MUHAMMAD SHAFI VS COLLECTOR OF CUSTOMS, MCC, ISLAMABAD, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1090 (2014)

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

----Ss. 194-B & 17---Confiscation of vehicle---Application for rectification of Tribunal's order---Scope---Applicant having failed to produce any document to substantiate payment of duty/taxes levied against vehicle recovered from him, Adjudicating Authority vide order-in-original confiscated the vehicle; and appeal filed by applicant against order-in-original was dismissed by the Tribunal---Applicant filed application praying that said order be rectified; and order of confiscation be set aside; and vehicle be released to him unconditionally---Rectification, would mean to make a correction, and the Tribunal would confine itself to exercise the powers to correct only the clerical or arithmetical mistake in such order/judgment which had occurred due to accidental slip or omission---Rectification, could not be stretched nor its scope could be widened to an extent thereby defeating the manifest intent of the Legislature---Once court/judge signed and pronounced judgment, thereafter, court would cease to exercise jurisdiction in the same matter as court would become functus officio---When a judgment was signed and announced, aggrieved party could assail impugned order/judgment before the higher courts in appeal, revision, or could file a revision application in the same court, if the remedy of revision had been provided in the relevant statute as right of revision was a substantive right, and was always a creation of statute on the subject---Except said remedies, a previous judgment, could not be re-opened---Remedy of revision, having not been provided in Customs Act, 1969, after signing the judgment/order, and announcing, same could not be reopened through a rectification application---Judgment signed and announced, could not be annulled, set aside any modified by means of an application for rectification under S.194-B of the Customs Act, 1969---Application, was dismissed, in circumstances.

2003 CLC 1189 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 114---Review---Meaning and scope---Review was proceeding which existed by virtue of statute---Revision, was in the nature of new trial of the issue, previously tried between the parties and cause of action having been brought to the court again for trial by a new petition.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

Sikandar Naeem Qazi for Applicants.

Agha Sabir Hussain, S.I.O. for Respondent.

JUDGMENT

CHAUDHARY MUHAMMAD TARIQ, CHAIRMAN.---This application for rectification has been filed by Muhammad Shafi (The appellant of Appeal No. 89/CU/IB/2012).

2.Brief facts of the case are that a raiding party of Customs Preventive Division, MCC, Islamabad, intercepted one Toyota Crown Royal Saloon Car (model-1984 as per auction voucher while physically of 1994 Model), bearing Registration No. PJ-13-ICT, having chassis No. MS 122-702186, near Military Hospital, Rawalpindi Cantt, from the possession of Muhammad Shafi son of Karimullah R/o Gharbi Karsan, Tehsil Pindi Ghap, District Attock (The applicant). On demand, the above named owner/Driver could not produce any documents to substantiate payment of duty/taxes leviable against the aforesaid vehicle except the registration book. According to the registration book Model of the vehicle is 1984, while physically the vehicle is 1994 Model.

3.Accordingly, a Show-cause notice was issued to the applicant who submitted his reply and after Adjudicating with the matter, the Additional Collector Customs Islamabad vide order dated 5-9-2012 confiscated the vehicle. The operative part of Orders-in-Original is reproduced hereunder:--

"I have examined the case record and have also heard the seizing agency. Written as well as oral submission made by both the parties has also been considered. As per Lab Report No. 271/2012, dated 7-2-2012 obtained from the FSL, Capital Territory Police, Islamabad, the chassis number of vehicle has been cut and another iron piece of frame bearing No. MS122-702186 has been welded on its chassis number place. It is thus proved that the seized vehicle is a smuggled one and non duty paid. Hence, the charges contained in the show-cause notice stand established. I, therefore, order of outright confiscation of the seized vehicle Toyota Crown Royal Saloon Car (model-1984 as per auction voucher while physically of 1994 Model), bearing Registration No. PJ-13-ICT, having chassis No. MS122-702186, in terms of section 156(1)(89) of the Customs Act, 1969 read with S.R.O. 499(I)/2009 dated 13-6-2009 and section 3(3) of the Imports and Exports (Control) Act, 1950 for violation of sections 2(s) and 16 of the Customs Act, 1969, read with section 3(1) of the Imports & Exports (Control) Act, 1950".

4.The matter was assailed before this Tribunal against the order-in-original who dismissed the appeal and confirmed the order-in-original. The operative part of Judgment dated 18-7-2013 passed by my predecessor in office is reproduced hereunder:--

"I have heard both the parties and perused the case record minutely. The Lab Report No. 271/2012, dated 7-2-2002 obtained from the FSL, Capital Territory Police, Islamabad clearly reported that the chassis number has been cut and another iron piece of frame bearing No. MS122-702186 has been welded on its chassis number place. Moreover, the vehicle was seized against proper recovery memo. under the Customs Act, 1969. In the light of above mentioned lab reports, I find no illegality with the Order-in-Original No. 154/2012 dated 5-9-2012 passed by the adjudicating officer and rejected the appeal of the appellant".

5.On 13-9-2013 the applicant/appellant filed this application for rectification of order dated 18-7-2013 passed in Appeal No. 89/CU/IB of 2012 on the grounds mentioned therein and has prayed that the impugned order may kindly be rectified, order of Confiscation be set aside and vehicle may be released unconditionally to the applicant.

6.Conversely, learned counsel on behalf of respondent resisted this application and prayed for its dismissal.

7.Arguments heard. Record perused.

8.The applicant has filed this application for rectification on 13-9-2013 and has prayed that the impugned order passed by this Tribunal may kindly be rectified, order of confiscation be set aside and vehicle may be released unconditionally in the interest of justice. In this case the order-in-original was passed on 5-9-2012 while this Appellate Tribunal signed and announced judgment on 18-7-2013. Rectification shall means to make a correction, rectification confines itself to exercise the powers to correct only the clerical or arithmetical mistake in such judgment/order which have occurred due to accidental slip or omission. The definition of rectification cannot be stretched nor its scope can be widened to an extent thereby defeating the manifest intent of the legislature. Once court/Judge signs and pronounce Judgment. Thereafter the court ceases to exercise jurisdiction in the same matter as he becomes functus officio. (Relied on 2003 CLC 1189)

When a judgment is signed and announced, the aggrieved party may assail the impugned order/judgment before the higher Courts in appeal/ revision or may file a review application in the same court, if the remedy of review has been provided in such statute because right of review is a substantive right and is always a creation of the relevant statute on the subject.

9.A review is proceedings which exist by virtue of statute. It is in the nature of new trial of the issue, previously tried between the parties. The cause of action being brought into court again for trial by a new petition.

(Relied on law laid down by the Honorable Supreme Court of Pakistan in case of Muzaffar Ali v. Muhammad Shafi reported as PLD 1981 SC 94)

10.Except the above remedies a previous judgment could not be re-opened. In Customs Act, 1969, the remedy of the review has not been provided, therefore, after signing the judgment/order and announcing it, the same could not be re-opened through a rectification application.

11.The nutshell of the above discussion is that a judgment signed and announced could not be declared annulled, set-aside or modified by means of an application for rectification under Section 194(B)2 of the Customs Act, 1969. The application in hand is without any substances. Same is dismissed.

12.Announced.

13.Parties may be informed accordingly.

HBT/166/Tax(Trib.)Application dismissed.