ZIBTEC (PVT.) LTD through Director VS COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTOR, 2009 PTD-LAHORE-HIGH-COURT-LAHORE 246 (2008)

Customs Act (IV of 1969)---

----S. 195---Power of Boards or Collector to pass certain orders---Scope---Order passed by Principal Appraiser (Customs) can only be re-opened by Collector of Customs while exercising jurisdiction under 5.195, Customs Act, 1969---Collector of Customs can only revise the order, if any illegality or irregularity is committed by Principal Appraiser or its subordinate---Any such order by Deputy Collector of Customs against the order of Principal Appraiser was without jurisdiction, illegal and without lawful authority qua the rights of the importer.

Mian Abdul Ghaffar for Petitioner.

Miss Kausar Parveen for Respondents.

ORDER

ALI AKBAR QURESHI, J.---The petitioners are aggrieved of an order, dated 29-4-2008 passed by respondent No.2 whereby the petitioners have been burdened with the liability already adjudged by respondent No.3 and discharged by the petitioners.

2. The facts as stated in the petition are that the petitioner No. 1 imported 3 consignments of Energy Saving Lamps and for the clearance of the said consignments, engaged petitioner No.2. The Customs authorities after examining, assessing and receiving the payment of duties released the same. After some time, the petitioners received Demand Notices, dated 31-7-2007, 5-9-2007 and 6-8-2007 in terms of subsection (3) of section 32 of the Customs Act, 1969 whereby the petitioners were asked to pay the short levied amount against all the 3 consignments. The aforesaid show-cause notice was replied. The respondent No.3 did not accept the explanation given in the reply and passed three separate orders whereby the petitioner No.1 was held liable to pay short levied duty and taxes. As stated in the petition, the petitioners deposited the short levied duty as assessed by respondent No.3 and did not assail the orders passed by the respondent No.3 in appeal. The learned counsel appearing., on behalf of the petitioners submitted that the petitioners who already paid the short levied duty as assessed by respondent No.3 so the show-cause notice, dated 6-3-2008 subsequently issued by respondent No.2 in respect of the aforesaid 3 consignments under section 32(2) and (1) of the Customs Act, 1969 is totally against the law. Further contended that the respondent No.2 in any case has no authority in law to re-adjudge or re-open the assessment already adjudicated by respondent No.3. Further contended by the learned counsel for the petitioners that the order passed by respondent No.3 is appealable under section 193 of the Act ibid or revisable under section 195 of the Customs Act and in case of any irregularity if committed by respondent No.3 while adjudicating the assessment, the respondent No.1 only has the authority to re-open the matter. The learned counsel has referred section 195 of the Customs Act, the same is reproduced as under:-

195. Powers of Board or Collector....to pass certain orders.---The Board or the Collector of Customs may, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit.

3. Originally, the order was passed by respondent No.3 i.e. Principal Appraiser Custom so the order passed by the said functionaries, can only be re-opened by respondent No.1 while exercising the jurisdiction under section 195 of the Customs Act. Learned counsel appearing on behalf of the respondent-department submitted that the order passed by respondent No.2 is strictly in accordance with law. The learned counsel, when asked to refer any law or citation in support of their contention, the learned counsel could not cite any provisions of law which empowers the respondent No.2 to re-open the matter passed by respondent No.3. The language of 195 of the Act ibid is sufficient to understand that the Collector Customs can only revise the order, if any illegality or irregularity is committed by respondent No.3 or its subordinate and obviously the order passed by respondent No.2 is without jurisdiction.

4. In these circumstances, the order impugned herein, is declared illegal, unlawful and without lawful authority qua the rights of the petitioners. The respondent No.1, if so require, may exercise the jurisdiction to revise the order as required by law.

5. Resultantly, this petition is allowed with no order as to costs.

M.B.A./Z-42/LPetition allowed.