SAIGOL QINGQI MOTORS LTD. VS FEDERATION OF PAKISTAN, 2011 PTD-LAHORE-HIGH-COURT-LAHORE 1290 (2011)

Customs Act (IV of 1969)---

----Ss. 202/194-A/194-B---Constitution of Pakistan, Art.199---Constitutional petition-Notice for recovery of government dues---Suspension of operation of notice---Petitioner had prayed for suspension of notice whereby authorities had directed the petitioner to deposit government dues immediately-Petitioner had contended that his second appeal filed under S.194-A of Customs Act, 1969 being pending adjudication before Appellate Tribunal, he could not be penalized for the delay in disposal of his appeal by the Customs Appellate Tribunal---Validity---Since appeal of the petitioner was pending adjudication before the Customs Appellate Tribunal and had not been decided, in the event of the recovery of outstanding demand, petitioner's appeal would become infructuous---Customs Appellate Tribunal was directed to decide the appeal of the petitioner within a period ";t two months and till then authorities would not adopt measures for the recovery of disputed amount.

Sunrise Bottling Company (Pvt.) Ltd. v. Federation of Pakistan 2006 PTD 535; Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax 2003 PTD 1746 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Mian Abdul Ghaffar and Raza Ahmad Cheema for Petitioner.

Ch. Muhammad Zafar Iqbal for Respondent No.4.

ORDER

SH. AHMAD FAROOQ, J.---Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for suspending the operation of the notice dated 19-1-2011, whereby respondent No.4 has directed him to deposit the government dues immediately or to produce a valid stay order within three days.

2. Learned counsel for the petitioner submits that the second appeal of the petitioner, filed under section 194(A) of the Customs Act, 1969, is pending adjudication before the learned Appellate Tribunal, Lahore since 21-9-2010, which was required to be decided within 60 days of its filing or within such extended period as the Tribunal may for reasons to be recorded in writing in the light of proviso to section 194(B) of the Customs Act, 1969. Further submits that the petitioner cannot be penalized for the delay in the disposal of his appeal by the Customs Appellate Tribunal. Claims that the appeal is a continuation of the original adjudication and unless and until the liability is finally adjudged, the same cannot be recoverable as Government Revenue. Adds that the impugned notice, dated 9-2-2011, for the deposit of the disputed amount as well as the penalty is illegal and unconstitutional

3. Conversely, the learned counsel for respondent No.4 submits that the Customs Appellate Tribunal is empowered to stay the recovery of the disputed amount and the said remedy has not been availed by the petitioner. Further submits that the delay in the decision of the appeal could not be attributed to the department/respondents.

4. Arguments heard. Record perused.

5. Admittedly, the appeal of the petitioner is pending adjudication before the Customs Appellate Tribunal since 21-9-2010 and the same has not been decided so far. Obviously, in the event of the recovery of outstanding demand, the petitioner's appeal would become infructuous. In the case of Sunrise Bottling Company (Pvt.) Ltd. v. Federation of Pakistan (2006 PTD 535), it has been held asunder:---

"Learned counsel for the petitioner has referred to the judgment of this Court in the case of Z.N. Exports (Pvt.) Ltd, v. Collector Sales Tax 2003 PTD 1746. In that case it has been held by this Court that an assessee is entitled to adjudication in respect of his disputed tax liability by at least one independent forum outside the hierarchy of the respondent-department. Admittedly in this case the impugned liability has been determined by the officers of the respondent-department and remedy of the petitioner before the learned Appellate Tribunal provides the independent adjudication of his challenge to the impugned tax liability.

(2) The honourable Supreme Court has laid down that access to justice is a fundamental right. In the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), it has been held that an essential feature of such right is the determination of any grievance or dispute by an independent Tribunal."

6. In view of above, the Custom Appellate Tribunal, Lahore is directed to decide the appeal of the petitioner, within a period of two months, from the date of the receipt of the certified copy of this order. Till then, the respondent No.4 shall not adopt coercive measures for the recovery of the disputed amount. However, this order shall be subject to the provisions of Article 199(4)(A) of the Constitution of Islamic Republic of Pakistan, 1973.

7. The instant petition is accordingly disposed of.

H.B.T./S-63/LOrder accordingly.