COLLECTOR OF CUSTOMS (PREVENTIVE), MCC OF PREVENTIVE, KARACHI VS Shaikh NASIR ALI, 2010 PTD-KARACHI-HIGH-COURT-SINDH 1183 (2010)

(a) Customs Act (IV of 1969)---

----Ss.16, 32 & 196---Reference application---Delay of 180 days, condonation of---Release of gold weighing 3400 grams by Appellate Tribunal---Revenue's plea that Tribunal had released such gold in violation of statutory provision, thus, impugned order was illegal and void, whereagainst no limitation would run---Validity---Tribunal before passing impugned order had gone through record and come to conclusion that respondent had not tried to conceal such gold on his arrival at Pakistani port---Tribunal in impugned order had observed that respondent had neither infringed any law nor transgressed any circular/scheme issued in such regard---Impugned order could not be termed as a void order---After expiry of limitation period, vested rights had been created in favour of respondent, which could not be taken away---High Court dismissed reference application in limine for being hopelessly barred by limitation.

2001 SCMR 19; 2003 SCMR 83; Civil Appeal No. 126 of 2005; 2003 PTD 60; 2002 MLD 296; PLD 2005 SC 461; 2003 PTD 456; 2001 SCMR 827; PLD 1975 SC 331; 2002 PTD 83; PLD 1997 SC 351; 2008 SCMR 240; 2004 CLC 1482; Federation of Pakistan v. Metropolitan Steel Corporation 2002 PTD 87; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and PTCL 2008 CL 173 ref.

PTCL 2008 CL 173; 2007 PSC 169 and 2002 SCMR 1903 rel.

(b) Void order---

----Limitation---No limitation would run against a void order---Principles stated.

It is only a void order against which the limitation does not run, but in the cases where the orders passed by an authority is neither void nor contrary to the provisions of the law or sustainable in the law, then under such circumstances, the same are very much hit by laches and if no appeal is filed against such an order with the stipulated period of time, the same gets time-barred, barring exceptional circumstances where delay of each day is to be explained with sufficient cause to the satisfaction of the court. No limitation runs against a void order, and there is a distinction between a void and voidable order and the issue of limitation is applied only to void order. No doubt, a void order is a nullity in the law, when the same has been passed in flagrant violation of a provision of the law or the same lacks jurisdiction. Indeed a broadened scope of the expression "void order" might upset the entire judicial system and particularly the provision for invoking appellate remedies within the time prescribed by statutes of limitation as every unsuccessful litigant could sleep over a court order, which in his opinion is void or defy the same with impunity in the hope that he could ultimately plead that the order was void and non-existent in law, which could be ignored.

PLD 1975 SC 331; 2004 CLC 1482; Federation of Pakistan v. Metropolitan Steel Corporation 2002 PTD 87 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

(c) Limitation---

----Vested rights created in favour of opposite side due to expiry of limitation period could not be taken away.

2007 PTD 1418; 2007 PSC 169 and 2002 SCMR 1903 rel.

Raja Muhammad Iqbal for Applicant.

Khalid Javed Khan for Respondent.

ORDER

IRFAN SAADAT KHAN, J.---Through the instant Special Customs Reference Application (RA) the following questions of law have been referred to this Court;

(1) Whether on facts and circumstances of the case the learned Tribunal erred not to hold that the case falls under sections 2(s), 16 & 32 of the Customs Act, 1969 read with violations of S.R.O. 266(I)/2001 dated 7-5-2001 read with section 3 of the Imports and Exports (Control) Act, 1950?

(2) Whether on facts and circumstances of the case the learned Tribunal not considered the act of respondent of misstatement which attracts the provisions of section 32 of the Custom Act, 1969 punishable under clauses 8, 9, 14 and 77 of subsection (1) of section 156 ibid?

(3) Whether on facts and circumstances of the case the learned Tribunal not appreciated that the preliminary adjudicating proceeding were held under provisions of section 180 read with section 179 of the Customs Act, 1969?

2. Mr. Raja Muhammad Iqbal, Advocate appeared on behalf of the Department and submitted that he first would like to argue this R.A. in respect of the application filed by him under the provisions of section 5 of the Limitation Act, 1908, as admittedly the present R.A is barred by more than 180 days. As per the learned counsel, the Tribunal has passed a void order and no limitation runs against such order. In support of his contention the learned counsel has relied on the cases reported as 2001 SCMR 19, 2003 SCMR 83 and an unreported judgment in Civil Appeal No.126 of 2005. As per the learned counsel the respondent had attempted to smuggle gold jewelry in Pakistan by making untrue statement before the Custom Authorities and thus the Tribunal had no jurisdiction to order release these banned items, without considering the relevant provisions of the law and the various circulars issued in this regard. To support his contention, he has relied upon the cases reported as 2003 PTD 60 and 2002 MLD 296.

3. The learned counsel submitted that the Tribunal was not justified in ordering release of the confiscated gold, which was not brought by the respondent in Pakistan through proper documentation of the said goods. He further submitted that the gold weighing 3400 grams was incorrectly being ordered to be released by the Tribunal which may not only be confiscated but the fine leviable on the said illegal import of the said gold be also imposed. In support of his contention the learned counsel has relied upon the decisions PLD 2005 SC 461, 2003 PTD 456 and 2001 SCMR 827.

4. Mr. Khalid Javed Khan, Advocate appeared for the respondent and submitted that the present R.A. is hopelessly time-barred by more than 180 days and no sufficient cause for a such long delay has been given by the Department. The learned counsel submitted that no preferential treatment could be given to the Department in this regard. He submitted that due to sheer negligence on the part of the departmental authorities the present R.A. was not filed in due time and due to non-filing of the said R.A. a vested right has been created in favour of the respondent, hence the present R.A. may accordingly be dismissed in limine.

5. The learned counsel submitted that the Department never took the issue of filing present R.A. seriously and allowed the matter to get time-barred, had the Department been vigilant in this regard they should have filed the same within the stipulated time. Learned counsel submitted that the reasons given for condonation of the delay in filing the present R.A. are totally baseless and frivolous and smacks of arbitrariness on the part of the Department. The learned counsel further submitted that the Tribunal had not passed any void order as according to him the Tribunal after going through the entire record and the facts of the case has passed an elaborate, erudite and exhaustive order after discussing each and every aspect of the case. Learned counsel thereafter drew the distinction between a void and a voidable order and submitted that only those orders are to be considered void which are passed blatantly without jurisdiction, whereas in the instant R.A. the Department had failed to point out that the order passed by the Tribunal was in any manner without jurisdiction. In support of his contention the learned counsel relied upon the decisions reported as PLD 1975 SC 331, 2002 PTD 83, PLD 1997 SC 351 and 2008 SCMR 240.

6. Apropos the merits of the case is concerned, the learned counsel has supported the order passed by the Tribunal and submitted that the Tribunal has passed the order after minutely examining each and every aspect of the case so far-as factual controversy is concerned. The learned counsel further submitted that the Tribunal has passed an exhaustive order whereby examining every nook of the case and thereafter came to the conclusion that the respondent has neither violated the provisions of the Entrustment Scheme nor that of any provision of the Customs Act or that of any circular issued in this regard. In the end the learned counsel prayed for the dismissal of the present R.A. being without any basis, uncalled for and not sustainable in the law.

7. We have heard both the learned counsel and have also perused the record of the case.

8. Briefly stated that the respondent has been carrying on the business of manufacturing Jewelry under the name and style of Khursheed Art, situated at Tariq Road, Karachi. The respondent is duly registered with Export Promotion Bureau as Exporter and is also a member of All Pakistan Jem Merchant and Jewelers Association. That on 14.1.2005 the respondent arrived in Pakistan and was carrying 25400 grams of gold. Out of this quantity the respondent possessed permission letter from Expert Promotion Bureau, in respect of gold weighing 22000 grams. However as per the Customs Authorities a quantity of 3400 grams of gold was recovered from his inner pockets and socks; whereas according to the respondent he immediately after his arrival approached the Customs counter and declared both types of gold i.e. the one of which advance information had already been given by him to the Customs Department which was 22000 grams of gold and the one of which no information was given i.e. 3400 grams of gold. According to the Department the respondent had attempted to sneak in Pakistan the undeclared gold and was rightly charged with offence that he had tried to smuggle in Pakistan 3400 grams of gold of which he was not having the valid documentation. The Department thereafter lodged FIR against him and also issued a show-cause notice dated 14-3-2005 for not declaring the said quantity of gold. The gold thereafter was confiscated by Customs Authorities and a fine of Rs.2.7 Million was imposed on the respondent. However the gold weighing 22000 grams waf, ordered to be released by the Additional Collector and the matter pertaining to the release of this 22000 grams of gold is pending adjudication before the Tribunal. Consequent upon the seizure of 3400 grams of gold the respondent filed as appeal before the Additional Collector who upheld the show-cause notice. Thereafter an appeal was preferred by the respondent before the Tribunal which vide its order dated 22-4-2008, allowed the same by observing that the impugned 3400 grams of gold jewelry was brought by the respondent under the Entrustment Scheme as defined in sub-para.4 of para.5 of S.R.O. 266(I)/2001, dated 7-5-2001. The Tribunal thereafter ordered release of the said jewelry after vacating the show-cause notice issued by the Additional Collector. The department thereafter has filed the present R.A. before this Court.

9. Before dealing with the issue that whether the respondent had imported the impugned jewelry under the valid permission of law or not, we deem it expedient to first dilate upon the preliminary issue that whether under the present circumstances the Tribunal has passed a void order or not and whether any limitation would run against such order or not. The first case on which the learned counsel for department has relied upon is the decision of Government of Baluchistan through Secretary v. Ghulam Muhammad and 4 others (2001 SCMR 19) wherein the honourable Supreme Court while holding that Government Agency could not be given preferential treatment in view of peculiar circumstances of the case found impugned order to be void and illegal and condoned the delay in the interest of justice. In the said decision the apex Court observed that the learned Judge of the High Court granted the relief which was not even prayed for. The honourable apex Court observed that the High Court travelled beyond its jurisdiction by granting relief to the private respondent and passed an order which is not legally sustainable under the law. The honourable Court thereafter remanded the case back to the High Court Baluchistan for its final disposal. It may however be noted that in the present case, the Tribunal has firstly passed an exhaustive and well-reasoned order and such order could not in any manner be termed as a void order and secondly the Tribunal's order is based upon sound reasoning, wherein the Tribunal has not only thrashed out the relevant law in this regard but has also dilated upon the facts of the case in an unimpeachable manner, which will be discussed in detail in later part of this order. Hence the facts of above reported decision are quite distinguishable from the facts pertaining to the present R.A.

10. The next case relied upon by the Department is of Muhammad Bashir and others v. Province of Punjab and others (2003 SCMR 83). In the instant case revision was filed which was late by 26 days. The honourable High Court condoned the delay and the honourable apex Court affirmed the order of the High Court by observing that the Court did not exercise the discretion illegally or arbitrarily. This case also is not on all fours with that of the present R.A.

11. In the third decision Civil Appeal No. 126 of 2005 the honourable Supreme Court remanded the matter back to the Lahore High Court for fresh decision as the Lahore High Court dismissed the petition, which was barred by 142 days. The honourable Supreme Court opined that an important question with regard to interpretation is involved therefore in the interest of justice remanded the matter for fresh adjudication to the honourable High Court. Whereas in the instant R.A. in our opinion there hardly arises a question of interpretation of any provision of law. The entire controversy revolves around the fact that whether the respondent had declared gold weighing 3400 grams in accordance with law or not whereas the Tribunal after going through the record and thrashing out the factual controversy came to the conclusion that the respondent did not try to conceal the said gold on his arrival at the Quaid-e-Azam International Airport.

12. The first case on which the learned Counsel appearing on behalf of the respondent relied upon is Chief Settlement Commission v. Muhammad Fazil Khan and others (PLD 1975 SC 331) wherein the Hon'ble Supreme Court of Pakistan held as under:--

"An order is to be treated as void only when it is made by a Court, Tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount "usurpation of power unwarranted by law", and accordingly it would be nullity."

13. In the instant R.A. however nothing has been said that the learned Tribunal was not having the valid jurisdiction to decide the issue entrusted before it but the learned counsel appearing on behalf of the department has only asserted that as the Tribunal has ordered release of the gold weighing 3400 grams hence in his opinion the Tribunal has passed a void order. The above cited decision has also been followed in 2004 CLC 1482.

14. The next case relied upon by the learned counsel is Federation of Pakistan v. Metropolitan Steel Corporation (2002 PTD 87) wherein the Division Bench of this Court observed as under:

"Be that as it may, a survey of the precedents clearly reveals that their lordships have always maintained a distinction between the void and illegal or a voidable order and statutes of limitation have been held applicable only to the first type of order.

15. The next case relied upon by the learned counsel is Province of Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) wherein the Hon'ble Court held that `void order is not always to be struck down regardless of the consequences. Void order to be struck down provided there is no statue or/principle of law which would make it unjust or inequitable to struck down the void order." In the instant R.A. though the learned counsel for the department has submitted that the Tribunal has not considered various provisions of the law and certain circulars but has failed to cite before us any provision of the law which has been violated whereas the learned Tribunal has categorically observed in its order that the respondent has neither infringed any law nor has transgressed any circular/scheme issued in this regard.

16. The next case relied upon by the learned counsel is Izhar Alam Farooqi, Advocate v. Shaikh Abdul Sattar Lassi and others (2008 SCMR 240) wherein the Hon'ble Supreme Court of Pakistan observed that "erroneous order passed by Court of competent jurisdiction would not render same without jurisdiction". The learned counsel cited this decision on the premise that even if the decision of the Tribunal is held to be erroneous the same cannot be termed as without jurisdiction or void and hence would be hit by laches.

17. In addition to the above decisions we have laid our hands on the decision Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) wherein the Hon'ble Supreme Court has held as under;-

"It is well-settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law."

18. Perusal of the above decisions would reveal that it is only a void order against which the limitation does not run but in the cases where the orders passed by an authority is neither void nor contrary to the provisions of the law or sustainable in the law then under such circumstances the same are very much hit by laches and if no appeal is filed against such an order within the stipulated period of time then the same gets time-barred, barring exceptional circumstances where delay of each day is explained with sufficient cause to the satisfaction of the court. Apart from above cited judgments there are several other pronouncements wherein the superior courts have held that no limitation runs against a void order however it is equally important to consider whether the impugned judgment could be characterized as void or a nullity in the law, so as to attract the application of the above principle. The superior courts have always drawn a distinction between a void and voidable order and the issue of limitation is applied only to void order. No double a void order is a nullity in the law when the same has been passed in flagrant violation of a provision of the law or the same lacks jurisdiction, indeed a broadened scope of the expression "void order" might upset the entire judicial system and particularly the provision for invoking appellate remedies within the time prescribed by statues of limitation as every unsuccessful litigant could sleep over a Court order which in his opinion is void or defy the same with impunity in the hope that he could ultimately plead that the order was void and non-existent in law which could be ignored. The learned counsel appearing for the department has nowhere attacked the jurisdiction of the Tribunal but has only submitted that as the Tribunal has released the gold in violation of certain provision of the law which has rendered the order of the Tribunal as illegal and void and in his opinion it has to be treated as a nullity in law.

19. Hence in the light of the above observations, we would like to observe that the Tribunal's order could by no means be termed as a void order. It is trite law that after expiry of the limitation period vested rights are created in favour of the opposite side which cannot be taken away and the other side cannot be penalized in this regard. Reference in this regard may be made to 2007 PTD 1418, 2007 PSC 169 and 2002 SCMR 1903.

20. Hence as the department has failed to demonstrate and substantiate that the Tribunal has passed a void order against which no limitation runs, we without going in to the merits of case dismiss this R.A. in limine being hopelessly barred by limitation.

S.A.K./C-2/KReference application dismissed.