IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present: 
 
Mr. Justice Mushir Alam 
Mr. Justice Qazi Faez Isa 
Mr. Justice Sardar Tariq Masood 
 
 
Civil Petitions for leave to Appeal No.549-P of 2015, 141-P & 142-P of 2017 
Against the judgment dated 10.07.2015 passed by the Peshawar High Court, Peshawar in 
W.P No.1283-P/2015 and against the common Judgment dated 21.9.2015 passed in W.P 
No.3685-P/2015 and in Review Petition No.160-P of 2015 (arising out of W.P No.1283-P/15) 
respectively).   
 
 
M/s Bara Ghee Mills (Pvt.) Ltd.  
 
 
in CPLA No.549-P/15  
M/s Bilour Industries (Pvt.) Ltd. 
 
 
in CPLA No.141-P/17 
M/s Bara Ghee Mills (Pvt.) Ltd. 
 
 
in CPLA No.142-P/17 
Petitioner(s) 
VERSUS 
The Assistant Collector Customs & 04 others 
Respondent(s) 
(all cases) 
 
For the Petitioner(s): 
 
Mr. Isaac Ali Qazi, ASC 
For FBR: 
 
 
 
Hafiz Ahsan Ahmed Khokar, ASC 
(on Court’s call) 
Date of Hearing:  
 
06.04.2017 
 
 
JUDGEMENT 
 
 
Mushir Alam, J.- In brief, both the Petitioners, who are 
manufactures of Ghee and Oil, initially challenged the restriction on the 
export of their products to Afghanistan and other Central Asian countries 
in terms of  sub-rule (6) of Rule 15 of the Manufacturing In Bond Rules, 
1997, dated 6.11.1997 (abbreviated as MIB Rules), through Writ 
Petitions, in Peshawar High Court, which were dismissed vide 
consolidated Judgment dated 3.5.2001 (since reported as Messrs 
Shahzad Ghee Mills Ltd., Swabi  versus Pakistan, through Secretary, Finance, 
Government of Pakistan, Islamabad and 6 others 2001 CLC 1942). It was held 
that the impugned restrictions is not in terms of MIB Rules but, in terms 
of Para 8 of the Export Policy Order 2000 made under Import and Export 
(Control) Act, 1950; while dismissing the writ petitions it was further 
directed that:-  
“Interim order dated 31.08.2000 and all other interim 
orders passed by this Court in this writ petition or in 
the connected writ Petitions shall stand with drawn.  
Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 
 
 
 
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However, the Petitioners who have exported their 
manufactured goods to Afghanistan via land route 
under the orders of this (i.e. High Court) uptodate, the 
respondents would be entitled to claim all Government 
dues leviable on such goods and shall recover them in 
accordance with law”.  
2. 
 
The Petitioners herein challenged the above noted judgment 
through Civil Appeals No.1137 of 2001 and 1134 of 2001 respectively 
before this Court, which were also dismissed on 06.02.2014 along with 
other connected Civil Appeals. Petitioners filed Civil Review Petitions 
against said judgment, which too were dismissed. 
3. 
 
The proceedings for the recovery of customs duties and other 
leviable government dues were stayed at the motion of the Petitioners in 
earlier round of the proceedings. Consequent upon the dismissal of the 
above noted Civil Appeals on 06.02.2014 and vacation of interim 
injunctive orders the respondents resumed the recovery proceedings, as 
directed by the learned Bench of the High Court as reproduced in 
paragraph preceding above.   
4. 
 
The petitioner Bara Ghee Mills (Pvt.) Ltd; through W.P No. 
2205-P of 2014, and Bilour Industries Pvt. Ltd. through W.P No.3685-P of 
2015, challenged the resumption of recovery of government dues 
proceedings, which were dismissed on 30.10.2014 and 21.9.2016 
respectively. 
5. 
 
Writ Petition No.2205 of 2014 [filed by Bara Ghee Mills (Pvt.) Ltd.] was 
essentially dismissed on the ground inter-alia that alternate remedy is 
available to the Petitioner under Rule 142 of the Customs Rules, 2001. 
Consequently the Petitioner challenged the recovery proceedings in terms 
of Rule 142 of the Customs Rules, 2001 before the Deputy Collector 
Customs (Recovery), which was dismissed, vide order in original dated 
10.4.2015, inter-alia holding as follows:-  
“The Chargeability of duty and taxes on the goods 
imported into and exported under the scheme enunciated 
in the Manufacturing-in-Bond Rules was never objected to 
during litigation before the High Court or the Supreme 
Court.  
The recovery proceedings were suspended in compliance 
of the orders of the superior courts where the matter 
remained sub-judice and as soon as the courts orders 
attained finality, the proceedings so suspended were 
resumed and there is no question of time limitation in the 
instant case.” 
Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 
 
 
 
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6. 
 
Bara Ghee Mills (Pvt.) Ltd. once again challenged the above 
order through W.P No.1283 of 2015, which was dismissed vide impugned 
Judgment dated 10.7.2015. It was assailed in Review Petition No.160 of 
2015 before the very Bench of the Peshawar High Court.  The Judgment 
dated 10.7.2015 rendered in W.P No.1283 of 2015 is subject matter of 
CPLA No.549-P of 2015, and the judgment dated 21.9.2016 in (Review Petition 
No.160 of 2015) is challenged through CPLA No.142-P of 2017, which is also 
barred by 121 days. 
7. 
 
Learned ASC for the Petitioners argued that, the impugned 
demand has been raised without any show cause notice and 
adjudication. Secondly; demand is barred by limitation; subject goods 
were exported via land route during the period from 20.03.2001 to 
30.05.2001 and the limitation to raise demand under Section 32 read 
with section 211 of the Customs Act, 1969 is 5 years, where as impugned 
demand has been raised in 2014, thus barred by time. 
8. 
 
We have heard the arguments and perused the record. 
Attending to CPLA No.549 of 2015 (Bara Ghee Mills Pvt. Ltd.). It may be observed 
that elaborate procedure for the recovery and remedy against the 
recovery of the government dues, is provided for under Chapter XI of the 
Customs Rules 2001. Appeals and Revisions against the Orders of 
adjudicating Authority/Forum/Tribunals are catered for under Chapter 
XIX of the Customs Act, 1969 which proceedings culminate in the High 
Court in its referral jurisdiction under Section 196 of the Customs Act, 
1969. It is settled position in law that “where an exclusive Tribunal or a 
regular Court has jurisdiction in a matter but the legislation,  creating such 
Court or forum or conferring jurisdiction on the same, also ends up by 
providing appellate or revisional jurisdiction to the High Court it self. 
Obvious example could be Civil and Criminal Proceedings, emanating 
under the Code of Civil and Criminal procedure, Income Tax Reference, 
Customs Appeals etc. In such matters, where the High Court itself is the 
repository of ultimate appellate, revisional or referral powers conferred by 
special relevant statute, it is rarest of case that the High Court may be 
persuaded to entertain a Constitution remedy in preference to its own 
appellate, revisional or referral dispensation arising in course of time” (See 
Khalid Mehmood versus Collector of Customs, Customs House, Lahore 
(1999 SCMR 1881 @ 1887). Learned Counsel for the Petitioners was not 
able to point out any exception, to directly invoke the writ jurisdiction of 
the High Court against the Order, when complete hierarchy to challenge 
Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 
 
 
 
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order dated 10.4.2015 recorded by the Deputy Collector Customs 
(Recovery), leading to High Court was available, approaching High Court 
directly, bypassing all such forum is not approved. 
9. 
 
We have, also examined the application under section 142 of 
the Customs Rules, 2001 (@ 145 of the paper book), challenging the 
resumption of recovery proceedings which was essentially on the ground 
inter alia (para 5(iii) thereof) that “once goods exported under the 
provisions of Customs Act, 1969 ‘no duty and tax can be levied thereon nor 
can be demanded’. Beside demand is made without adjudication and 
being barred by time”. 
10. 
 
It is matter of record, that earlier, Petitioners were denied 
export of goods to Afghanistan via land route, without payment of leviable 
Custom duties and taxes, whereupon the Petitioner filed W.P No.345 of 
2001 and obtained interim order for the export of its goods via land route 
till final decision, As noted above the writ petition was dismissed, and so 
also interim order was vacated with directions to the Respondents to 
recover the government dues. Accordingly; after the dismissal of Civil 
Appeals by this Court, demand notices stood revived, as observed by the 
Deputy Collector (Recovery Officer), in the impugned order passed on 
application under Rule 142 of the Rules, 2001 that the impugned 
demand is not based on any eventuality within the contemplation of 
Section 32(2)(3) of the Customs Act, 1969, that may call for adjudication 
and or question of limitation may occur.  
11. 
 
Learned Counsel for the Petitioners was not able to 
demonstrate that the impugned demand for the recovery of government 
dues is based on short levy or for the recovery of erroneously refunded 
duties for the reasons of any untrue statement, inadvertence error etc. or 
by reason of some collusion with the officers of the customs, in which 
case, such duties could only be retrieved after due notice within three 
years from the date of occurrence of eventualities postulated in 
subsection (5) of Section 32 of the Customs Act, 1969. 
12. 
 
In terms of Rule 135 of Customs Rules of 2001, where the 
government dues are outstanding, the refereeing authority, issues a 
demand notice as prescribed, to the recovery officer certifying that all 
other formalities under the Act have been completed and there exists no 
bar or stay order against the proposed recovery.  As noted above bar of 
injunctive order, against recovery of government was vacated, when the 
Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 
 
 
 
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writ petitions filed by the Petitioners were initially dismissed on 3.5.2001 
and finally when the Civil Appeals were dismissed on 06.02.2014 
followed by dismissal of Review Petitions by this Court.  
13. 
 
From the Record it appears that other similarly placed 
exporters of Cooking Oil and Ghee, have already deposited the amount of 
government dues on  dismissal of their Civil Appeals by this Court, as 
reflected from the paragraph 8 of the Orders of the Deputy Collectors 
Customs (Recovery) dated 10.4.2015.  
14. 
 
Plea of the Petitioners that subject consignment was 
exported to Afghanistan during the period from 20.03.2001 to 
30.05.2001, any demand for payment of government dues made beyond 
three years as provided under sub-section (3) of Section 32 of the 
Customs Act and or beyond 5 years during which period the Petitioners 
were required to maintain of import and export transaction under Section 
211(3) thereof is barred. Contentions are preposterous, it is true that 
demand for the recovery of duty and or charge leviable but could not be 
levied, or short levied for the reasons of untrue declaration and or 
collusion, could be raised within 5 years from the date of such detection 
of untrue declaration or collusion and or within 3 years from the date of 
any inadvertent error and or misconstruction of amount of duty; which is 
short levied and or refunded. Instant claims and demand of recovery of 
‘government dues’ does not fall either under section 32 nor, under 
section 211 of the Customs Act 1969, but is based on demand served 
under section 202 of the Act, 1969 for payment of the amount of 
government dues which were payable by the Petitioners on account of 
export of the good via land route.  
15. 
 
Suffice to say that the recovery/demand notices were already 
in the field, which were stayed in the first round of litigation as noted 
above. "Government dues" as defined under Rule 133 (vi) of the Customs 
Rules, 2001  “means any recoverable amount of customs duty or any tax, 
duty or other levy being collected in the same manner as customs-duty, 
an adjudged penalty or fine or any amount unpaid which may be payable 
under any bond or instrument executed under the Act or such other law 
or the rules made there under” Chapter XI of the Customs Rules, 2001 
read with Section 202 of the Customs Act, 1969 lays down the 
mechanism and procedure for the recovery of the same. Resumption of 
recovery proceedings, which were earlier stayed in judicial proceedings, 
Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 
 
 
 
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would not be hit by limitation, as for the recovery of “governmental dues” 
under section 202 of the Act 1969, no limitation is provided. In case 
Petitioners had any reservation as to calculation and or determination of 
such dues and or liabilities, at the time it was initially raised, host of 
domestic remedies and forum under the Customs Act, 1969 read with 
Customs Rules of 2001 culminating in referral jurisdiction of the High 
Court could have been availed, which were never availed and now it 
cannot be questioned in writ Jurisdiction under Article 199 of the 
Constitution of Pakistan, 1973. (One may see Messrs Paramount Spinning 
Mills Ltd versus Customs, Sales Tax and Central Excise Appellate Tribunal 
and another 2012 SCMR 1860).  
16. 
 
Writ Petition No.3685 of 2015 filed by the petitioners before 
Peshawar High Court were rightly declined on the ground that the 
petitioners have alternate remedy by way of an “Application for the 
Determination of the dispute” under rule 142 of the customs Rule 2001, 
which remedy was availed by the petitioners in CPLA No.141-P of 2017 
(Bilour Industries (Pvt.) Ltd.); was rightly declined as the “demanded duties” 
raised by the Respondents were already adjusted at the request dated 
27.03.2014 of the petitioners (@ page 118 of CPLA No.141-P of 2017), 
therefore, in view of foregoing petitioners were not able to make out any 
case for interference. Accordingly, leave is declined and Petitions are 
dismissed. 
 
   
 
   
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Judge 
ISLAMABAD, THE  
6th of April, 2017 
arshed 
 
Approved for Reporting