GIDC review petitions: SC cannot make ruling on matters pending before high courts: counsel

ISLAMABAD: Makhdoom Ali Khan, counsel for industrial and commercial entities, said the Sindh High Court (SHC) in 377 cases issued decrees; therefore, they were past and closed transactions and the Supreme Court could not reopen it.

A three-judge bench, headed by Justice Mushir Alam, heard the review petitions of various textile, cotton, sugar mills, ceramics companies, chemicals, CNG stations, match factories, cement companies, and aluminum industries regarding the GIDC levy.

The counsel argued that “what the court cannot do directly cannot be done indirectly.”

He said in view of Article 175A, the Supreme Court did not have constitutional jurisdiction to make ruling on the cases pending before high courts, adding it could give the finding, but no ruling on pending matters before high courts.

Justice Faisal Arab said in the judgment the court had restrained the federal government from charging cess, but as far as the past recovery was concerned they could ask the government to develop a mechanism.

Makhdoom Ali Khan argued that if the industries had passed on the burden (cess) to the customers then they had to pay the cess, but if they were not collecting the cess from their customers then they should not be entitled to pay the cess.

He said if the government alleged that an industrial or commercial entity was collecting cess, while the party disputed it then the matter should be determined by the High Court.

Additional Attorney Aamir Rehman informed that the government could relax the time from 24 months to 36 months for the recovery of the cess arrears.

The Supreme Court in its August 13, 2020 judgment directed; “All industrial and commercial entities which consume gas for their business activities pass on the burden to their customers/clients therefore all arrears of ‘Cess’ that have become due upto 31.07.2020 and have not been recovered so far shall be recovered by the Companies responsible under the GIDC Act, 2015 to recover from their consumers. However, as a concession, the same be recovered in twenty-four equal monthly installments starting from 01.08.2020 without the component of late payment surcharge.”

Makhdoom Ali Khan and the lawyers of the parties sought time to get instruction regarding the suggestion.

The counsel contended that the apex court under Article 186-A of the Constitution could transfer cases from one high court to another, but it had no jurisdiction to undo a decree.

He told the Sindh High Court in 2017 passed decrees in various suits in favour of the business entities, adding until 20-02-2020, when the Supreme Court had reserved the GIDC judgment, there was no appeal before the SHC.

He said the federation had filed a petition against one industry and not the 377 business entities.

Justice Mushir Alam said recently a four-judge bench had ruled that the Supreme Court could not decide the cases pending before a high court.

Under Article 175-A, the Supreme Court can only overcome the technical obstacles, he added.

The Supreme Court on August 13, 2020, with a majority of two to one dismissed all the appeals and petitions of industrial and commercial entities, and held levy imposed under Gas Infrastructure Development Cess Act, 2015 was in accordance with the provisions of the Constitution.

The judgment noted that Rs295 billion had already been collected towards cess-revenue and together with the outstanding amount the total sum by the end of this month (August) would be in the vicinity of seven hundred billion rupees, which was more than what was the estimated cost of the projects mentioned in Section 4 of the GIDC Act, 2015, therefore directed, “From the date of this judgment (13th August), we restrain the Federal Government from charging Cess which power of the Federal Government shall remain suspended until the Cess-revenue collected and that which is accrued so far but not yet collected is expended on the projects listed in Section 4 of the GIDC Act, 2015.”

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2020