1999SCMR979

 
[Supreme Court of Pakistan]
 
Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Sh. Riaz
Ahmed, JJ
 
Messrs ZEENAT MANUFACTURING (PVT.) LTD.,
GADOON AMAZAI INDUSTRIAL ESTATE, SWABI---Petitioner
 
versus
 
THE SECRETARY, SURVEY AND REBATE, CENTRAL BOARD OF
REVENUE, GOVERNMENT OF PAKISTAN, ISLAMABAD
and others---Respondents
 
Civil Petition for Leave to Appeal No. 1348 of 1998, decided on 24th November, 1998.
 
(On appeal from the judgment, dated 12-11-1998 passed by Peshawar High Court, Peshawar,
in Writ Petition No. 1169 of 1997).
 
(a) Customs Act (IV of 1969)---
 
----S.19---S.R.O. 517(1)/89, dated 3-6-1989---Constitution of Pakistan (1973), Art. 185(3)---
Grant of exemption of customs duty and sales tax on imported raw material---Withdrawal of
such grant after about two years---Petitioners on representation was granted 25 %
compensation rebate on one time basis for a period of one year only specifying the conditions
of availing said benefit-- Petitioner, however, was unable to import raw material within
specified period and sought further extension which was granted but petitioner could not
exhaust (prescribed quota) within extended period and again requested for extension of time
which was refused---Contention of the petitioner before Supreme Court was that time being not
essence of availing benefit, further extension should have been granted---Validity---Held,
petitioner could not claim extension of time as of right---Objection about time being not the
essence of availing benefit, having not been agitated before the High Court such plea could not
be raised before Supreme Court for the first time---Petitioner on four occasions having applied
for extension of time for availing the facility which was granted, was fully conscious about
time span for utilization of benefit, thus, objection that time was not of essence for the
performance of obligation, automatically lost significance---No arbitrariness or discrimination
of treatment of concerned Authority in refusing to grant further extension having been shown,
leave to appeal against order of High Court dismissing Constitutional petition against such
refusal, was dismissed by Supreme Court.
 
(b) Constitution of Pakistan (1973)---
 
----Art. 199---Constitutional jurisdiction of High Court---Scope---Administrative discretion---
Judicial review---Where administrative discretion does not reflect any perversity,
unreasonableness, discrimination, arbitrariness or wrong exercise of authority, same could not
be legitimately challenged by invoking Constitutional jurisdiction.
 
Farooq Adam Khan, Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for
Petitioner.
Nemo for Respondents.
 
Date of heating: 24th November, 1998
 
JUDGMENT
MUNAWAR AHMED MIRZA, J.---This petition for leave to appeal is directed against
judgment, dated 12-11-1998 passed by Peshawar High Court in Writ Petition No. 1169 of
1997.
 
2. Petitioner, a 'private limited company, is manufacturing carpets in the factory located at
Gadoon Amazai Industrial Estate, Swabi. The Government of Pakistan in order to encourage
setting up of new industries at Gadoon Amazai had granted exemption of customs duty and
sales tax vide Notification NO.S.R.0.517(1)/1989, dated 3-6-1989, on the raw material
imported for said industrial units. This exemption was later withdrawn on 9th May, 1991.
However, on the recommendations made by Economic Coordination Committee of the Cabinet
one time relief allowing 25 % of total duty value to import raw material for one year was
extended to all the existing industrial units which were under production in Gadoon Amazai.
Whereas the industrial units which had not yet commenced its production 25% compensation
relief was calculated on the production capacity assessed by Sarhad Development Authority
subject to verification by Central Board of Revenue. The decision of E.C.C. of the Cabinet,
dated 31-3-1992 was communicated to Ministry of Industry, and C.B.R. towards 12th April,
1992.
 
3. It may be seen that on the representation of petitioner respondent No. l (Secretary, Survey
and Rebate, Central Board of Revenue, Islamabad) granted them 25 % compensation/rebate on
one time basis for a period of one year only vide Letter C.No.1 (75) S&R-2/90(B), dated 29th
March, 1995 specifying the conditions of availing said benefit. Petitioner was unable to import
raw material within specified period and sought further extensions which were granted by
respondent vide Letters (i) 1(75)S&R-2/90(B), dated 25-7-1996 and (ii) C.No.1(75)S&R-
2/90(B), dated 23-9-1996 expiring by 31-12-1996 petitioner could not exhaust prescribed quota
within stipulated period therefore, on 28th December, 1996, again written request was made
seeking extension of period to avail benefit of 25 % compensation/rebate. This time request
was rejected through Letter No.1(75)S&R-2/90(B), 29th April, 1997. Petitioner had challenged
above order regarding refusal to extend the period for availing benefit of 25 % compensation
through Writ Petition No. 1169 of 1997 before Peshawar High Court. The petition was,
however, dismissed on 12-11-1998. Operative portion of the judgment reads thus:--
 
"12. Some of the extension in time granted to other industrial units show that time had been
extended up to the maximum of 4 years. But those units were granted the relief soon after it
was announced in the year 1992. On the other hand, the petitioners before us applied for and
given the relief on different dates in the years 1995 and 1996. Since a number of applications
were being made to the Central Board of Revenue by the industrial units in Gadoon Amazai for
enhancement of quota and extension of time for import of the raw material, the Board decided
not to entertain such applications after 30-4-1997; by which time they had already started
refusing extension of time. As the C.B.R. was competent to extend time, it had also the power
to refuse it. The policy by which enhancement of the quota and extension of time limitation
was brought to an end is not unreasonable. The plea of discrimination does not hold ground
because after the policy no extension of time had been given to any industrial unit. Cases of
extension of longer period in the past cannot be pressed into service to make out a case of
discrimination because, as stated above, those units were granted the concession much earlier
than the petitioner and the extensions were made for specified reasons. This ground of the
petitioner, thus, also fails.
 
13. For the foregoing reasons we hold that the decision of the Central Board of Revenue. not to
allow extension of time for the import of raw material under the 25% relief was not illegal and,
therefore, not liable to be set aside. The writ petitions are, therefore, dismissed, with no orders
as to costs."
 
The above decision of the High Court has been assailed through present petition for leave to
appeal.
 
4. Mr. Farooq Adam Khan, Advocate Supreme Court, emphatically urged that the industrial
unit of petitioner was entirely new set up. It has commenced production during 1994-95 and
was confronted with multiple problems, therefore, compensatory quota of importing raw
material could not be availed within specified period. Learned counsel convassed that despite
persuation respondent had granted extension only for short periods, wherein it was not
practicable to make effective arrangements for importing requisite quantity of raw material.
According to him period of one year specified in original letter providing 25 % compensation
on the imported raw material did not disclose the time to be essence of facility granted to
petitioner, therefore, he greatly stressed that refusal of respondent in extending period was
arbitrary and unlawful.
 
5. We have carefully examined the record in the light of above' submissions. It may be seen
that original letter, dated 29th March, 1995 issued by respondent No. l expressly mentions
period of one year for availing 25 % relief on one time basis. Therefore, firstly, petitioner could
not claim extension of time as of right. Secondly, objection about time being not the essence of
availing benefit of 25.% compensation was, admittedly, not agitated before the High Court. As
such on the settled principles new pleas which were not raised before High Court cannot be
gone into by this Court. For authority reference 13 can be made to observations in PLD 1991
SC 640 (Mst. Neelam Nawaz v. The State).
 
6. Thirdly, it is quite manifest that petitioner on four occasions had applied for extension of
time for availing the, facility granted by means of letter, dated 29-3-1995 (supra). This aspect
implies that petitioner being fully conscious about time span for utilization of above benefit has
repeatedly sought extension of period. Therefore, objections that time was no essence for the
performance of obligation automatically loses significance.
 
7. Lastly, record reveals that respondents have shown sufficient indulgence in granting period
for utilization of quota upto 31-12-1996. There does not appear any arbitrariness or
discriminatory treatment of concerned authorities in refusing to grant further extension.
Obviously when administrative discretion does not reflect any perversity unreasonableness,
discrimination, arbitrariness or misexercise of authority same cannot be legitimately challenged
by invoking Constitutional jurisdiction. Therefore, Peshawar High Court was quite justified in
declining to interfere with said decision of the respondent.
 
For the above reasons, we find that present petition is without any substance, which is
accordingly dismissed and leave prayed for is rejected.
 
M.B.A./Z-22/S Petition dismissed.