Messrs FORTE PAKISTAN (PVT.) LTD., KARACHI VS DIRECTOR-GENERAL INTELLIGENCE AND INVESTIGATION (CUSTOMS & EXCISE), KARACHI, 2006 PTD-KARACHI-HIGH-COURT-SINDH 978 (2005)

Customs Act (IV of 1969)---

----S.32---Misdeclaration envisaged under S.32 of Customs Act, 1969---Issuance of show-cause notice to three sister concerns of importer---Validity---Service of notice under S.32 of Customs Act, 1969 was condition precedent for initiation of proceedings for misdeclaration by importer---In absence of such notice, Customs Officials could not acquire jurisdiction for initiating proceedings for misdeclaration, misstatement or evasion of tax---In absence of service of such notice on importer, entire proceedings .initiated by Adjudication Officer and further super-structure thereon would become without jurisdiction, void and inoperative---High Court accepted appeal and struck off entire proceedings.

Sohail Muzaffar for Appellant.

Raja Muhammad Iqbal for Respondent No. 2.

Date of hearing: 13th October, 2005.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal is directed against the order dated 14-2-2003, passed by the learned Customs, Excise and Sales Tax Appellate Tribunal Bench-III, Karachi, in Customs Appeal No.244 of 2000/4472.

2. The appellant has proposed the following questions of law allegedly arising out of the order of Tribunal.

"(1). Whether the appellate Tribunal fails to consider the legal grounds urged before it and did not reply with the same resulting in miscarriage of justice?

(2) Whether the Honourable Appellate Tribunal fail to determine that any offence under section 32(2) is made out against the appellant?

(3) Whether the liability if any, of Forte Pakistan Inc. can be recovered from Forte Pakistan (Pvt.) Ltd., a company having a separate legal entity?

(4) Whether the record of the appellant was seized in violation of provisions of the Customs Act, 1969 and what will be the effect of non-issuance of Notice under section 171 of the Customs Act, 1969?

(5) Whether the respondent was competent to issue common show-cause notice jointly charging three persons for their individual act and whether the case is covered under section 239 Cr.P.C. or under Order 1, Rule 3, C.P.C.?"

3. Heard Mr. Sohail Muzaffar, learned counsel for the appellant and Mr. Raja Muhammad Igbal, learned counsel for the respondent No.2.

3-A. The learned counsel for the appellant has not pressed the Question No.1.

4. After hearing the learned Advocates for the parties and perusal of record, we are of the opinion that the question of law which actually arises out of the order of Tribunal has not been proposed by the learned counsel for the appellant.

5. A perusal of record shows that according to Order-in-Original, the importer is Messrs Forte Pakistan Inc. Islamabad, while the show-cause notice under section 32 has been issued to three alleged sister concerned namely, Messrs Forte Pakistan (Pvt.) Ltd., Messrs National Products Corporation and Messrs Hamad Traders. The question of law requiring consideration, which has escaped the notice of learned Members of the Tribunal also is as follows:

"Whether any proceedings can be initiated for any mis?declaration envisaged under section 32 of the Customs Act, 1969, without issuance of notice to the importer."

6. The appeal is therefore, admitted to hear the above question of law.

7. The point involved is short, therefore, we have heard the learned Advocates on the above point of law. Mr. Raja M. Iqbal has been confronted with the above admitted factual position and has been asked to assist the Court, if the service of notice under section 32 of the Customs Act, 1969, is a condition precedent for initiation of proceedings for misdeclaration by the importer. Mr. Raja M. Iqbal has frankly stated that the service of notice under section 32, on importer is a sine qua non, in the absence whereof the customs officials cannot acquire jurisdiction for initiating any proceedings for any misdeclaration, misstatement or evasion of tax.

8. The proposition of law is so obvious and clear that it does not require any further finding by us.

9. The question formulated above, is answered in negative, and it is held that in the absence of notice under section 32 on the importer the entire proceedings initiated by the Adjudicating Officer and further super-structure thereon including the order passed by the learned Tribunal, are without jurisdiction, void and inoperative. The entire proceedings are accordingly struck off. The appeal is allowed as above.

S.A.K./F-5/K????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.