Messrs SHAHEEN TRADING CORPORATION VS ASSISTANT COLLECTOR OF CUSTOMS (GROUP-III), 2006 PTD-LAHORE-HIGH-COURT-LAHORE 395 (2020)

Customs Act (IV of 1969)---

---Ss. 81(2) & 156(1)(14)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Assistant Collector, while finalizing the assessment under S.81(2), Customs Act, 1969 had imposed penalty under S.156(1)(14) of the said Act---Validity---Such order being without jurisdiction was void and of no legal effect---High Court directed that if there was any demand to be raised by the Department against the petitioner, same may be resorted to through lawful exercise of authority by the competent officer.

Abdul Zahir and another v. Director General Pakistan Coast Guards and 4 others PLD 1990 Kar. 412 ref.

Mian Abdul Ghaffar for Petitioner.

Dr. Sohail Akhtar for Respondents.

ORDER

UMAR ATA BANDIAL, J.---Notice was issued to the respondents in this petition by order dated 11-7-2005 which in the following terms:

"Learned counsel submits that his imported goods in respect of which provisional assessment had been made under section 81 of the Customs Act, 1969 have now by order dated 7-6-2005 been adjudged to have been cleared by misdeclaration which verdict falls within the purview of section 32 of the Customs Act, 1969. The impugned order, is however, illegal and without jurisdiction on the following three grounds. Firstly, that the extension granted by the Collector under proviso to section 81(2) of the Act fails to record reasons of "exceptional circumstances" that is statutory requisite for such extension. He relies upon the case of Abdul Zahir and another v. Director General Pakistan Coast Guards and 4 others PLD 1990 Kar. 412. Secondly, that action under section 32 of the said Act by the respondents must be preceded of a show-cause notice which is absent in this case. Thirdly, in any event, respondents lack jurisdiction to take cognizance of the matter wirier section 32 of the Act because under S.R.O. 371(I)/02 dated 15-6-2003 and S.R.O. 480(I)/04 dated 15-6-2004 an officer from Collectorate of Adjudication possesses alone such power. The impugned action is thus alleged to be illegal on grounds of jurisdiction and for default of statutory mandate. Learned legal advisor of the respondents on Court's call accepts notice. He shall file comments on this petition within a period of two weeks. Re-list for a date in the week commencing from 12-9-2005."

2. In respect of the contentions raised by the learned counsel for the petitioner, the respondent No.4 Collector Customs filed a report in this Court, the relevant portion whereof for the present purposes, is as follows:--

"(b) The concerned Assistant Collector, while finalizing the assessment under section 81(2) of the Customs Act, 1969, imposed penalty under clause (14) of section 156(1) of the Customs Act, 1969 which amounted to exceeding her powers."

3. Learned counsel for the respondents submits that record in relation to only one bill of entry mentioned in paragraph 2 of the petition has been attached to the petition. Therefore, relief to be granted to the petitioner should be limited to claim only in respect of one bill of entry. A perusal of the impugned order, however, shows that it is passed in relation to 13 bills of entries covering of goods imported by the petitioner. The impugned order is challenged not on the facts disclosed in the respective bills of entries but on grounds of the absence of legal authority to pass the same. This incapacity has been admitted by the Collector Customs in his aforenoted written statement before this Court. It goes without saying such incompetence pervades the impugned order as a whole and not with reference to anyone of the bills of entries covered by it. As the dispute does not concern facts there is no reason to be looking to the record of the imported goods in each bill of entry. The objection raised by the respondents in the context of the present controversy is therefore, is misconceived.

4. In view of the foregoing statement the impugned order dated 27-6-2005, passed by the respondent No.1, is admitted to be in excess of legal authority of its author. Being in excess of authority this order is passed without jurisdiction and is therefore, void and of no legal effect. If there is any demand to be raised by the respondents against the petitioner, the same may be resorted through lawful exercise of authority by the competent officer. The petition is accordingly allowed in the foregoing terms.

M.B.A./S-439/LPetition allowed.