CRYSTAL ENTERPRISES VS FEDERATION OF PAKISTAN, 2014 PTD-KARACHI-HIGH-COURT-SINDH 2073 (2014)

Customs Act (IV of 1969)---

----S.179(3)---Constitution of Pakistan, Art.199---Constitutional petition---Adjudication, power of---Unauthorized filing of constitutional petitions ---Petitioners were importers of goods who assailed notices of hearing issued to them pursuant to order passed by Customs Appellate Tribunal---Validity---After issuance of show cause notice case was to be decided by Adjudication Authority within one hundred and twenty days of issuance of such show cause notice (prior to 2009, it was from the date of contravention report) or within such period as extended by Collector for which reasons should be recorded in writing but such extended period was in no case to exceed sixty days---Grievance of petitioners was not that matter had not been decided within stipulated period from the date of issuance of show cause notice but from the date of judgment of Customs Appellate Tribunal---Such contention of petitioners was misconceived and was repelled by High Court---Petition was filed unauthorizedly on behalf of large number of petitioners as neither they had signed or sworn petition or affidavit nor any power of attorney or authority letter had been issued and placed on record inspite of specific objection by office in such regard---High Court deprecated such conduct of petitioners as through misrepresentation of facts and without filing relevant documents, petitioners obtained ex-parte restraining order, whereby adjudication proceedings had been suspended in respect of all persons who were not petitioners before High Court in legal terms---Petition was dismissed in circumstances with costs.

Afzal Awan for Petitioners.

Iqbal M. Khurram and Ainuddin Khan D.A.G. for Respondents.

Date of hearing: 7th August, 2014.

JUDGMENT

MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition the petitioner has impugned the hearing notices dated 17-4-2013 issued to the petitioners pursuant to the Order passed by the Customs Appellate Tribunal dated 21-6-2012, whereby the Order-in-Original passed by the Adjudicating Authority and the Order-in-Appeal passed by the Collector of Customs (Appeals) have been set aside and the matter was remanded to the Adjudicating Authority to pass the order afresh by independently stating the facts of each case and pass a speaking order thereafter, giving both the parties an opportunity of being heard.

2.Briefly, facts of the case are that all the petitioners had imported various consignments of Iron and Steel Galvanized Steel Sheets and Cold Rolled Steel Sheets in the year 2007, which the petitioners managed to have released from respondent No. 3 without application of a Valuation Ruling issued in terms of section 25A of the Customs Act, 1969. Subsequently a contravention was made by the Post Clearance Audit Department, Karachi and show-cause notices were issued where after Order-in-Originals were passed. The petitioners challenged the Orders-in-Original by filing appeals in terms of section 193 of the Customs Act, 1969 which were also dismissed, against which further appeals in terms of section 194A of the Customs Act were preferred before the Customs Appellate Tribunal which have been allowed through a common judgment dated 21-6-2012, after setting aside the order of the forums below with directions to proceed afresh in the matter. Thereafter, hearing notices dated 17-4-2013 were issued independently to the petitioners which have been impugned through instant petition. On 25-4-2013 this Court had restrained the respondents from passing any final adjudication order.

3.Learned counsel for the petitioners has contended that the hearing notices issued to the petitioners are illegal and unlawful in as much as the same have been issued beyond the period of limitation as prescribed in section 179(3) of the Customs Act, 1969 which, according to learned counsel, provides that cases shall be decided within 120 days of the issuance of show-cause notice, hence the hearing notices issued to the petitioners cannot be acted upon and the same are liable to be declared as ultra vires of the provisions of section 179(3) of the Custom Act, 1969.

4.Conversely, the learned counsel for the respondents and the learned DAG have vehemently opposed the maintainability of instant petition and have contended that instant petition is liable to be dismissed in limine as the hearing notices impugned through instant petition have been issued in compliance of the remand order passed by the Customs Appellate Tribunal, hence no illegality has been committed by the respondents in this regard. It has been further contended that the petitioners are at liberty to raise all such objections, including the objection regarding limitation, before the adjudicating authority which has already provided an opportunity of being heard to the petitioners, hence instant petition being misconceived in law and facts be dismissed with costs as the petitioners have obtained a restraining order without disclosing true facts.

5.We have heard the learned counsel and perused the record with their assistance. Since a short controversy is involved, by consent of all, instant petition is being disposed of at Katcha Peshi stage.

6.From the perusal of the record, it appears that the petitioners had imported various consignments of Galvanized Steel Sheets and Cold Rolled Steel Sheets which were apparently cleared by them under the Pakistan Customs Computerized System ("PaCCS"), through self assessment and the Valuation Ruling issued by the Director Valuation in terms of section 25A of the Customs Act, 1969 was not applied on the consignments of the petitioners. Thereafter, the Post Clearance Audit Department, Karachi, issued a contravention report and forwarded the same to respondent No.4 who, after issuance of show-cause notices, passed the Orders-in-Originals, which were assailed by the petitioners before the Collector of Customs (Appeals) in terms of section 193 of the Customs Act, 1969. The Appeals were dismissed by the Collector of Customs (Appeals) and thereafter the petitioners impugned the order of Collector of Customs (Appeals) before the Customs Appellate Tribunal which has been set aside by the Customs Appellate Tribunal vide its judgment dated 21-6-2012 and has remanded the matter to the adjudicating authority with certain directions. Pursuant to such remand order and the directions as contained therein, the respondent No.4 has issued hearing notices dated 17-4-2013 to all the petitioners which have been impugned by the petitioners on the allegation of being in violation of the provisions of section 179(3) of the Customs Act, 1969. It would be advantageous to refer to the provision of section 179(3) of the Customs Act, 1969 which is reproduced hereunder:--

179. Power of adjudication.---

(1)----

(2)----

(3)The cases shall be decided within [one hundred and twenty] days of the [issuance of show-cause notice] or within such period extended by the Collector for which reasons shall be recorded in writing, but such extended period shall in no case exceed [sixty] days:

Provided that any period during which the proceedings are adjourned on account of a stay order or alternative dispute resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days, shall be excluded for the computation of aforesaid periods.

(4)----

(5)----

From the perusal of the above provision it reflects that after issuance of a show-cause notice case is to be decided by the adjudicating authority within one hundred and twenty days of the issuance of such show-cause notice (prior to 2009 it was from the date of contravention report) or within such period as extended by the Collector for which reasons shall be recorded in writing, but such extended period shall in no case exceed sixty days. The proviso further provides that any period during which the proceedings are adjourned on account of a stay order or alternate dispute resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded for the computation of the above periods. On a thread bare examination of the above provision of law it appears that the language used in section 179(3) of the Customs Act, 1969 is explicitly, clear and does not require any elaborate interpretation by this Court. The provision of subsection (3) of section 179 of the Custom Act, 1969 refers to the word "Show-Cause Notice", whereas in the instant petition, the grievance of the petitioners is not that the matter has not been decided within the stipulated period from the date of issuance of show-cause notice, but from the date of the judgment of the Customs Appellate Tribunal. We are afraid such contention of the counsel for the petitioners is entirely misconceived and is hereby repelled. In our view it has no relevance to the cases and or orders which have been remanded either by the Courts or by the Appellate Forums in appeal with certain directions as it only relates to the original proceedings before the adjudicating authority. The issue in the instant petition is only in respect of a matter which has been remanded by the Appellate Tribunal and not of original proceedings before the adjudicating authority. In fact the controversy as to whether the provision of section 179(3) of the Customs Act, 1969 has any effect or not in cases which are not decided within the stipulated period of one hundred twenty days from the date of issuance of show-cause notice or within such extended period by the Collector concerned, and further as to whether such provision is mandatory or directory in nature, is not an issue before us in the instant petition, therefore we have refrained ourselves from recording any finding in this regard and may decide such controversy at an appropriate stage in some other case when the same is brought to the notice of this Court.

7.Insofar as the instant petition is concerned the same has been filed entirely on a frivolous ground as the separate impugned notices were properly issued by the respondent No.4 pursuant to remand order passed by the Appellate Tribunal, for independent decision of each case. In fact the petitioner has also failed to disclose as to whether, after remand of the matter by the Tribunal, did they ever approached the adjudicating authority to get the matter decided within the stipulated time as is being agitated now through the instant petition. We may observe that on perusal of the entire petition and its Annexure, it reflects that the petitioners have deliberately neither disclosed the entire facts of the case nor have enclosed the complete documents and orders which are material in nature in the instant matter, such as Goods Declarations, Copies of show-cause notices, Order-in-Originals, Order-in-Appeal passed by the Collector of Customs (Appeals) etc. We have also taken note of the fact that the instant petition has been filed by one Mr. Muhammad Iqbal S/o Muhammad Qasim claiming to be the authorized representative of all the petitioners and has sworn affidavit on their behalf before this Court. However, neither any authority or power of attorney has been annexed in this regard either with the petition or with the Vakalatnama nor the petition has been signed by any of the petitioners. An office objection was raised in this regard, in reply to the said office objection, the learned counsel for the petitioners has stated that the same will be complied with at hearing, however till date no compliance has been furnished in this regard, hence the instant petition is also liable to be dismissed in non-prosecution. In our view, such conduct of the petitioners is not proper, whereas the conduct of their Counsel is also not professional, and the same is violative of the law, procedure and the provisions of Legal Practitioners and Bar Council Act, 1973 which regulates the filing of petitions before this Court as well as the conduct of a lawyer who is required to sate correct facts and to provide legal assistance to the Court. We are of the view that instant petition has been filed unauthorizedly on behalf of a large number of petitioners as neither they have signed or sworn this petition or the affidavit nor any power of attorney or authority letter has been issued and placed on record in spite of specific objection by the office in this regard. Such conduct of the petitioners and their Counsel cannot be appreciated by this Court as through misrepresentation of facts and without filing the relevant documents, petitioner(s) have obtained an ex parte restraining order, whereby the adjudication proceedings have been suspended in respect of all the persons who are not the petitioners before this Court in legal terms.

8.In view of hereinabove facts and circumstances of the case, instant petition was dismissed vide our short order dated 7-8-2014 with cost of Rs.25,000 (Rupees Twenty Five Thousand Only) to be deposited by the petitioners in the account of High Court Clinic and these are the reasons for such short order.

MH/C-12/SindhPetition dismissed.