Messrs S. ESSA, KARACHI VS FEDERATION OF PAKISTAN, 2006 PTD-KARACHI-HIGH-COURT-SINDH 639 (2005)

Customs Act (IV of 1969)---

----Ss.193 & 195-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal to Collector---Limitation---Filing of appeal on 20-8-1995 against order-in-original dated 24-4-1995---Petitioner's plea was that copy of order was supplied late---Revenue's plea was that copy of order was supplied on 10-4-1995---Order of Collector dismissing appeal as time-barred was upheld by Central Board of Revenue in revision---Validity---Order-in-original dated 24-4-1995 could not be served upon petitioner on 10-4-1995---Both such forums had committed serious error in exercise of jurisdiction vested in them and had passed erroneous order apparent on the face of record---High Court accepted constitutional petition, set aside impugned orders and remanded appeal to Collector for its decision on merits.

Junaid Ghaffar for Petitioner.

Syed Tariq Ali, Federal Counsel for Respondents. Nos.1 and 2.

Raja Muhammad Iqbal for Respondents Nos.3 and 4.

Date of hearing: 16th November, 2005.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The grievance of the petitioner is that respondents Nos.3 and 2 have not applied their minds while passing, order in appeal, dated 30-11-1995 and order in revision, dated 29-5-1996 and have thereby failed to exercise the jurisdiction vested in them.

Briefly stated the relevant facts are that the petitioner filed appeal before the Collector of Customs Appeals (Appraisement and Export) against the orders-in-original bearing No.1653/95-B.G. Exp. Dated 24-4-1995, 301/95-B.G. Exp. dated 18-3-1995 and 454/95-B.G. Exp. dated 16-3-1995 on 20th August, 1995.

It was contended before respondent No.3, the Collector of Customs (Appeals) that the copies of the orders were supplied late and therefore the appeals preferred were within time. Respondent No.3 called for comments from the Collectorate of Customs (Exports) Report was submitted as follows:---

"The order-in-original for recovery of the duty drawback paid against Annexure `B' were issued on the basis of data/information available in Computer. It was, however, subsequently observed that in some cases the addresses of the exporters concerned were not correctly indicated due to the facts that incorrect NTN/addresses were fed in computer at the very initial stage i.e. at the time of filing of bill of export/lodging of the duty drawback claim. Resultantly the orders-in-original were erroneously dispatched at incorrect postal addresses. The same has happened in the instant case. However, the practice has now been checked and feeding of correct NTN/addresses is ensured to avoid such lapses. The copy of the subject order-in-original was received on 10-4-1995 by the representative of the exporters from this office. In view of the above, it is proposed that time for filing of appeal in this case may be computed from the aforesaid date."

On the basis of above report, respondent No. 3 held that the copy of order-in-original bearing No.1653/95 was supplied to the petitioner on 10-4-1995 and therefore the appeal filed on 20-8-1995 was barred by time. It was directed that the said order shall apply to the other two appeals, preferred against the two other orders in original referred to above.

Being aggrieved, the petitioner filed revision before the Member, Central Board of Revenue/Ex-officio Additional Secretary, Government of Pakistan, Ministry of Finance who vide order dated 29-5-1996 upheld the order of Collector Appeals and rejected the Revision Application.

The learned counsel for the petitioner has pointed out that both the two officers sitting in Appeal and Revision have decided the matters .in mechanical manner without application of mind which is indicated from the fact that the order-in-original bearing No.1653/95 was passed on 24-4-1995 while the report was submitted that it was served on 10-4-1995 which is an impossibility.

The learned Federal Counsel, appearing for respondents Nos.1 and 2 and learned counsel for respondents Nos.3 and 4 have though supported the impugned orders but they are not able to rebut the contention that the order-in-original bearing No. 1653/1995 is dated 24-4-1995 and therefore, it cannot be served upon the petitioner on 10-4-1995.

In the above circumstances, we are of the opinion that respondents Nos.2 and 3 have committed serious error in exercise of the jurisdiction vested in them and have passed erroneous orders which is apparent on the face of record. The orders passed by the respondents Nos.2 and 3 are, therefore, set aside and the appeal preferred by the petitioner dated 20-8-1995 is remanded to the Collector of Customs (Appeals-I), 81-C, Block No.6, PECHS, Karachi with the direction to hear the appeals on merits after providing opportunity to both the parties. It is a very old matter and therefore the Collector of Customs (Appeals-I), Karachi is directed to dispose of the appeal on merits by a speaking order within three months of receiving the copy of this judgment. The petition is allowed, accordingly.

S.A.K./S-5/KPetition accepted.