COLLECTOR OF CUSTOMS and another vs Messrs FATIMA ENTERPRISES LIMITED and others
This matter concerns a petition for leave to appeal against a judgment of the Sindh High Court, which had allowed a constitutional petition filed by an importer of bulk liquid cargo (palm oil). The High Court had invalidated a Central Board of Revenue letter dated 7-3-1992, which prescribed a formula for customs duty refunds based on 'Joint Survey Certificates' and 'Dry Certificates' rather than port out-turn reports. The Customs Department challenged this, arguing that the High Court improperly resolved disputed questions of fact in its constitutional jurisdiction, that the impugned letter was legally justified to prevent revenue loss from theft or pilferage during the transfer of oil from vessel to shore tanks, and that the respondent had failed to exhaust alternative statutory remedies available under the Customs Act. The Supreme Court granted leave to appeal to examine whether the High Court erred in its exercise of constitutional jurisdiction regarding factual disputes and the validity of the administrative formula for duty refunds.
- Can the High Court resolve disputed questions of fact in its extraordinary constitutional jurisdiction?
- Is a constitutional petition maintainable when an adequate and alternate remedy is provided under the Customs Act 1969?
- Does the Customs Department have the authority to mandate measurement of bulk liquid cargo at the vessel rather than the shore tank to prevent revenue loss?
- Customs Act 1969
ORDER
'IFTIKHAR MUHAMMAD CHAUDHRY, J. --- Petitioners have sought leave to appeal against the judgment of the Sindh High Court, dated 16-7-2003, concluding para there from is reproduced below for convenience:-- "For the foregoing reasons and discussions, we find that the action of the respondents in demanding further customs duty from the petitioner on the consignment of RBD Palm Oil as per quantity found in the tank on board the vessel at the port of destination is not in accordance with the law as well as contrary to the established practice relating to the discharge of the liquid consignment. Accordingly, we allow this Constitutional petition and direct the respondents to decide the question of refund of customs duty as claimed by the petitioner. The parties shall bear their own costs."
2. Learned Division Bench of the High Court, after having taken into consideration factual controversy between the parties has struck down the letter dated 7-3-1992 issued by the Central Board of Revenue for the purpose of regularizing the refund of bulk oil goods. It may be noted that respondents are importing palm oil from different places and according to the long-standing practice, the measurement of the oil for the purpose of levying custom, duty etc. Is to be taken in the vessel because thereafter the consignee itself is responsible for the shifting/pumping of the oil to the shore tank on its own arrangement and if any theft or pilferage takes place during this process, Custom Department is not bound to reduce the duty. Therefore, in order to meet this situation, Central Board of Revenue had issued letter dated 7-3-1992, contents whereof are also reproduced hereinbelow for understanding the formula adopted by Central Board of Revenue to grant refund of the duty:-- "(2) The matter regarding tolerance limit of () 0.25% on the quantity of bulk liquid cargo, discharged in the pipeline has been examined. Board is pleased to approve that on board "Joint Survey Certificate" and "Dry Certificate" shall simultaneously be considered for determination of tolerance limit. Tolerance allowance shall be worked out for the quantity of liquid bulk cargo on the basis of these certificates. Refunds should not be granted, if the "Joint Survey Report" and "Dry Certificate" confirm that quantity manifested had arrived and pumped in full, even if the K.P.T's out-turn report shows a shortage of more than 0.25%. Refunds lodged on the basis of K.P.T.'s out-turn reports should also not be entertained."
3. Learned Attorney-General contended that:--
(i) the Division Bench in the Chambers of the High Court has decided the entire questions of facts, which are based on mere speculation and surmises. To substantiate his plea, he has referred to different parts from judgment and contended that such questions could not have been resolved by the High Court in its extraordinary Constitutional jurisdiction because to accept such facts no cogent evidence was available on record and in this manner serious prejudice has been caused to the petitioners because if in future the petitioners are directed to take measurement of the oil in the shore tank, which remains in the control of the consignees, there would be no check on the theft or pilferage and the Customs Department will be deprived from the duty for which they are entitled according to the Customs Act and the other prevalent laws;
(ii) learned Division Bench had struck down the letter of Central Board of Revenue dated 7-3-1992 without any justification in law,
(iii) the Customs Act itself provides adequate and alternate remedy to an aggrieved person but without availing the same Constitutional petition, involving the questions of facts was not maintainable before the High Court.
4. On the last date of hearing notice was issued to respondent No,1 but no one has entered appearance despite of the fact that the notices were sent to them much before the date of hearing.
5. After hearing learned Attorney-General and going through the relevant facts and circumstances as well as law on the subject, we are inclined to grant leave to appeal, inter alia, to examine the contentions put forward by him.
6. Order dated 4-11-2003 to continue. However, office may fix appeals arising out of these petitions within a period of three months.