PARAMOUNT INTERNATIONAL (PVT.) LTD., KARACHI VS PAKISTAN through Secretary Revenue Division Chairman Federal Board of Revenue, Islamabad, 2014 PTD-KARACHI-HIGH-COURT-SINDH 1256 (2014)

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

----Ss.179, 193 & 195---Pakistan Customs Tariff Heading No. 4813 of 2000---Constitution of Pakistan, Art.199---Constitutional petition---Second show-cause notice---Re-opening of decided matter---Scope---Petitioner/manufacturer of cigarette filter rods imported a consignment of plug wrap paper and sought clearance of the same under Pakistan Customs Tariff Heading No.4813.2000---Petitioner/ manufacturer was served with a show-cause notice, alleging that the goods in question were not freely importable and were hit by the provisions of Import Policy Order---In pursuance of show-cause notice, the adjudicating authority decided the matter in favour of petitioner/ manufacturer and allowed the goods in question to release against payment of leviable duty/taxes---After passing the first order in original in favour of petitioner/manufacturer, instead of releasing the goods in question, he was served with another show-cause notice stating that the case has been re-opened by the Collector of Customs under S. 195 of the Customs Act, 1969---In pursuance of second show-cause notice, the goods in question imported by the petitioner were ordered to be confiscated besides imposition of a penalty---Contention of the petitioner was that Collector was not justified in exercising powersforre-openingthefirstorder-in-originalandfailedtoshowas to what illegality or impropriety was found in the first order in original---Validity---While passing the order of re-opening, nothing had been recorded or shown as to what circumstances prevailed upon the Collector, to exercise power under S. 195 of the Customs Act, 1969 for re-opening of the first order in original---Collector had not disclosed any reason for issuance of second show-cause notice, except that the earlier order had been re-opened---Condition prescribed under S. 195 of the Customs Act, 1969 had not been met or fulfilled which could justify the exercise of power---Impugned order was set aside and the respondent customs authorities were directed to release the goods of petitioner---Constitutional petition was allowed.

Messrs Zibtec (Private) Limited v. Collector of Customs, Model Customs Collectorate and 3 others 2009 PTD 246; E.V. Evans v. Muhammad Ashraf PLD 1964 SC 536; Assistant Collector of Customs v. Khyber Electric Lamps 2001 SCMR 838 and MAN and Company through Proprietor v. Collector of Customs 2011 PTD 561 ref.

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

----Ss.179, 193, 194-A & 195---S.R.O. 886(I)/2012 dated 18-7-2012---Constitution of Pakistan, Art.199---Constitutional petition---Order passed by adjudicating authority---Appealable---Re-opening of adjudicated matter---Scope---Petitioner/manufacturer of cigarette filter rods imported a consignment of plug wrap paper and sought clearance of the same---Petitioner/manufacturer was served with a show-cause notice, alleging that the goods in question were not freely importable and hit by the provisions of Import Policy Order---Adjudicating authority decided the matter in favour of petitioner/ manufacturer and allowed to release the goods in question---Instead of releasing the goods in question, the Collector re-opened the matter and after serving another show-cause notice ordered for confiscation of goods besides imposition of a penalty---Contention of the petitioner was that first order in original was appealable one and if the Collector was not satisfied, he was required to file appeal against the same, therefore second order on the adjudicated matter was not legal---Validity---Act of adjudication was an independent act, and could not be supervised, re-examined or re-opened by the Collector, who in the subject matter was working as an executive or an administrative Collector---Concept of independent adjudication of cases had been introduced in the year 2012 by carrying out amendment in S. 179 of the CustomsAct,1969throughissuance of S.R.O. 886(I)/2012dated18-7-2012---As per the new amendment made under S. 194-A of the Customs Act, 1969, the department or an officer of Customs, if aggrieved, by any decision or order passed by an officer of Customs below the rank of an Additional Collector, could prefer an appeal before the Collector (Appeals)---First order in original passed in the subject matter was an appealable order for both the parties, therefore option to re-open an order passed under the adjudicating hierarchy was not available to the Collector---Eventhe Collector of Customs adjudication could not oversee or exerciseany right of re-opening of an order which had been passed by an officer lower in rank, but acting as an adjudicating authority---Impugned order was set aside---Constitutional petition was allowed.

Khan Trading Company, Gujranwala v. Collector of Customs, Excise and Sales Tax (Adjudication), Lahore 2002 CLC 705 and Collector of Customs v. Customs, Excise and Sales Tax Appellate Tribunal, Custom House, Lahore and another 2002 MLD 556 rel.

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

----Ss.179, 193, 194-A, 195 & 195-A--Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Re-opening ofmatter---Powers of Collector to delegate the matter to subordinate officer---Scope---Collector of Customs after re-opening the matter, remanded the case to Deputy Collector to decide the same---Effect---No authority or provision of law existed for collector for delegating or remanding of a matter to a sub-ordinate officer---If the order which had been re-opened in terms of S. 195-A of the Customs Act, 1969 was with a lawful authority and in which there were justifiable reasons for enhancement of fine, penalty, duty, etc. or for an intent to confiscate the goods which had not been confiscated earlier, Collector was required to issue notice by himself, and after hearing the aggrieved person, pass a necessary order as deemed fit---Collector could not re-open the matter, and then delegate it to some other officer---If an order was re-opened under S. 195-A of the Customs Act, 1969, then it was the Collector who had to pass the order after re-opening, which could further be assailed before the Appellate Tribunal---In the present case, Collector after reopening the case, had sent the same to a Deputy Collector, whose order was not an order within the contemplation of S.195-A of the Customs Act, 1969 and was not therefore appealable before the Appellate Tribunal, rather the same was appealable before the Collector Appeals under S. 193 of the Customs Act, 1969---Collector had failed to apply independent mind as to the legal implications of reopening of an order, therefore the second order in original was passed without lawful authority---Objection with regard to availability of alternate remedy was misconceived in circumstances---Constitutional petition was held maintainable and the same was allowed.

Pervaiz Iqbal Kansi for Petitioner.

Mohsin Imam, D.A.-G. for Respondent. No.1.

Mrs. Masooda Siraj for Respondents Nos.2 and 3.

Date of hearing: 6th March, 2014.

JUDGMENT

MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition, the petitioner has challenged Order-in-Original No. 170847 dated 23-1-2014 ("2nd ONO") passed by respondent No.3, assigned to it for re-adjudication, after exercise of powers of re-opening under section 195 of the Customs Act ("the Act") by the respondent No. 2, whereby the earlier Order-in-Original No. 157610 16-12-2001
("1st ONO") was re-opened through which the matter was decided in favour of the petitioner.

2.Briefly, the facts are that the petitioner, who manufactures "cigarette filter rods" and supplies them to various cigarette manufacturers, imported a consignment of "Plug wrap paper" and sought clearance of the same under Pakistan Customs Tariff Heading No.4813.2000. Subsequently, a show-cause notice dated 11-11-2013 was issued to the petitioner, wherein it was alleged that the said goods are not freely importable and hit by serial No. 13, Table-II, Appendix "B" of the Import Policy Order. The petitioner replied to the said show-cause notice, where after the adjudicating authority passed "1st ONO" and decided the matter in favour of the petitioner by holding as follows:-

"I have gone through the case record and have given due consideration to the arguments of importers as well as of the department. Appendix-B of the Import Policy Order, 2013 restricts the import of Cigarette Paper. Now the question is whether the Plug Wrap Paper is a cigarette paper or not? Cigarette Paper by means of its definition is a thin strong tissue paper that burns evenly and is of the proper porosity to control the burning of the tobacco it surrounds. On the other side Plug Wrap Paper is used for wrapping the inner cellulose of cigarette filter. The operative function of both the papers is different. Cigarette Paper is used for wrapping of tobacco, whereas Plug Wrap Paper for covering of cellulose of cigarette filter. This stance get strength from the explanatory notes of Chapter 48.13, whereinithasbeendefinedthatplugwrappaperisusedfor wrapping of the filter mass. Moreover, Sr. No. 2 of Schedule XXVII of S.R.O. 212(I)/2009 dated 5-3-2009 further supports the aforesaid version, whereby, the plug wrap paper is defined as raw material for manufacturing of its finished product Acetate Filter Rods. Besides aforesaid legal prepositions, the manufacturing literature reflects that both the products are different from each other by way of their grammage, international standards, manufacturing processes and machinery as both kinds of papers have been produced through different machineries. Hence, it has been conspicuous that Plug Wrap Paper is completely different product than that of Cigarette Paper and that is the reason that it has never been intercepted on account of restriction embodied in Import Policy Order, 2013. To this effect several evidence of previous clearances are available on record, which were cleared without any hindrance against payment of duty/taxes leviable thereon. Further, as per Harmonized Coding System, both the papers are classifiedunder PCT Sub-Chapter 48.13. Whereas, the departmental representative just on the mere basis of images opined that this paper can be used as cigarette paper and besides this he has not provided any supportive material to his opinion. The opinion of the departmental representative in absence of any convincing material/document does not seem feasible, while on the other hand all technical data, definitions and literature authenticating the usage of under reference commodity as wrapping paper of acetate filter instead of tobacco as in the case of cigarette paper. The importers have declared the imported Plug Paper under similar PCT heading 4813.2000 with the actual description i.e. Plug Wrap Paper, hence, the charge of mis-declaration as levelled in the show-cause notice is not being substantiated. In view of the foregoing, I am of the view that Plug Wrap Paper is completely different, commodity than that of cigarette Paper, such is a restricted item, hence, the condition mentioned at Sr.No.13 at Table-II of Appendix-B of Import Policy Order, 2013 cannot be invoked on Plug Wrap Paper. Since, the declaration was filed under correct PCT heading i.e. 48.13, hence, the charge of violation of sections 32(1)&(2) and 79(1) of the Customs Act, 1969 does not attract in the case. In the circumstances, I have been left with no option except to vacate the show-cause notice, hence the show-cause notice issued in the case is hereby vacated and goods are allowed release against payment of duty/taxes leviable thereon."

3.Subsequently, even after passing of 1st order-in-originalin its favour the goods were not released and instead the petitioner received another show-cause notice dated 21-1-2014 in which it was stated, that the case has been re-opened by the Collector of Customs ("Collector") under section 195 of the Act, and since there is no option in the system for re-opening, hence contravention is recreated for adjudication. However, the contents of the said show-cause notice, were verbatim similar to that of the earlier show-cause notice. Consequently 2nd order-in-originalwas passed, whereby the goods imported by the petitioner, were ordered to be confiscated out rightly, besides imposition of a penalty of Rs.100,000. Through instant petition, the 2nd order-in-originalhas been challenged on the premise that the same is without any jurisdiction and lawful authority.

4.Mr. Pervaiz Iqbal Kansi, learned Counsel for the petitioner, contended that the Collector was not justified, firstly, in exercising powers for reopening of the 1st order-in-originalunder section 195 of the Act; secondly, to delegate and or remand the same to another officer, for adjudication of the same on the basis of a new show-cause notice. Learned Counsel further contended that the Collector, or even the Deputy Collector, who had adjudicated the matter in the second round, have failed to show, as to what illegality or impropriety was found to have been recorded in the 1st ONO; hence the exercise of powers under section 195 of the Act was not available to the Collector, therefore, the 2nd order-in-original impugned in the instant petition, is without jurisdiction and is liable to be set aside. Learned Counsel for the petitioner, in support of his contention, relied upon the case of Messrs Zibtec (Private) Limited v. Collector of Customs, Model Customs Collectorate and 3 others (2009 PTD 246), E.V. Evans v. Muhammad Ashraf (PLD 1964 SC 536) and Assistant Collector of Customs v. Khyber Electric Lamps (2001 SCMR 838).

5.On the other hand, Mrs. Masooda Siraj, learned Counsel appearing on behalf of respondents Nos. 2 and 3,contended that the instant petition was not maintainable as it involves factual controversy. Learned Counsel further submitted that the petitioner had an alternate remedy by way of an appeal under section 193 of the Act. Learned counsel also argued that it is within the competence and jurisdiction of the Collector, to either reopen an order by which the department is aggrieved, or to prefer an appeal against the said order. Learned Counsel further contended that since the Collector was aggrieved by passing of the 1st ONO, therefore the power under section 195 of the Act was correctly exercised by the Collector. Learned Counsel in support of her contention relied upon the case of MAN and Company through Proprietor v. Collector of Customs (2011 PTD 561).

6.Mr. Saeed A. Memon learned Standing Counsel has adopted the arguments raised on behalf of respondent No. 2 and 3 and prayed for the dismissal of the instant petition.

7.We have heard both the learned counsel and have perused the record with their assistance. Since a very short controversy is involved, by consent of all, the instant petition is being decided at Katcha peshi stage. It appears that the petitioner is aggrieved by the Act of Collector, whereby the 1st order-in-original passed in its favour has been re-opened in terms of section 195 of the Act, and its remand to a Deputy Collector of Customs, for adjudication afresh. The case of the petitioner is, that the 1st order-in-original was required to be implemented by ordering release of the petitioner's consignment, and if not, then the Department could have preferred an appeal under section 193 of the Act. It would be advantageous to refer to the provisions of section 195 of the Act which is as under:--

"[195 Powers of Board or Collector [***] to pass certain orders.---(1) The Board or the Collector of Customs [***] may, within his jurisdiction, call for and examine the records of any proceedings under this Act of 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:

Provided that no order confiscating goods of greater value or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or sort levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorized by him.

(2) No record of any proceedings relating to any decision or order passed by an officer of customs shall be called for or examined under subsection (1) after the expiry of two years from the date of such decision or order.]"

8.The above provision of the Act allows the Collector to call for, and examine the record of any proceedings under this Act, for the purpose of satisfying himself,as to the legality or impropriety of any decision or order (italics supplied) passed by a subordinate officer, and may pass such order as he may think fit. It is further provided, that no order for confiscation of goods or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty, shall be passed unless the person affected thereby have been given an opportunity of showing cause and of being heard in person. From the perusal of the above, it transpires that, firstly, the order which is being re-opened should be such, in which there is any illegality or impropriety, for which the order is required to be re-opened by the Collector. This is, in fact, the first pre-condition, which must be present and fulfilled. However, in the instant matter, while passing the order for reopening nothing has been recorded or shown to us that as to what circumstances prevailed upon the Collector, to exercise this power under section 195 of the Act for reopening the 1st ONO. Even, the second show-cause notice which was issued subsequent to reopening of the order by the Collector, also does not discloses any such reason for issuance of the second show-cause notice, except that the earlier order has been re-opened by the Collector under section 195 of the Act. Therefore, in our view, the first condition has not been met or fulfilled which could justify the exercise of powers under section 195 of the Act, for re-opening of the 1st ONO. Now coming to the second condition, and which is more important, is that the Collector under section 195 of the Act can only order for reopening of any decision or order passed by a subordinate officer and not by an adjudicating authority. In the instant matter, the 1st order-in-original was passed, though by an officer who is working under the executive or the administrative Collector, but while passing the 1st order-in-original, the said authority was vested with powers of adjudication under section 179 of the Act read with Para 2 of S.R.O. 886(I)/2012 dated 18-7-2012, therefore, in such a situation the officer who had passed the 1st order-in-original was not a subordinate officer of the Collector at that time. The act of adjudication is an independent act, and cannot be supervised, re-examined or re-opened by the Collector, who in the instant matter is working as an executive or an administrative Collector. It must be appreciated that the concept of independent adjudication of cases has been reintroduced in the year 2012 by carrying out an amendment in section 179 of the Act, and thereafter, through issuance of S.R.O. 886(I)/2012 dated 18-7-2012. Earlier, the same concept was introduced in the year 2000 through Finance Act 2000 and continued till 2002, which has now been once again reintroduced through Finance Act, 2012.

9.It is also important to note that while introducing the said procedure for adjudication, by carrying out amendment in section 179 of the Act and issuing S.R.O.886(I)/2012 dated 18-7-2012, the legislature was not oblivious of the fact that, there could be a situation, wherein the department may be aggrieved by an order of adjudication, and it must also have a right to prefer an appeal against the said order, which was previously not available before the amendment as aforesaid, therefore, for such purposes, an amendment has also been made in section 193 of the Act. Now the department or an officer of Customs, if aggrieved, by any decision or order passed under sections 33, 79, 80 and 179 by an officer of Customs below the rank of an Additional Collector, can also prefer an appeal before the Collector Appeals. Similarly an amendment has also been carried out under section 194-A of the Act, allowing the department to prefer an appeal against a decision or order passed by an officer of Customs, not below the rank of Additional Collector under section 179 of the Act. Therefore, from the above it is clear, that the order which has been passed in terms of section 179 of the Act, as has been passed in the instant matter, is an order which is appealable both, by the aggrieved person or the department, therefore, the option to reopen an order passed under the adjudicating hierarchy, is not available to the Collector. In the post 2012 scenario, an order which can be re-opened in terms of section 195 of the Act is an order, which has been passed either on the executive side, or an order which has not been passed on the adjudicating side, i.e. in terms of section 179 of the Act, (though may be appealable like the assessment order under section 80 of the Act). Though no corresponding amendment has been made in section 195 of the Act, after introduction of the adjudication of cases independently, which in fact was also missing in the year 2000 when it was first introduced, yet in our view that is what the present position depicts. If otherwise, then the whole scheme of independent adjudication and appeal against such orders would be nullified, which is certainly not the intention of the legislature when the overall scheme is examined.

10.It must also be noted that there is a marked distinction between the words "Collector of Customs" working as an "Executive" or an "Administrative Collector" and the "Collector of Customs" working as an "Adjudicating Collector". In fact, even the "Collector of Customs Adjudication" cannot oversee or exercise any right of reopening of an order which has been passed by an officer lower in rank, but acting as an adjudicating authority. This scheme of independent Adjudication Collectorate when introduced in the year 2000 was dealt with by a learned Single Judge of the Lahore High Court namely, Mr. Justice Jawad S. Khawaja (as his lordship then was) and now a Judge of the Hon'ble Supreme Court, in the case reported as Khan Trading Company, Gujranwala v. Collector of Customs, Excise and Sales Tax (Adjudication), Lahore reported in 2002 CLC 705.The precise facts of this case were, that after issuance of a show-cause notice the matter was adjudicated by the Additional Collector (Adjudication) vide order-in-original dated 2-5-2001 and such order-in-original was partly in favor of the petitioner. Neither the petitioner, nor the department had preferred any appeal against the said order in original. However, another show-cause notice was issued to the petitioner by the Collector (Adjudication) purportedly for reopening the case which was earlier decided in favour of the petitioner. Such show-cause notice for reopening of the matter was challenged by the petitioner and the learned Judge held that the Collector (Adjudication) was not empowered to reopen the case of the petitioner which had attained finality; resultantly the Collector (Adjudication) had no jurisdiction to issue the impugned show-cause notice whereby the earlier order-in-original was being re-opened. The relevant findings are at Paras 5, 6, 7, 11 and 12 and are accordingly reproduced as under:--

"5.In the adjudicatory scheme, which has been incorporated in the Customs Act by the Finance Ordinance of 2000, a hierarchy has been established for adjudication of disputes between the Customs Department and persons dealing with it such as importers. Such hierarchy is separate and distinct from the Collector of Customs exercising the functions of administering the Customs Act and effecting recoveries thereunder, on the executive side. The Collector on the executive side, entrusted with the collection of revenue has been deliberately and consciously removed from the adjudicatory process.

6. Section 195 of the Customs Act, which has been relied upon by the learned counsel for the respondents to oppose the present petition and to provide justification for the issuance of the impugned show-cause notice, has to be read in the context of the adjudicatory scheme which now forms part of the judicial process under the Customs Act. The revisional power set out in section 195 also needs to be examined and circumscribed in the light of various statutory provisions including section 179 of the Customs Act and the Notification No. S.R.O. 448(I)/2000 issued thereunder by the C.B.R. It is clear from the aforesaid Notification read in the context of section 179 and section 5 of the Customs Act that Adjudication Authorities have been created to deal with matter of contention between the Customs Department and those having dealings with it such as the petitioner.

7. Learned counsel for the respondent-Department emphasized the fact that section 195 did not contain any distinction between a Collector of Customs on the executive side and a Collector of Customs working as an Adjudicating Authority. The contention, however, loses sight of the distinction between the two species of Collector which are envisaged by the various provisions of the Customs Act and in particular section 194-A, section 179, section 5 and section 3 thereof. The aforesaid distinction between the two is now very much an essential feature of the Customs Department.

11. I take up the second question first. It is clear from the statutory provisions reproduced above that an officer of Customs deciding a matter as an Adjudicating Authority, has been treated as a genus distinct from other offices of the Customs Department including the Collector of Customs referred to in section 195 of the Customs Act. This would be evident from the wording expressly and consciously used by the Legislature in clauses (a) and (d) of section 194-A(I) of the Customs Act.

12. At this point I consider it necessary to note the nature of the revisional jurisdiction of statutory function less generally under our system of jurisprudence and specifically to the revisional power set out in section 195 of the Customs Act. Revisional jurisdiction is in essence a supervisory jurisdiction whereby a superior forum or functionary is empowered to oversee the functioning of a subordinate forum or functionary. The revision power is thus essentially a matter between the revising authority and the subordinate forum or authority whose action is being overseen. In this senseit is distinguishable from the power vested in an appellate forum and that which is exercised by an Adjudicating Authority of first instance."

11.This judgment has been followed and upheld by a Division Bench of the Lahore High Court in the case of Collector of Customs v. Customs, Excise and Sales Tax Appellate Tribunal, Custom House, Lahore and another reported in 2002 MLD 556 wherein at Paras 11 and 13 relevant observation has been recorded in the following terms:--

"In the present case as adjudication having already been made before change in section 179 introduced by the Finance Ordinance, 2000, the Executive Collector could exercise his jurisdiction under section 195. However, he could not transfer the matter to Collector (Adjudication) as the latter did not enjoy any revisional jurisdiction in respect of another adjudicating authority irrespective of its designation or pecuniary jurisdiction. It appears that C.B.R. did not appreciate the difference between adjudication and exercise of revisional jurisdiction. An adjudication per se implies an original decision on the merits of a case both legal as well as factual. A revisional jurisdiction on the other hand is vested in an authority higher in the hierarchy and the purpose of such jurisdiction is to supervise the function performed by a lower authority. It appears that due to lack of corresponding amendment in the provisions of subsection (1) of section 195 to match those made in section 179, the exercise of revisional jurisdiction by an Executive Collector has been reduced to nullity. Also the Collector (Adjudication) cannot exercise revisional power under section 179 nor can reopen the decision made on adjudication side by an Additional Collector or a Deputy Collector. Likewise the Collector on executive side cannot touch an order of adjudication recorded by any of the three authorities, the Collector, Additional Collector or Deputy Collector as identified in section 179. The reasons simply being that none of them is an officer subordinate to him, which is a condition precedent for exercise of revisional jurisdiction under section 195. Therefore except for the case where adjudication was made before 1-7-2000 the Executive Collector cannot touch any order which decided "confiscation of goods or imposition of penalty under this Act and the rules made there under". After amendment in section 179 the Executive Collector is not empowered to interfere in adjudication matters directly or indirectly by invokinghisrevisional power under section 195. Infactafter1-7-2000 the revisional jurisdiction has remained relevant only to the extent of the C.B.R.

For what has been said above, we will maintain the findings of the learned Tribunal. It means that the Collector acting on executive side could not transfer the matter which had already been adjudicated upon to the Collector (Adjudication). Secondly, the order having been recorded before the amendment in section 179 he could himself proceed to revise the same if the stated conditions of law were answered. Thirdly, the Collector Adjudication had no authority to re-open or revise the order of adjudication irrespective of the official designation or to pecuniary limit of the Officer making the order."

12.Now this brings us to the second issue, that as to whether, even if it is found that the order passed by an officer lower in rank can be re-opened in terms of section 195 of the Act, whether the Collector is required to pass the order by himself under section 195 of the Act, or has the authority to delegate and or remand the case to any other officer. In the instant matter, though the order of reopening has not been brought on record by the respondents, however, from the perusal of the second show-cause notice, it transpires that the Collector after reopening the 1st order-in-originalunder section 195 of the Act, had send it to the Deputy Collector, who issued another show-cause notice, though the allegations contained therein were the same as were alleged in the first show-cause notice. In our view, this again does not seems to be a correct application of mind by the Collector as in terms of section 195 of the Act, there is no authority or provision for delegating or remanding of a matter to a sub-ordinate officer. If an order which has being re-opened in terms of Section 195 of the Act with lawful authority and in which there are justifiable reasons, for any enhancement of fine, penalty, duty etc. or for an intent to confiscate the goods which had not been confiscated earlier, it is only the Collector who is required to issue a notice by himself, and after hearing the aggrieved person, pass a necessary order as deemed fit by himself. The Collector cannot reopen the matter, and then delegate it to some other officer. If the provisions of section 194-A(d) of the Act are perused, the above view and the interpretation arrived at by us, is further justified. In terms of section 194-A(d) of the Act an appeal has been provided before the Appellate Tribunal against an order passed by the Board (not relevant here) or the Collector of Customs, under section 195 of the Act. This clearly shows that if an order is re-opened under section 195 of the Act, then, it is the Collector who has to pass the order after reopening, which could further be assailed before the Appellate Tribunal. What has happened in the instant matter is, that the Collector after reopening of the case, has sent it to a Deputy Collector whose order is not an order, within the contemplation of section 195 of the Act and is therefore not appealable, as such before the Tribunal, rather it has to be appealed, before the Collector Appeals under section 193 of the Act. We believe, that in the instant matter, the respondents Nos. 2 and 3 have failed to apply their independent mind as to the legal implications of reopening of an order and thereafter proceeding further in such a matter. Therefore, we are of the view that the 2nd order-in-originalwas passed without any lawful authority and jurisdiction, as such the instant petition is maintainable, and the objection with regard to availing of an alternate remedy by the petitioner is misconceived and is hereby repelled. The judgment relied upon by the learned Counsel for the respondents in the case of MAN (Supra) is also not relevant as it pertains to bar of jurisdiction with regard to deciding the factual controversies, which in the instant case are not being dealt with, decided or attended to, hence the said judgment is of no help to the case of the respondents.

13.In view of hereinabove we are of the view that the 2nd order-in-originalpassed by the respondent No.3 is without any lawful authority and jurisdiction. Consequently, the same is hereby set aside. The instant petition is accordingly allowed, however with no order as to costs. The respondents Nos. 2 and 3 are directed to immediately release the goods of the petitioner by implementing the 1st order-in-original in letter and spirit.

14.The instant petition is allowed in the above terms.

JJK/P-8/SindhOrder accordingly.