Dadabhoy Energy Supply Company Ltd vs Federation Of Pakistan And Other
This petition for leave to appeal was filed against the judgment of the Sindh High Court, which dismissed the petitioner's constitutional petition challenging various Statutory Regulatory Orders (S.R.Os.) and provisions of the Customs Act, 1969 relating to the imposition of customs and regulatory duties on power generation units. The core legal question before the High Court and this Court was whether notifications previously examined and upheld by the Supreme Court could be re-litigated on the same grounds of being discriminatory and ultra vires. The Supreme Court held that once a notification has been examined and declared lawful by this Court in earlier pronouncements, it cannot be assailed again on the same grounds, as doing so would amount to reviewing the correctness of a binding judgment. The petition was accordingly dismissed and leave to appeal was refused.
- Can a statutory notification previously examined and upheld by the Supreme Court be re-assailed on the same grounds in a constitutional petition?
- Whether the imposition of customs duty on power generation units through S.R.Os. is discriminatory and ultra vires the Constitution of Pakistan, 1973?
- Does section 18(2) of the Customs Act, 1969 suffer from excessive delegation of powers?
- Section 18(2), Customs Act 1969
- Section 50(5), Income Tax Ordinance 1979
- Article 199, Constitution of Pakistan 1973
ORDER
MR. JUSTICE SAIYED SAEED ASHHAD.-(l). This petition for leave to appeal has been filed against the Sindh High Court judgment, dated 23.12.2003 in Constitutional Petition No. 272 of2000 dismissing the same.
2. Brief facts of this case are that petitioner had filed C. P. No. 272 of 2000 in the High Court of Sindh wherein they sought the following reliefs:- "It is therefore, prayed in the interest of justice that this Honourable Court may be pleased to:-
(a) declare that S.R.O. 584(I)/95 is discriminatory, unlawful, unconstitutional and void ab initio insofar as it amends S.R.O. 279(I)/94 and seeks to impose Customs Duty on power generation unit on the basis of, who the ultimate purchasers are;
(b) declare that S.R.O. 585(I)/95 is discriminatory, unlawful and ultra vires the Constitution of Pakistan, 1973 and should be struck down;
(c) (i) declare that S.R.O. 560(I)/96 is ultra vires the Customs Act, 1969, and the Constitution of Pakistan, 1973 and should be struck down;
(ii) in alternative section 18(2) of the Customs Act, 1969 be struck down for being in excessive delegation of powers;
(d) direct the respondents to issue an Exemption Certificate in terms of section 50(5) of the Income Tax Ordinance, 1979 and in the meanwhile to clear the goods of the petitioner without demanding payment of any Advance Income Tax;
(e) grant costs of the petition;
(f) grant interim relief by way of staying the recovery of Customs Duty, Regulatory Duty from the petitioners in respect of consignments imported under L/C Nos. SCB/408/DCIL and 02/10660/96 and Bills of Entry, Import General Manifest Nos. 1352/96 dated September 19, 1996, 1372/96, dated September 22, 1996, 1560/96, dated October 26, 1996, No. 1612/96 dated November 5, 1996, 1849/96 dated December 21, 1996 and 255/97 dated February 19, 1997, without payment of the impugned Regulatory Duty, Customs Duty and Advance Income Tax;
(g) direct the respondents or anyone acting for through or under them not to take any coercive measures against the petitioners and or their Directors till a decision in this petition;
(h) grant such other relief as may be deemed just and proper by this Honourable Court."
During the course of arguments before the High Court the counsel for respondent No. 2 Raja M.
Iqbal, drew the attention of learned Division Bench of Sindh High Court to the pronouncement made by this Court in the case of Anoud Power Generation Ltd. v. Federation of Pakistan PTCL 2001 CL. 277. In this case this Court had refused leave against the order of the Lahore High Court in a petition assailing Notification S.R.O. 279(I)/94 as amended by S.R.O. 584(I)/95 and S.R.O. 585(I)/95 on the ground of being discriminatory, unlawful and ultra vires the Constitution, maintaining, the order of the Lahore High Court declaring the notification in question as lawful and intra vires to the Constitution and also not being discriminatory.
3. From the impugned judgment of the Sindh High Court it transpires that Mr. I.H. Zaidi, learned Advocate Supreme Court for the petitioner who also appeared on behalf of the petitioner in the Sindh High Court conceded that the S.R.Os. In question were examined by the Court in the case of Collector of Customs v. Ravi Spinning Ltd. PTCL 1999 CL. 553 and was not found to be discriminatory or ultra vires the Constitution. The High Court in view of such concession/statement made by Mr. I.H.
Zaidi, found that once it was admitted that the notification in question was examined by this Court and it was found that neither it was unlawful nor ultra vires the Constitution then it could not be assailed again on the same grounds before the Court as it would have amounted to examining or determining the correctness, legality and propriety of a judgment given by this Court on the same issue in an earlier case, which was not permissible in law. Therefore, the Sindh High Court came to the conclusion, and rightly so that nothing was left for adjudication as it could not take a view contrary to the one taken by this Court.
4. For the foregoing facts and discussion this petition is found to be misconceived and also without any substance. Accordingly it stands dismissed and leave to appeal refused.