limitation provided by section 10(3) of FTO Ordinance, it is to observe that the complaint was filed on 7.4.2010 challenging both the provisional assessment made on 5.7.2007 and the demand cum show cause notice dated 2.3.2008. If the period of limitation is reckoned from the date of demand cum show cause notice, this complaint was filed after more than 2 years. Under section 10(3) of the FTO Ordinance a complaint is required to be made not later than six month from the day on which the person aggrieved first had the notice of the matter alleged in the complaint, but the Federal Tax Ombudsman may conduct any investigation pursuant to a complaint which is not within time if he considers that there are special circumstances and he deemed it proper in the interest of justice to entertain the complaint. The complainant failed to explain the special circumstances which could be deemed proper to entertain the complaint filed after more than two years of the issuance of show cause notice. Hence the complaint on the face of it was hopelessly barred by time.
FINDING:
In view of what has been discussed above, the complaint filed in defiance of provisions of Section ((2) (b) and 10(3) of the FTO Ordinance is not maintainable.”
5. The petitioner being aggrieved with such findings had preferred a Review application which was also dismissed by the learned Federal Tax Ombudsman vide order dated 01.08.2011 in the following terms:-
“Submissions made by the parties have been considered and record examined. Admittedly, the goods imported by the applicant were provisionally assessed on account of disagreement about their value. The matter was referred to Valuation Department that issued valuation advice dated 26.1.2008. The department on the basis of valuation advice finalized the provisional assessment creating demand of duty and taxes over and above the provisionally assessment value and the applicant was accordingly issued demand cum show cause notices. The applicant was thus duly informed about final determination of value. In case of any reservation, he was free to avail opportunity of hearing. The applicant though claims that his consultant attended the hearing but the record does not support him in said regard. Nor is the applicant able to make out a case of overcharging of duty or discriminatory treatment by the department, as the same valuation advice was applied uniformly to all importers. It is an admitted feature of the case that after provisional assessment the demand cum show cause notices were issued to the complainant within the period provided under Section 81(2) of the Customs Act, informing the applicant about final determination of value. In such view of the matter, the provisions of Section 81(2) of the Customs Act stood complied with.
The complaints have been filed with unexplained delay of more than two years of final determination of value. Although the FTO office is liberal in condoning delay, but only when there are special circumstances justifying entertaining of the complaint in the interest of justice (Section 10(3) of FTO Ordinance).
The Review Application not being maintainable are therefore rejected.”
6. Thereafter the petitioner had preferred a representation before the President in terms of Sections 32 of the FTO Ordinance, 2000, which was also dismissed vide order dated 24.5.2013 in the following terms:-
“This representation has been filed by complainant reiterating the pleas taken before FTO during original hearing as also during review proceedings. The primary ground raised by complainant is that the show cause notice issued beyond the time prescribed in Section 81(2) of the Customs Act, 1969. Even it be assumed that it is so the consequences are provided in Section 81(4) where under in case of failure to make final determination within the period specified in Section 81(2) the provisional determination shall be deemed to be final determination. So far as the matter of limitation is concerned complainant itself is relying upon failure of Agency to make a determination within the time prescribed. However, the complainant as well as representation is silent as to why complainant opted to remain silent and allowed the time prescribed in Section 10(3) of FTO Ordinance 2000 to run out even after the passage of the time stated by it. No grounds stand made out for interference with finding recorded by FTO.
Accordingly, the President has been pleased to reject representation of complainant.”
7. From perusal of the orders hereinabove, it appears that the petitioner, after issuance of demand notice dated 20.3.2008 did not made any effort to challenge such demand notice either before the hierarchy or the forums as provided under the Customs Act, 1969, and slept over its rights, and thereafter, preferred a complaint under FTO Ordinance, 2000, after lapse of more than two years, by impugning the demand notice on the ground that the provisional assessment which was required to be finalized within the stipulated period as provided under Section 81 of the Customs Act, 1969, was time barred. Such conduct on the part of the petitioner cannot be appreciated as redressal of grievance can be sought in accordance with law in the prescribed manner and limitation by approaching appropriate forum, whereas, it cannot be left at the choice and sweet will of the petitioner who after having availed a forum of his choice, may change the forum and challenge any order of assessment at a belated stage, on the ground that same was time barred under the law. The petitioner was at liberty to have challenged the demand notice dated 20.3.2008, if it felt aggrieved by such demand notice by filing proceedings before the departmental forums provided under the law, however, it approached the Federal Tax Ombudsman for such purposes who has rightly declined the relief for being beyond the mandate which relates to maladministration only. Even otherwise the controversy raised through instant petition before this Court is primarily dependent on assertion of facts, as to whether, on what date the provisional assessment was made and when such assessment was finalized. In the instant petition, the contention of the respondents is that final assessment was made within the limitation period as provided under Section 81 of the Customs Act, 1969; therefore, such disputed facts cannot be agitated before this Court under Article 199 of the Constitution. We are of the view, that instant petition is not maintainable in the given facts and circumstances of the instant case. Even otherwise, the petitioner had impugned the demand notice dated 20.03.2008 for the first time somewhere in 2010, at a very belated stage, when even the limitation period for filing complaint before the Federal Tax Ombudsman as provided under the FTO Ordinance, 2000, had expired, whereas, the petitioner had not sought and or made any effort to seek any other remedy under the Customs Act, 1969. Such conduct alone disentitles the petitioner, from seeking any discretionary relief from this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. Accordingly, we had dismissed instant petition in limine vide short order dated 13.2.2015 and the above are the reasons for the short order.
J U D G E
J U D G E
ARSHAD/