PAKISTAN STATE OIL COMPANY LIMITED VS COLLECTOR OF CUSTOMS, 2005 PTD-KARACHI-HIGH-COURT-SINDH 709 (2004)

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.194‑B‑‑‑Sales Tax Act (VII of 1990), S.46‑‑‑Order of the Appellate Tribunal‑‑‑No provision of law empowers the Appellate Tribunal for passing short order in the first instance and recording its reasons later on.

In the present case, order of the Tribunal nowhere mentioned that it was a short order which was to be followed by separate reasons to be recorded by the Tribunal later on. The practice followed by the Tribunal even otherwise did not seem to be warranted by law as there was no such provision available in the Customs Act/Sales Tax Act, which empowered the Tribunal performing judicial work to decide the fate of an appeal by passing short order in the first instance and recording its reasons later on. Unless such power is expressly conferred by statute, which was lacking in the present case, it could not be exercised by any Tribunal or Court, specially when dealing with its judicial work.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.194‑A, 194‑B, 194‑C, 196-H & 224‑‑‑Appeal to Appellate Tribunal‑‑‑ Limitation‑ ‑‑Penal provision of law like law relating to limitation for filing of appeal, depriving a party from seeking adjudication of its case on merits after a particular period, are to be construed strictly and same cannot be invoked on mere presumptions or assumptions‑‑‑If two equally plausible conclusions are possible then the one favourable to the subject is to be preferred, so that case may be decided on merits.

Taha Ali for Appellants.

Raja Muhammad Iqbal along with Muhammad Rais, S.P.O. for Respondents.

Date of hearing: 21st December, 2004.

ORDER

ANWAR ZAHEER JAMALI, J. ‑‑‑Above numbered 'sixty three identical appeals have been preferred by the appellants Messrs Pakistan State Oil Company Limited to impugn common order, dated 28‑1‑2003 passed by the Customs. Excise and Sales Tax Appellate Tribunal Bench‑I Karachi, whereby Special Customs Appeals Nos. 468 to 530 of 2002 were dismissed, being time‑barred by seven days.

2. With reference to the only controversy as to limitation involved in these appeals, in the memo. of appeals, it has been stated by the appellants that all the sixty three appeals preferred , by them before the Tribunal on 11‑4‑2002 were within time as the copies of impugned orders,, though passed by the Collector of Customs, Excise and Sales Tax (Adjudication‑II), Karachi on 2‑2‑2002, were served on them on 14‑2‑2002. Further case of the appellants is that no opportunity was afforded to them to satisfy the Tribunal with reference to such objection raised by the office: It has also been stated by the appellants that on the basis of retaining photostat copies of some entries in the dispatch register and copies of some irrelevant postal receipts, without even examining any witness to prove such documents, or affording any chance of rebuttal to the appellants, it was illegally presumed by the Tribunal that the copies of all the orders‑in‑original impugned before the Tribunal were received by the appellants much earlier to 14‑2‑2004, the date of receipt of copies, as disclosed by the appellants in their appeals.

3. In order to examine this aspect of the cases we have summoned and perused the R & Ps of all the appeals, which show that initially these appeals were dismissed by the Tribunal by its two lines' order, dated 28‑1‑2003, which reads as under:‑‑

"The appeal is badly barred by time by seven days' time and therefore, we dismiss the same being barred by limitation."

4. It is pertinent to note that in the above reproduced order it was nowhere mentioned by the Tribunal that it was a short order which was to be followed by separate reasons to be recorded by the Tribunal later on. The practice followed by the Tribunal even otherwise does not seem to lie warranted by law as there is no such provision available in the Customs Act/Sales Tax Act, which empower/enables the Tribunal performing judicial work to decide the fate of an appeal by passing short order in the first instance and recording its reasons later on. In our view unless such power is expressly conferred by statute, which seems to be; lacking in the instant case, it cannot be exercised by any Tribunal or Court, specially when dealing with its judicial work.

5. Reverting to the facts, we are in agreement with the submission of the learned counsel for appellants that there was no sufficient and satisfactory material available before the Tribunal to discard the statement of the appellants that the copies of impugned orders were received by them on 14‑2‑2004. Mere production of photostat copies of some entries from the dispatch register does not conclusively prove that the copies were actually dispatched on that day and were delivered to the appellants on the same day or the next day, as observed by the Tribunal in its impugned order. The four postal receipts taken on record by the Tribunal and relied by it, without affording any opportunity of rebuttal to the appellants, also show that except postal receipt No. 557 the other three receipts Nos. 553, 554 and 558 were not addressed to the appellants and the round seal of the Post Office affixed over it contained its date as 2‑3‑2002. Perusal of impugned order reveals that it is based on surmises and conjectures and while passing such order the Tribunal even did not bother to notice that it was never the case of the appellants that the appeals preferred by them were time‑barred. Thus, the question of moving any application for condonation of delay, which remedy was otherwise available to the appellants under section 224 of the Customs Act, did not arise. The observations of the Tribunal, justifying rejection of affidavit submitted before it by some officer/employee of the appellants company, explaining relevant facts about filing of appeals in, time, on the grounds that the affidavit was filed by an Accounts Officer of the appellants who was neither a person well‑conversant with the facts of the case nor a law officer and that it was halfheartedly sworn affidavit of an incompetent person, not only seem to be presumptive and fanciful but also reflect pre‑determined approach of the Tribunal that these appeals were to be dismissed on the point of limitation: It is elementary principle of law that the penal provisions of law, like law relating to limitation for filing of appeal. depriving a party from seeking adjudica tion of its case on merits after a particular period, are to be construed strictly and same cannot be invoked on mere presumption or assumption as has been done by the Tribunal in the instant case. Further, if two equally plausible conclusions are possible then the one favourable to the subject is to be preferred, so that case may be decided on merits.

6. For the foregoing reasons all the above numbered appeals are allowed impugned orders, dated 28‑1‑2003 are set aside. The cases are remanded to the Tribunal i.e. Customs Excise and Sales Tax Appellate Tribunal Karachi, for fresh disposal of appeals in accordance with law, within three months. It is further ordered that these appeals may not be placed before the same Bench or a Bench of which any of the two members, who were party to the impugned order, is a member. The R & Ps summoned from the Tribunal be returned immediately.

M. B. A./P‑21/KOrder accordingly.