KHATRI BROTHERS VS FEDERATION OF PAKISTAN through Secretary, Revenue Division and Chairman Federal Board of Revenue, Islamabad, 2010 PTD-KARACHI-HIGH-COURT-SINDH 1225 (2009)

Customs Act (IV of 1969)---

---Ss. 193, 194-A & 195---Customs Rules, 2001, R.103---Civil Procedure Code (V of 1908), Ss.47(1) & 114---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal to Appellate Tribunal under S.194-A, Customs Act, 1969---Scope---Petitioner filed review application against the order passed by Single Bench of the High Court on the ground that counsel for petitioner had stated before the High Court that he could have availed the remedy of appeal before the Tribunal and the Single, Bench on the admission of the petitioner dismissed the constitutional petition being not maintainable--Contention of the petitioner was that he had wrongly submitted that the remedy of filing an appeal under S.194-A of the Customs Act, 1969 against the impugned order was available to him before the Tribunal---Validity---Order passed by the Collector (Appraisement) or any other Collector in accordance with powers vested to him under the proviso to sub-rule 2 of R.103 of the Customs Rules, 2001, was not an order passed either by Collector (Appeals) under S.193 nor an order passed by the Board or Collector of Customs under S.195 and therefore no appeal could be filed against such order before the Tribunal under S.194-A of the Customs Act, 1969---Single Bench had passed order on mistaken admission made by counsel for the petitioner---High Court allowed the review application and recalled the order passed by Single Bench and held that constitutional petition should be considered to be pending before Single Bench.

Muhammad Yousuf Alvi for the Petitioner.

Raja Muhammad Iqbal for Respondent.

ORDER

MUHAMMAD ATHAR SAEED, J.---This application has been filed for review of order of this Court dated 12-8-2009 by which we had dismissed the petition because on that date the learned counsel for petitioner had stated that he could have availed the remedy of appeal before the Tribunal and since it was admitted that remedy of appeal was available to the petitioner, therefore, without exhausting this remedy, this petition was held not to be maintainable and as such it was dismissed. Hence this review application.

2. We have heard Mr. Muhammad Yousuf Alvi learned counsel for the petitioner/applicant and Mr. Raja Muhammad Iqbal learned counsel for the respondent.

3. The learned counsel for the petitioner has submitted that on the date of hearing he had wrongly submitted that the remedy of filing an appeal against the impugned order was available to him before the Tribunal and on that basis this Court had dismissed the petition. He submitted that initially an order-in-original dated 2-11-2996 was passed by the Deputy Commissioner of Customs who was the licensing authority vide which he had levied penalty of Rs.500,000.00 (rupees five hundred thousand only) for the restoration of the customs house agent license till the finalization of the case by the Customs Court. He further submitted that since this order was passed under rule 103 of the Customs Rules, 2001 he had filed an appeal in accordance with the proviso to sub-rule (2) of such Rule before the Collector of Customs Appraisement within specified period and the Collector of Customs Appraisement vide the impugned order dated 27-12-2007 upheld the order in original passed by the licensing authority and rejected the appeal. The learned counsel submitted that he had no remedy of appeal against the impugned order as no appeal could have been filed against the above order before the Customs Central Excise and Sales Tax Appellate Tribunal. In order to substantiate his above arguments he read out the provisions of section 194-A of the Customs Act to point out that appeal before the Tribunal could only be filed against the following orders:---

(1) Order passed by Collector (appeals) under section 193 of the Customs Act

(2) an order passed under section 193 as it stood immediately before the appointed date

(3) order passed by the Board or Collector Customs under section 195.

4. He also read out the provisions of rule 103 of the Customs Rules, 2001 to support his contention that the order in original and the order in appeal had been passed under sub-rules (1) and (2) of rule 103 of the Customs Rules 2001. He therefore, submitted that since no appeal was available to him against the impugned order and since this Court had dismissed the petition on the basis of his statement that the remedy of appeal was available to him, therefore, he prayed that this application may be allowed and the order of this Court dated 12-8-2009 may be set-aside and the petition be restored to its previous position.

5. Mr. Raja Muhammad Iqbal learned counsel for the respondent also read out the provisions of section 194-A of the Customs Act and argued that the impugned order falls under clause (ab) of section 194-A and therefore this Court had rightly rejected the petition.

6. We have examined the case in the light of the arguments of the learned counsel and have examined the records of the case and perused the relevant law on the subject.

7. At the very outset we deem it relevant to reproduce the provisions of sections 193 and 194-A of the Customs Act and rule 103 of the Customs Rules 2001 and the same are reproduced below.

Section 193.

Appeals to Collector (Appeals).---(1) Any person other than an officer of customs aggrieved by any decision or order passed under sections 79, 80 and 179 of this Act by an officer of customs not below the rank of an Assistant Collector may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order:

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.

(2) An appeal under this section shall be in such form and shall be verified in such manner as may be prescribed by rules made in this behalf.

(3) An appeal made under this Act shall be accompanied by a fee of one thousand rupees to be paid in the manner that may be prescribed by the Board.

194-A

Appeals to the Appellate Tribunal.---(1) Any person or an officer of Customs aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders.

(a) Omitted.

(ab) an order passed by the Collector (Appeals) under section 193;

(b) Omitted.

(c) an order passed under section 193, as it stood immediately before the appointed day;

(d) an order passed by the Board or the Collector of Customs under section 195.

Rule 103 of Customs Rules, 2001.

Action in case of violations.---(1) The Licensing Authority may, by order, suspend or revoke a licence for any of the following reasons, namely:---

(i) breach by the licensee of any provision of these rules;

(ii) negligence, dilatoriness or inefficiency of the licensee in the discharge of his obligations as such;

(iii) unsatisfactory conduct or unfaithful behaviour of the licensee as regard the Custom House, Station, Port or as the case may be, Customs-Airport regulations or officer or in relation to any person who has entrusted him with any business pertaining to the Custom House, Station, Port or Airport;

(iv) failure of the licensee to comply with any of the bond executed by him under these rules;

(v) punishment of the licensee under the Act;

(vi) concealing, removing or destroying by the licensee of his financial or business records or refusing to allow an officer of Customs to inspect them and take extracts therefrom.

(vii) attempting to influence the conduct of any employee in the Custom House, Station, Port or Airport by use of threat, false accusation, duress or the offer of any special inducement or by the bestowal of gift;

(viii) failure of the licensee to exercise due diligence and care to apprehend and forestall an untrue declaration in respect of description, content, sort, quality or value of the imported goods by his client; and

(ix) withholding by the licensee for the proper officer of Customs of any information, document or other evidence which is likely to prevent any fraud or evasion of customs duty and other taxes or dues and the circumvention or contravention of any restrictions imposed by any law for the time being in force.

(2) While passing orders under sub-rule (1), the Licensing Authority may also direct forfeiture of the security deposited by the licensee under rule 95(2), in addition to any penalty to which he may be liable under the Act any other law for the time being in force:

Provided that Appeal against an order made under this rule 103 shall, within three months from the date of communication of such order, lie to the Collector of Customs and shall be accompanied by a certified copy of such order.

8. On perusal of section 193 we find that appeal before the Collector (Appeals) can only be filed in respect of any decision or order passed under sections 79, 80 and 179 of the Customs Act by an officer of Customs. In clause (ff) of section 2 of the Customs Act Collector (Appeals) has been defined to mean a person appointed to be a Collector of Customs (Appeals) under section 3. On a perusal of rule 103 of the Customs Rules, 2001 we have noted that the Licensing Authority has been empowered to pass an order under this rule for suspending or revoking a licence for various reasons and the proviso to sub-rule (2) of this rule provides that an appeal against any order made under rule 103 shall be filed before the Collector of Customs having jurisdiction in the matter and not before the Collector of Customs (Appeals). From a perusal of section 194-A of the Customs Act it is seen that an appeal before the Tribunal under this Section can only be filed against the following orders:---

(1) Order passed by Collector (appeals) under section 193 of the Customs Act.

(2) an order passed under section 193 as it stood immediately before the appointed date.

(3) order passed by the Board or Collector Customs under section 195.

9. From a perusal of the impugned order we have seen that it is not an order passed by the Collector (Appeals) in accordance with the provisions of section 193 but an order passed by the Collector of Customs exercising his jurisdiction of appeal under the proviso to sub-rule (2) of rule 103 of Customs Rules, 2001 and therefore the impugned order does not fall under clause-(ab) of section 194. So far clause (c) is concerned it relates to the orders under section 195 of the Customs Act. From a perusal of this section it is seen that these orders can be passed suo motu by the Board or Collector of Customs after examining the records of any proceedings under the Act and if the Board or Collector of Customs is not satisfied as to the legality or propriety of any decision or order passed by the subordinate officer then they may pass such order as they deem fit. From a perusal of the impugned order we have seen that this is not an order passed under section 195 of the Customs Act.

10. We are, therefore, of the considered opinion that the order passed by the Collector Appraisement or any other Collector in accordance with powers vested to him under the proviso to sub-rule (2) of rule 103 of the, Customs Rules, 2001, is not an order passed either by Collector (Appeals) under section 193 nor an order passed by the Board or Collector of Customs under section 195 and therefore no appeal can be filed against such order before the Tribunal under section 194-A of the Customs Act.

11. In view of the above we are also of the opinion that the order under review was passed on mistaken admission made by the learned counsel for the petitioner that remedy of appeal before the Tribunal was available to him. We, therefore, allow this review application and recall the order dated 12-8-2009 and hold that the petition shall be declared to be pending before this Court. Office is directed to fix the case as per Roster.

M.U.Y. /K-6/KOrder accordingly.