INAMULLAH VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2015 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 2279 (2015)

Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----Ss. 2(3), 9(2)(a) & 10(1)(4)---Supreme Court Rules, 1980, O.XX---Seizure and confiscation of smuggled goods-Maladministration---Allegedly smuggled goods were seized along with the truck carrying those goods by Anti-Smuggling Organization---Adjudicating Authority, confiscated said goods and penalty of Rs.100,000 was also imposed on accused---Appellate Tribunal allowed redemption of seized goods and the truck against fine---Aggrieved by the order of Appellate Tribunal, department filed Reference before High Court---As no stay had been granted by High Court against said order of the Tribunal, complainants requested for implementation of Tribunal's order---Department having refused to release the goods and truck in question as per Tribunal's order, the complainants invoked the jurisdiction of Federal Tax Ombudsman alleging maladministration in terms of S.2(3) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000---Reference filed by the department against order of the Tribunal, was pending adjudication---As the matter was sub-judice the complaint filed by the complainant, was not maintainable in terms of S.9(2)(a) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000---Bar of S.9(2)(a) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, was absolute, irrespective of whether stay had been granted or otherwise---Federal Tax Ombudsman, could not exercise jurisdiction to investigate or inquire into matters, which were sub-judice before court of competent jurisdiction---Federal Tax Ombudsman, accordingly declined assumption of jurisdiction---Complaint was rejected on account of ouster of jurisdiction in terms of S.9(2)(a) of the Ordinance.

Complaint No.60/LHR/ST(20)/132/2014; Mirdad of Kohistan v. FBR Complaint No .14/KPK/Cus(02)/381/2013 ; F. No.37/FTO . 2013 (Law Division No.50/2011-Law-(FT0)-C.No.28/Isd/Cust(05)/213/2011; Collector of Customs v. FTO and others Writ Petition No.2171-P/2014 and Messrs Khyber Spining Mills Gadoon v. Secretary, Revenue Division, Islamabad 2002 PTD 2646 ref.

Umar Farooq, Advisor Dealing Officer.

Ahmad Faraz Lone, Authorized Representative.

Mrs. Irum Sohail, DC and Saleem Ahmad Malik, Inspector Departmental Representatives.

ORDER

ABDUR RAUF CHAUDHRY FEDERAL TAX OMBUDSMAN.---The complaint was filed in terms of Section 10(1) of the Federal Tax Ombudsman Ordinance, 2000 (the Ordinance). Alleged facts of the case are that on receipt of an information, a cache of smuggled goods i.e. Imperial Leather soap with packing bearing inscription 'In Transit to Afghanistan', Pine brand cigarettes of Korean origin and Lintee brand self adhesive tape of Indonesian origin was seized along with the truck carrying these goods, by the Anti-Smuggling Organization (ASO) of Model Customs Collectorate (Preventive) [MCC (P)], Lahore (the Deptt). A show-cause notice was issued to the accused persons and an Order-in-Original No.67/2013 dated 25-10-2013 was passed by Additional Collector of Customs (Adjudication), Lahore confiscating the goods and imposing a penalty of Rs.100,000 on the accused. The complainants sought remedy through Appeal No.119/14/ 335/14 before the Customs Appellate Tribunal, Lahore (the Tribunal). The Tribunal allowed redemption of the seized goods (except cigarettes) and the truck against fine vide its order dated 1-10-2014. Aggrieved by the order of the Tribunal, the Deptt filed a Reference Application No.130/2014 dated 18-12-2014, before Hon'ble Lahore High Court. As no stay had been granted by the Hon'ble Lahore High Court against the said order of the Tribunal, the complainants requested for implementation of the Tribunal's order. However, the Deptt refused to release the goods and vehicle in question as per the Tribunal's order. Hence, the complainants invoked the jurisdiction of the FTO maladministration in terms of Section 2(3) of the FTO Ordinance, 2000 (the Ordinance).

2. The complaint was referred for comments to the Secretary, Revenue Division, in terms of Section 10(4) of the Ordinance. In response, the Collector of Customs (Preventive), Lahore filed para wise comments vide letter No.l(244)S(TO-II)/2015 dated 13-3-2015, inviting attention to the aforesaid Reference Application 130/2014, filed by the Deptt. in the Hon'ble Lahore High Court against order of the Tribunal and contending that the matter being sub judice, the complaint was not mantainable in terms of section 9(2)(a) of the Ordinance.

3. During hearing, the AR argued that in the absence of any restraining order from the Hon'ble Lahore High Court, implementation of the Tribunal's order could not be refused. In support of his contention, the AR cited an earlier decision of the FTO in complaint No.24/KPK/CUS(05)/523/2012 dated 7-7-2012, holding that mere filing of an appeal in a higher forum did not automatically suspend the judgment of the lower forum. The AR also referred to the Order XX of Pakistan Supreme Court Rules, 1980, as reproduced below:---

ORDER XX

MISCELLANEOUS

'The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court.'

4. In addition, the AR furnished a copy of a judgment by the Hon'ble Supreme Court in Civil Petition No.48-L of 2005 (Mst. Sardaran (deceased) through her Lawyers v. Suleman and another) wherein it was directed as under:--

`The Provisions of Order XX of the Supreme Court Rules, 1980 be brought to the notice of the Registrars of all the High Courts for strict compliance by all the Courts/Forums working under supervision and control of the High Court.'

5. On this basis, the AR requested for implementation of the order of the Tribunal. The AR also referred to some decisions of higher judiciary where cases in which stay was not granted were decided in favour of the petitioners. His attention was drawn to the bar of FTO jurisdiction under Section 9(2)(a) of the Ordinance. He, however, insisted on arguing the case by citing references to various decisions of higher judiciary and the FTO wherein similar sub judice cases, without stay, were decided in favour of the complainants/petitioners.

6. The DR contested the AR's contentions and cited a recent decision in Complaint No.60/LHR/ST(20)/132/2014 whereby the FTO Jad categorically decided that 'the bar of Section 9(2)(a) is absolute irrespective of whether stay has been granted or otherwise, the FTO will accordingly decline assumption of jurisdiction'.

7. The complaint has been examined in the light of written and oral submissions of the parties and the case-law on the issue of bar of FTO jurisdiction. While deciding FBR's Representation No.1(381)S(TO-II)/ 2013 against the FTO findings/recommendations in Complaint No.14/KPK/Cus(02)/381/2013 (Mirdad of Kohistan v. FBR), Hon'ble President of Pakistan has decided vide F. No. 37/FTO/2013 dated 10-11-2014 as under:--

'The present case is clearly distinguishable as reference was in fact pending on the date complaint was filed. This being so the bar laid down in Section 9(2)(a) of FTO Ordinance, 2000 was squarely applicable as held in a later decision of the President in F. No .37/FTO 2013(Law Division No .50/2011-Law-(FT0)-C.No. 28/Isd/Cust(05)/213/2011 . '

8. Similarly, in its judgment dated 22-1-2015 in Writ Petition No.2171-P/2014 (Collector of Customs v. FTO and others), Hon'ble Peshawar High Court has decided as under:

'The relevant law i.e. Section 9(2)(a) of Ordinance, 2000 is very clear that Federal Tax Ombudsman cannot exercise jurisdiction to investigate or inquire into the matters which are sub judice before Court of competent jurisdiction or tribunal etc. Guidance in this respect has also been sought from "Messrs Khyber Spining Mills Gadoon v. Secretary, Revenue Division, Islamabad" (2002 PTD 2646), wherein it is held:--

'Pre-condition for ouster of jurisdiction of Federal Tax Ombudsman was that the matter should be sub judice before any Court-Tribunal or authority on the date when petition was filed under the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000.

Reference may also be made to "Messrs Qasim Cotton Ginners v. Secretary, Revenue Division, Islamabad" (2007 PTD 1317).'

9. In view of the recent decisions of Hon'ble President of Pakistan and Hon'ble Peshawar High Court, the complaint is rejected on account of ouster of jurisdiction in terms of section 9(2)(a) of the Ordinance and the case file consigned to record.

HBT/62/FTOComplaint rejected.