PAKISTAN TELEPHONE CABLES LTD. VS FEDERATION OF PAKISTAN through Secretary Ministry of Finance, 2011 PTD-KARACHI-HIGH-COURT-SINDH 2849 (2011)

Customs Act (IV of 1969)---

----S. 196---Reference application---Principle of mutatis mutandis---Applicability---Scope---No independent order-in-original was passed in case of the applicants, but order passed in another case, was mutatis mutandis applied to their cases---Tendency of the Customs Authorities to finalize the cases on the basis of the concept of mutatis mutandis was depreciated---Customs authorities were supposed to pass separate orders in each case---Litigant had a right that his case should be disposed of on its own factual position of his case and not on the factual position of the case of any other litigant, despite the position that the facts would be the same---Orders of the lower court were set aside and the matters were remanded to the adjudicating authority to pass a speaking order afresh by independently stating the facts of each case giving both the parties an opportunity of being heard.

Junaid Ghaffar for Applicant.

Raja Muhammad Iqbal for Respondent.

ORDER

All these Special Customs Reference Applications have been filed against the common order of the Tribunal dated 6-5-2008 in Customs Appeals Nos.K-1012 to 1015/2004/17296, whereby the Appeals tiled by the present applicants had been dismissed.

The learned Counsel for the applicant has drawn our attention to the Order-in-Original dated 20-9-2003 passed in the case of Messrs Universal Cables Industries, Karachi, which was applied mutatis mutandis to the cases of the applicants. The learned counsel for the applicant has submitted that this Court had directed the Tribunal that they do not appreciate the order being passed mutatis mutandis as it is a basic right of a litigant that his case may be disposed off on the factual position of his case and not on the factual position of the case of any other litigant despite the position that the facts will be the same. The learned counsel has also relied on a judgment of the Lahore High Court in the case of Prime Chemicals v. Government of Pakistan, reported as 2004 PTD 1388, in which the Lahore High Court has also quashed the orders, which have been passed onthe basis of the facts of some other litigant. The learned counsel has also submitted that the Order-in-Original passed in the case of Messrs Universal Cables Industries, Karachi, was set aside by the Collector of Customs (Appeals) vide his order dated 30-6-2004 in Appeals Nos.207 to 210 of 2004. These facts could not be controverted by Mr. Raja Muhammad Iqbal, learned counsel for the respondent.

We have examined the cases in the light of the arguments of both the learned counsel and have perused the records of the cases and we find that the contention of the learned counsel is correct that no independent order-in-original was passed and after passing order in the case of Messrs Universal Cables the decision was mutatis mutandis applied to the cases of the present applicants.

We recall that we have already deprecated this tendency of the Customs authorities to finalize the cases on the basis of the concept of mutatis mutandis and had earlier directed them to pass separate orders in every case but apparently the decision has not been complied with. We are, therefore, of the considered opinion that these orders cannot be sustained. The orders of the lower Court are, therefore, set aside and the matters are remanded back to the Adjudicating Authority to pass an order afresh by independently stating the facts of each case and a speaking order is passed after giving both the parties an opportunity of being heard.

This order may be circulated to the Tribunal and the Customs Authorities with directions that in future no order should be applied mutatis mutandis to the cases of other litigants the facts of which have not been stated in such orders.

These reference applications are, therefore, disposed of in the above terms.

H.B.T./P-21/K???????????????????????????????????????????????????????????????????????????????????? Case remanded.