NEW JUBILEE INSURANCE vs A.C., CUSTOMS

' This writ petition impugns a notice, dated 1-2-1990 issued to the petitioner by the Assistant Collector (Bonds), Customs Dry Port, Moghalpura, Lahore. By means of the said notice the petitioner was directed to pay an amount of Rs,1,98,27,996 within fourteen days of the receipt of the said notice failing which action under section 202 of the Customs Act was proposed to be initiated for the recovery of the aforesaid amount as an arrears of land revenue.

2. It appears that the said notice was earlier impugned before the High Court of Sindh in C.P. No,D- 160 of 1990 moved by the petitioner. The said petition was dismissed vide judgment, dated 28-3- 1990 on the ground inter alia, that it was premature. It was held by the Honourable Court while deciding the Constitutional Petition, firstly, that remedies by way of appeal under section 193 and revision under section 195-A of the Customs Act had not been exhausted by the petitioner before the filing of the aforesaid Constitutional petition 193 of the Customs Act. To support his contention he also pointed out that by means of an amendment subsequent to the date of the impugned notice, orders in exercise of powers under section 202 of the Customs Act, were expressly excluded from the jurisdiction of the Appellate Authority under section 193 aforesaid. On this basis he contended that the Appellate Authority quite clearly was vested with the authority in respect of the impugned notice because the same was issued at a time when orders, in exercise of powers under section 202 of the Customs Act, had not been excluded from the competence and jurisdiction of the Appellate Authority. He also reiterated the arguments which have been discussed by the Honourable High Court of Sindh and which have found favour with the said Court while deciding C.P. No,160 of 1990.

5. Learned counsel for the petitioner however, argued that this Court had to make a determination, in the first instance, as to the applicability of section 202 of the Customs Act in the circumstances of the present case. He contended that the provisions of section 202 could only be invoked by the functionaries of the Customs Department in respect, of "dues" payable under the Customs Act.

According to him, the account being claimed by the department was not under the said Act but was under an insurance policy issued by the petitioner in favour of the Collector of Customs, Lahore. Learned counsel for the petitioner contended that this alone was sufficient to take the matter outside the jurisdiction of the Customs functionaries. He also argued that only dues which were finally determined by a Court, could be recovered from the petitioner pursuant to the aforesaid insurance policy. In support of this contention he referred to the case titled Constructions Ltd., Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan, P.W.D., Thatta and another (PLD 1975 Karachi 1059). It was on the basis of these submissions that learned counsel for the petitioner argued that the impugned notice did not fall within the jurisdiction of the Appellate Authority.

6. The above-noted contention of learned counsel is without force. The question before me which has arisen on account of the preliminary objection as to the maintainability of this petition, is as to whether this Court should itself decide the issues being raised by learned counsel for the petitioner or should this matter be left for decision in appeal by a competent forum under the Customs Act.

The arguments being advanced by learned counsel for the petitioner, can be advanced before the Appellate Authority also under the Customs Act. The question as to whether the amount demanded through the impugned notice, is an amount due under the Customs Act and the question as to whether the aforesaid sum at all constitutes "dues" under the said Act, squarely falls within the ambit of section 193 of the Customs Act as noted above. This is particularly made clear by the amendment brought about in section 193 of the Customs Act in 1995 whereby a notice of demand section 202 of the Customs Act, was expressly excluded from the jurisdiction of the Collector (Appeals).

7. Finally, learned counsel for the petitioner contended that notwithstanding the existence of a departmental remedy, the jurisdiction of this Court under Article 199 of the Constitution was not barred. There can be no dispute with this well-settled principle. However, this Court as well as the Honourable Supreme Court have consistently held that departmental remedies and procedures should not be short-circuited by exercising writ jurisdiction barring certain recognized exceptions.

8. I have also gone through the judgment of the Honourable Sindh High Court in C.P. No,D-160 of 1990 and I am in respectful agreement with the reasoning and conclusions reached therein as to the maintainability of the said petition in the presence of the departmental remedies by way of appeal and revision which were provided for in the Customs Act. As noted above, the finding of the Sindh High Court on this issue was set aside by the 'Honourable Supreme Court, only because it lacked 'territorial jurisdiction'. This Court, however, does not suffer from any such want of jurisdiction.

9. In view of the above discussion, I find that this petition is not maintainable. It is, therefore, dismissed.