SAID NADEEM ELECTRO LIMITED through Chairman vs COLLECTOR OF CUSTOMS AND CENTRAL EXCISE_ COMMISSIONER SALES TAX, PESHAWAR and 3 others
This petition for leave to appeal arises from a judgment of the Peshawar High Court, which dismissed the petitioner's constitutional petition regarding a sales tax exemption claim for television sets. The High Court held that the writ petition was incompetent due to the availability of an alternate adequate remedy before the Central Board of Revenue and the presence of factual controversies. Additionally, the High Court proceeded to record findings on the merits, concluding that the petitioner's case was not covered by the relevant notification. Following this, the petitioner unsuccessfully appealed to the Customs, Central Excise and Sales Tax Appellate Tribunal, which dismissed the appeal for lack of jurisdiction to review a High Court judgment. The Supreme Court granted leave to appeal to determine whether, upon finding a writ petition incompetent due to the failure to exhaust alternate remedies, a High Court should refrain from expressing views on the merits of the controversy. The Court noted that the High Court's findings on merits potentially prejudiced the petitioner's ability to seek relief before the appropriate statutory forum.
- Whether a High Court, after determining that a writ petition is incompetent due to the existence of an alternate adequate remedy, should refrain from expressing views on the merits of the case?
- Does a High Court's finding on the merits of a case, while simultaneously dismissing a writ petition for lack of jurisdiction, prejudice the petitioner's right to seek relief before the appropriate statutory appellate forum?
- Article 185(3), Constitution of Pakistan 1973
ORDER
' IRSHAD HASAN KHAN, J.---This petition for for leave to appeal is directed against the judgment dated 7-6-1995 of the Peshawar High Court.
2. The petitioner filed a Constitutional petition before the High Court for a declaration that they were exempted from payment of sales tax in respect of black and white televisions of 14" and 17" size produced by their factory situate at Khalabat, Haripur, District Abottabad, N.-.W.F.P. Under Notification No,529(1)/88, dated 26-6-1988, therefore, demand of the respondents for payment of sales tax was without lawful authority.
3. The learned Division Bench of the Peshawar High Court dismissed the writ petition being incompetent, on the ground that alternate adequate remedy was available to the petitioners by approaching the C.B.R. And further that factual controversy was involved therein. The finding was also recorded on merit that the case of the petitioners was not covered by the notification referred above.
4. Pursuant to the High Court's judgment, instead of approaching this Court in terms of Article 185(3) of the Constitution, the petitioners preferred an appeal before the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad; on the basis of legal advice tendered to them which they bona fide believed. The appeal was, however, dismissed by the Tribunal by order, dated 5-11- 1995 with the following observations:--- "2. In our considered view the said appeal is not warranted by law as this forum cannot sit in review over the judgment of the Honourable Peshawar High Court. So we are left with no jurisdiction to consider this appeal. Consequentially the appeal is dismissed for lack of jurisdiction. The appellant however, is free to seek legal remedy under the law against the order of the Honourable Peshawar High Court, passed in the writ petition referred to above."
5. Mr. Gul Zarin Kiani, learned counsel for the petitioners argued that in view of the observations of the learned Division Bench of the High Court that the writ petition was not competent it was not appropriate to express the views on the merits of the controversy which has resulted in grave miscarriage of justice, in that, the order passed by the learned High Court has prevented and deprived the Tribunal from passing an order on merits in the exercise of the jurisdiction vested in it by law.
6. After hearing the learned counsel for the parties at some length, we are inclined to condone the delay in filing this petition and grant leave to appeal to consider whether in the facts and circumstances of the case, after having found that the writ petition was not competent without the petitioners exhausting the alternate remedies, the High Court ought to have refrained from expressing views on the merits of the case.