Customs Act (IV of 1969)---

----S. 194B(2)---Income Tax Ordinance (XXXI of 1979), S.156---Income tax Act (XI of 1922), S. 35---Rectification of mistakes---Jurisdiction of Customs, Excise and Sales 'Fax Appellate Tribunal---Scope---Vehicle of the appellant was confiscated by the Customs Authorities on the suspicion of the same being smuggled---Appellant filed application under S.194-B(2:) of the Customs Act, 1969, alleging that there was an error in the order passed by the. Tribunal as the appellant's counsel did not appear before the Tribunal due to his illness and the error could be corrected-- Tribunal dismissed the application---Validity---Scope of the provision of S.194B(2) of the Customs Act, 1969, is wider than that of the parallel provision of S.35 of the Income-tax Act, 1922 and 5.156 of the Income Tax Ordinance, 1979---Provisions of Income-tax Act, 1922, as well as Income Tax Ordinance, 1979, can justifiably be resorted to rectify the mistake admittedly having crept in the order of the Tribunal---Nothing restrained the Tribunal id the present case, from recalling their earlier order---Interest of justice ought to have served to undo a wrong for which the appellant was not at fault---Order passed by the Tribunal- was set aside and the rectification application filed by the appellant was deemed to be pending before the Tribunal-- -Appeal was allowed accordingly.

Maharani Mills (Private) Ltd. v. Income-tax Officer, Probandar (1959) 36 ITR 350; T. S. Blaram, Income Tax Officer, Company Circle IV, Bombay v. Volkart Brothers and others (1971) 82 ITR 50 and CIT v. National Food Laboratories (1962) 65 Tax 257 ref.

Muhammad Ghani for Appellant. A. Karim Malik for the Revenue.

ORDER

NASEEM SIKANDAR, J.---The appellant claims to be an owner of Mitsubishi Pajero Jeep bearing Registration No.IDB-4727 which was taken into custody by the Customs Authorities on the ground that its frame/chassis number had been manipulated. After receiving a report from the Hyundai Central Motors, Lahore and Government Forensic Science Laboratory, Lahore the Customs Authorities through their order, dated 13-2-2001 directed its confiscation with an option to get it released by paying Rs. 5,000 as redemption fine in addition to custom dues and other taxes amounting to Rs.7 lacs approximately. The learned Tribunal maintained the order so recorded.

2. Subsequently, the appellant made an application under section 194-B(2) of the Customs Act, 1969 which was disposed of by the learned Tribunal on 20-3-2001 refusing to rectify their earlier order recorded in Customs Appeal No.850/LB of 2000, decided on 13-2-2001. The appellant claims that following questions of law have arisen out of the order of the Tribunal:---

(i)"Whether the provisions of section 194-B(2) of Customs Act, 1969 are parameteria with those of section 152, C.P.C., and thus the Appellate Tribunal can do no more except to correct clerical and arithmetical mistakes in its orders, judgments and decisions. It is submitted, with respect, that the two provisions when examined critically in juxtaposition, are not analogous to each other inasmuch as under section 152, C.P.C., Court can correct only `clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission' whereas section 194-B(2) of the Customs Act, 1969 authorizing the Appellate Tribunal `to rectify any mistake apparent from the record, amend any order passed by it', is all pervading. The scope of the expression `mistake apparent from the record as used in section 194-B(2) (ibid) is of much wider import than the expression `mistake apparent on the face of record'. Needless to add that section 194-B (2) is synonymous to section 22 of U.P. Sales Tax Act and section 35 of Income-tale Act of 1922. Be that as it may, the question is of first impression and requires proper adjudication by this Hon'ble Court?

(ii)Whether the Appellate Tribunal having come to definite conclu sion that its appellate decision rendered under section 194-B(1) of the Act as well as the order-in-original, based, as the same were, on misconception of factual position, was bereft of power and had no jurisdiction to correct a manifest wrong resulting in grave miscarriage of justice to the appellant, thereby depriving him of his valuable property except in the due process of law?

(iii)Whether a manifest injustice depriving, illegally and on mere suspicion, a person of his valuable property, can in law and under the Constitution of the Islamic Republic of Pakistan, be allowed to perpetuate merely on the, ground of lack of power to correct the same?

(iv)Whether the Appellate Tribunal, after having recorded unequivocally and unmistakably a finding that the appellant could not be deprived of his vehicle on the basis of the record available before it, would not have been justified to remedy the wrong in the exercise of its power under, section 194-B(2) of the Act, and its such decision would have bee perfectly valid and justified in view of the decisions of the superior Courts that an order, though not absolutely legal and with jurisdiction, can still be maintained if it has resulted in substantial justice, and has rectified a manifest wrong?

(v)Whether suspicions, howsoever, strong it may be, can take place of legal evidence, and whether in the absence of legal evidence proving, without doubt, that the vehicle of. the, appellant was smuggled one, the appellant could be deprived of his vehicle on mere `suspicion' and contradictory reports, though plethora of evidence was available with the Tribunal that the vehicle had been lawfully imported into Pakistan against an Import Permit duly issued by the Government of Pakistan, and after payment of Import Duty/Customs dues etc.?

(vi)Whether the Appellate Tribunal was not under obligation to have decided the question of the appellant being a bona fide purchaser, in good faith and for valuable consideration, on the basis of the public record?

(vii)Whether a State functionary, while performing administrative/ quasi-judicial as well as judicial functions, is not required to have the entire relevant law/case-law up his sleeves, and an improper/illegal decision cannot be justified on the sole ground that the appellant who had himself argued his case in the absence of his counsel being ill, could not present his case as fairplay as his counsel eventually had done during hearing of the proceedings under section 194-B(2) of the Customs Act, 1969?

(viii)Whether the Appellate Tribunal could discriminate the appellant from other persons whose vehicles were similarly seized but were ordered to be released despite similar, rather more formidable and convincing, reports of the Departmental Committee and Forensic Science Laboratory?

3. In support of the submissions that the Tribunal had wrongly refused to rectify its earlier order, learned counsel for the appellant relies upon in re: Maharana Mills (Private) Ltd. v. Income-tax Officer, Probandar (1959) 36 ITR 350 and re: T.S. Balaram Income Tax Ordinance, Company Circle IV, Bombay v. Volkart Brothers and others (197 I) 82 ITR 50.

4. After hearing the learned counsel for the parties we will agree that scope of provisions of section 194-B(2) is wider than that of the parallel provisions of section 35 of the Income-tax Act, 1922 and section 156. of the Income Tax Ordinance, 1979. Both the judgments relied upon by the learned counsel for the appellant sufficiently support his contention that such a mistake even under the aforesaid provisions of late Income Tax Act as well as Income Tax Ordinance could justifiably be resorted to rectify the mistake admittedly having crept in the order of the Tribunal. The Supreme Court of Pakistan while interpreting the provisions of section 35 of the late Income-tax Act, 1922 in re: CIT v. National Food Laboratories (1962) 65 Tax 257, also approved the exercise of power of rectification where a mistake was seen floating on the surface of the order and did not require investigation or further evidence.

5. In the present case while disposing of the rectification application the learned Tribunal in the operative part observed as under:--

"All the above facts make the prosecution case highly doubtful and had all these aspects been highlighted before us at the time of argument, which the appellant/applicant could not highlight in the absence of his ailing counsel, the decision could be different but now we cannot vary it under section 194-B(2) of the Customs Act, 1969 which confers on us the limited power of rectifying a mistake on the record while the matter in hand is something more than a `mistake' which only the Hon'ble High Court can rectify in its appellate or Constitutional jurisdiction."

6. Having concluded as above, nothing restrained the Tribunal from recalling their earlier order. The interest of justice ought to have served to undo a wrong for which apparently the appellant was not .at all at fault. Therefore, we will answer question No.2 in the negative. Rest I of the questions as framed being incidental need not be answered.

Resultantly, this appeal stands accepted and the rectification application filed by the appellant shall be deemed pending before the Tribunal to be decided in accordance with law.

Q.M.H./M.A.K./M-105/L.

Appeal allowed.