COLLECTOR OF CUSTOMS, LAHORE VS SOUTH EAST TRADING, 2014 PTD-LAHORE-HIGH-COURT-LAHORE 199 (2013)

Customs Act (IV of 1969)---

----Ss.179 & 2(a)---Adjudicating authority---Power of adjudication---Import of goods---Enhancement of value---Scope---Issue of valuation was adjudicated upon by Assistant Collector who found that the value of goods had been understated and directed the respondent / importer to pay different amount for customs duties and taxes---Said order of Assistant Collector was set aside by Appellate Tribunal on the ground that under S.179(1) of the Customs Act, 1969 the Assistant Collector did not have jurisdiction to adjudicate upon the matter---Customs Department impugned said order of Appellate Tribunal---Validity---Perusal of S.179 of the Customs Act, 1969 revealed that each authority working under the hierarchy of the customs department had been assigned a job to perform its duties within the parameter as specifically provided under the law and said hierarchy did not include Assistant Collector---Admitted on the record that adjudication was done by Assistant Collector regarding an amount of Rupees 28,876,294 whereas under S.179(1) of the Customs Act, 1969 the authority to adjudicate upon the case exceeding Rupees 15,000,00 vested only with the Collector----Order-in-original was therefore, without jurisdiction making the entire proceedings coram non judice---Any transgression to the responsibility assigned within the parameters of S.179(1) of the Customs Act, 1969 would render the entire exercise of authority ab initio void and illegal----Findings of Appellate Tribunal could not be interfered with---Appeal was dismissed, in circumstances.

Mansab Ali v. Amir PLD 1971 SC 124; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713 Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Saeed Farooq v. State and 2 others 1996 MLD 434 and Collector of Customs, Model Customs Collectorate of PACCS, Karachi v. Messrs Kapron Overseas Supplies Co. (Pvt.) Ltd. Karachi 2010 PTD 465 rel.

Miss Amna Warsi for Appellant.

Mian Abdul Ghaffar for Respondent.

Date of hearing: 18th April, 2013.

JUDGMENT

ABID AZIZ SHEIKH, J.---Through this custom appeal a number of questions were formulated by the appellant which were said to have arisen from the impugned judgment dated 17-11-2000 passed by the Customs Excise and Sales Tax Appellate Tribunal Lahore in Custom Appeal No.699/LB of 2000. On 7-11-2012, at the time of arguments of this appeal only one question of law was formulated:--

"Whether the officer passing the impugned judgment had the jurisdiction to pass the said judgment. While the stance of the appellant is that the said officer had such jurisdiction, the respondent is of the view that the impugned order was passed without jurisdiction."

2.Briefly, the facts of the case are that the respondent imported various consignments of plastic scrap and waste during May, 1996 and sought their clearance on payment of customs duty and other taxes. The customs staff examined the goods and it was found that their value was under stated. The staff ascertained the value of the subject consignment at U.S. $ 185 per M. Ton as against the declared value of U.S.$ 50 per M. Ton. The assessment was thus completed by the appraisal officer and customs duty and other taxes were worked out on the basis of the enhanced value. As per direction passed in writ petition, the Customs Authorities released the consignment in question on payment of customs duty and other taxes on the basis of the declared value and subject to indemnity bond for different amount. Subsequently issue of valuation was adjudicated by the Assistant Collector Dry port, vide order dated14-9-2000 who held that the value was not correctly declared and directedrespondenttopaythedifferentialamount. Theorderdated14-9-2000 was challenged and the same was set aside vide impugned order dated 17-11-2000 passed by Custom Excise and Sales Tax Appellate Tribunal.

3.The learned counsel for the appellant argued that the order dated 14-9-2000 was not without jurisdiction. The learned counsel referred to section 2(a) of the Customs Act, 1969 containing definitions of "Adjudicating Authority" to argue that any authority including Assistant Collector is competent to adjudication and such adjudication is not restricted to officers mentioned in section 179. It is argued that the order passed by the Adjudicating Officer was under section 80 of the Act read with S.R.O. 56(I)/93 dated 19-1-1993; that the conceding statement of the departmental representative before the Tribunal to the effect that Adjudicating Officer acted beyond jurisdiction was result of misunderstanding and there is no estoppel against the law.

4.Conversely, the learned counsel for the respondent argued that order dated 14-9-2000 passed by the Assistant Collector of Customs was absolutely without jurisdiction and she was not competent to pass such order as per pecuniary jurisdiction provided under section 179 of the Customs Act, 1969 to adjudicate. The learned counsel for the respondent pointed out that the representative of the department herself conceded before the Tribunal that Adjudicating Officer was not authorize under the law to decide this case and suggested that the same 'be remanded for de novo consideration.

5.We have heard the learned counsel for the parties and perused the record as well as the impugned judgment passed by the Appellate Tribunal and the relevant provisions of law in the instant case with their able assistance. In order to adjudicate the question of law, we have to briefly reiterate the events of facts. It is admitted position as specified in order dated 14-9-2000 that the concerned officer completed the assessment of goods under section 80 of the Customs Act, 1969 on the enhanced value of US $ 185/M.T. in exercise of the powers conferred upon him in terms of notification No. S.R.O. 56(I)/93 dated 19-1-1993. Thereafter the proceedings for recovery of outstanding Government dues amounting to Rs.27775263 were initiated vide letters dated 2-4-1998, dated 10-11-1999 and 20-11-1999. Finally, in letter dated 11-2-2000 the total liability was calculated to Rs.28876294.00 by way of making addition of Rs.459901 and Rs.684434 which was subject matter of the adjudication vide order Original No.50 of 1997 dated 18-12-1997 and No.49 of 1997 dated 18-12-1997.

6.Simultaneously, the importer/respondent agitated against enforcement proceedings and desired that issue of valuation may be decided through the process of normal assessment. Accordingly, adjudication was done and impugned order in original dated 13-9-2000 was passed by the Assistant Collector.

7.The above facts show that the order in original dated 14-9-2000 wastheresultofadjudicationundersection 179oftheCustomsAct.

Section 179 of the Customs Act, 1969 relates to the powers of Adjudication which is reproduced hereunder:--

"179 Power of adjudication.---(1) Subject to subsection (2) in cases involving confiscation of goods or imposition of penalty under this Act or the rules made thereunder, the jurisdiction and powers of adjudication of the Officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows:-

8.A perusal of the above referred section reveals that each authority working under the hierarchy of the customs department has been assigned a job to perform his duties within the parameter as specifically provided under the above law. This hierarchy does not include Assistant Collector.

9.It is admitted fact that the adjudication was done by Assistant Collector on 14-9-2000 regarding amount of Rs.28,876294.00, whereas under section 179(1) the authority to adjudicate upon the case exceeding Rs.1500,000 vests only with the Collector. The arguments advanced by the learned counsel for the appellant that Assistant Collector was competent to adjudicate the matter due to the definitions of "adjudicating authority" under section 2-(a) and power of Assessment under section 80 of the Act read with S.R.O. 56(I)/93 dated 19-1-1993, has no force because under section 80 read with S.R.O. 56(I)/93 dated 19-1-1993, only Superintendent/Principle appraisal could do Assessment of duty, which assessment was already done by the competent Authority, much before adjudication dated 14-9-2000. Therefore, the order was without jurisdiction making the entire proceedings coram non judice. Reliance is placed on Mansab Ali v. Amir (PLD 1971 SC 124); Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713) Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) and Saeed Farooq v. State and 2 others (1996 MLD 434).

10.Any transgression to the responsibility assigned within the parameter of section 179(1) of the Customs Act would render the entire exercise of authority to be ab initio void and illegal. Reliance is placed on Collector of Customs, Model Customs Collectorate of PACCS, Karachi v. Messrs Kapron Overseas Supplies Co. (Pvt.) Ltd., Karachi (2010 PTD 465).

11.Under the circumstances, we are not inclined to interfere with the findings of the Appellate Tribunal. Accordingly, the Question No.1 is answered in negative. Accordingly, this appeal stands dismissed.

KMZ/C-16/LAppeal dismissed.