SHIRJEEL ENTERPRISES through Proprietor VS COLLECTOR OF CUSTOMS, APPRAISEMENT, KARACHI
2009 P T D 1181
[Karachi High Court]
Before Muhammad Athar Saeed and Salman Ansari, JJ
Messrs SHIRJEEL ENTERPRISES through Proprietor
Versus
COLLECTOR OF CUSTOMS, APPRAISEMENT, KARACHI
Spl. Customs Reference Application No.261 of 2008, decided on 01/04/2009.
Customs Act (IV of 1969)---
----S.194-C(3-A)-Appeal involving question of law-Decisions of Appeal by Member Technical of the Appellate Tribunal without providing opportunity of hearing to appellant---Validity---Member Technical of the Tribunal while sitting singly could not decide such matter---High Court remanded case to Tribunal for fixing same before appropriate Bench for its decision afresh within specified time after providing opportunity of hearing to both parties.
Collector of Customs Modern, Customs Collectorate of Paces, Karachi v. Muzammil Ahmed 2009 PTD 266 rel.
Junaid Ghaffar for Applicant.
Raja Muhammad Iqbal for Respondent.
ORDER
By this Special Customs Reference Application filed against the order, dated 31-5-2008 passed by the Member Technical-II Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-II Tribunal in Customs Appeal No. K-338/2004 the. following questions of law said to have been arisen from that order have been proposed for the opinion of this Court:---
(a) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in hearing/deciding the case involving an amount of more than 10 Million rupees in utter violation of the provisions of section 194-C(4) of the Customs Act, 1969?
(b) Whether in the facts and circumstances of the case the Customs Tribunal was justified in upholding the recovery of duty and taxes and imposition of penalty against the applicant despite the fact that the consignment was neither imported nor owned by the appellant?
(c) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in holding that action taken against the applicant by the respondent was justifiable since proceedings against the actual culprits were also initiated despite the fact that appellant's name and title of import was being misused?
(d) Whether in the facts and circumstances of the case the Customs Tribunal was justified in upholding the Order-in-Original passed on the basis of an earlier order without discussing the reasons and passing of a speaking order as required under section 24A of the General Clauses Act?
(e) Whether in the facts and circumstances of the case the Customs Tribunal was justified in upholding the Order-in-Original against the applicant without any adverse or incriminating evidence being on record?
(f) Whether in the facts and circumstances of the case the Customs Tribunal has erred in law by not holding that adjudicating authority (Additional Collector of Customs Adjudication) could not abdicate its judicial powers by mechanically relying on the Order-in-Original passed by the Collector of Customs (Adjudication)?
(g) Whether in the facts and circumstances of the case the Customs Tribunal has erred in not holding that the short recovery of customs duty can only be initiated in terms of section 32 of the Customs Act; 1969 against a person liable to pay such duties and not otherwise?
(h) Whether in the facts and circumstances of the case the Customs Tribunal has erred in upholding the Order-in-Original against the applicant despite the fact that the respondents have exonerated the applicant in criminal proceedings pending before the Special Judge Customs and Taxation?
At the very outset, learned counsel has referred the order, dated 16-12-2008 of this Court passed in Special Customs Reference Application No.157 of 2008 wherein we had disposed the appeal by remanding the same to Tribunal to dispose of by giving the opportunity to both the parties to argue the matter.
Learned counsel for appellant submits that this appeal has stemmed from the same Order-in-Original and is based on similar facts and circumstances and he was also not provided an opportunity to personally argue the matter before the Tribunal. This position could not be controverted by the learned counsel for respondent.
We have also noted that this order passed by the Member (Technical) and matter is, therefore, apparently covered by the judgment reported in 2009 PTD 266 (Collector of Customs Modern Customs Collectorate of Paces, Karachi v. Muzammil Ahmed).
We will therefore set aside the, impugned order and remand the case back to the Tribunal with direction to fix the same before appropriate Bench and tag it along with the appeal in Special Customs Reference Application as mentioned above and dispose of the same after giving full opportunity to both the learned counsel to argue the matter before it and dispose of the same preferably within three months.
S.A.K./S-56/KCase remanded.