SIDDIQ TRADERS VS DEPUTY COLLECTOR CUSTOMS APPRAISEMENT-IV, CUSTOMS HOUSE, KARACHI, 2015 PTD-KARACHI-HIGH-COURT-SINDH 134 (2014)

Customs Act (IV of 1969)---

----S. 196---Reference to High Court----Scope---Taxpayer had raised questions with regard to merits of case in the present Reference to High Court under S. 196 of the Customs Act, 1969---Contention of Department was that such reference on merits of the case was not valid after matter had been remanded by Appellate Tribunal to Adjudicating Officer for decision afresh---Held, that perusal of order of Appellate Tribunal revealed that no finding with regard to merits of the case or on questions proposed in present reference had been recorded in said order for the valid reason that Appellate Tribunal had set aside impugned orders on ground that deciding more than one appeal through common order by giving effect to other cases mutatis mutandis had been deprecated by Superior Courts, and therefore Appellate Tribunal had remanded matter back to Adjudicating Officer for decision afresh---No error therefore existed in impugned order of Appellate Tribunal and therefore questions proposed by taxpayer in the reference did not arise from impugned order as there was no finding on issues---High Court observed that in case of remand of the case for a decision afresh, the only question that could have arisen from such order of remand, would be that under facts and circumstances of the case, whether the Appellate Tribunal was justified to remand the matter to the Adjudicating Authority to decide same afresh, which was not proposed in the present case---In case of remand, no question of law arises particularly when adverse order against taxpayer had been set aside, and no adverse order remained in field, therefore, a party could not be treated as an aggrieved party nor there remained anything to be decided by the High Court in terms of S, 196 of the Customs Act, 1969---Reference, being not maintainable, was dismissed in circumstances.

Messrs Pakistan Telephone Cables (Pvt.) Ltd. v. Federation of Pakistan 2011 PTD 2849; Commissioner of Income Tax v. Electronic Industries Ltd., Karachi 1988 PTD 111 and E.M. Oil Mills and Industries Ltd. v. Commissioner of Income Tax, Audit Division II, Companies III, Karachi 2011 PTD 2708 rel.

Muhamamd Afzal Awan for Applicant.

Khalid Mehmood Dhoon for Respondents.

Date of hearing: 3rd October, 2014.

ORDER

AQEEL AHMED ABBASI, J:---Through instant Reference Application the following questions, which according to the learned counsel for the applicant, have arisen from the impugned order passed by the Customs Appellate Tribunal Bench-I, in Customs Appeals Nos.K-63 of 2012 to K-127/2012 vide common order dated 21-6-2014:--

(A)Whether adjudication in absence of mandatory show-cause notice is maintainable in the eyes of law?

(B)Whether on the basis of an Audit Observation for alleged short levy of Rs.53,534 an adjudication order for recovery of Rs.4,31,551 is authorized under the law?

(C)Whether adjudication in the case of Post Clearance Audit is authorized in absence of Contravention Report duly issued by the Directorate?

(D)Whether learned Appellate Tribunal is authorized to remand the case under section 194-B(1) of the Customs Act, 1969?

2.Learned counsel for the applicant has read out the impugned order passed by the Appellate Tribunal and submits that the order of the Appellate Tribunal under the facts and circumstances of the present applicant is illegal, whereas, the Appellate Tribunal was not justified to remand back the case to the adjudicating officer to decide the same afresh, for the-reasons that the applicant has valid grounds for annulment of the impugned orders passed by the two forums below. Per learned counsel, in the instant case no Show-Cause Notice was issued before finalizing the adjudication proceedings, therefore, the entire proceedings in this case are nullity in the eyes of law.

3.Conversely, learned counsel for the respondents submits that no question of law arises from the impugned order passed by the Customs Appellate Tribunal as the matter has been merely remanded back to adjudicating authority to decide afresh. It is further contended by the learned counsel for the respondents that a Show-Cause Notice was issued in the instant case and no adverse inference can be drawn at this stage regarding a finding of fact as recorded by forums below unless the applicant may establish that the same was perverse. Per learned counsel, such question otherwise relates to a finding of fact and cannot be considered as a question of law.

4.We have heard both the learned counsel and perused the record. From perusal of the record and the order passed by the Customs Appellate Tribunal, it has been observed that Adjudicating Officer in the instant case has decided the cases of about 67 applicants through three common Order-in-Original No.124/2011, Order-in-Original No.125/2011 and Order-in-Original No.157/2011 all common dated 14-10-2011, which orders were assailed by the parties in appeal before the Collector (Appeals) who vide Order-in-Appeals Nos.5709 to 5775/2012 dated 30th January, 2012 decided all the 67 appeals through one common order by applying it mutatis mutandis in all the cases. The said order in appeal was assailed by they parties before the Customs Appellate Tribunal which, vide impugned order dated 21-6-2014 has decided the appeals in the following manner:-

"After perusal of the record of the case as well as the arguments extended by the appellant in his appeal specifically mentioned therein. para-19 along with the others, which says that the Collector of Customs (Appeals) acted in non-bona fide manner and did not obey the mandate under section 193-A of the Customs Act, 1969 as he chosen not to pass a speaking Judgment without framing the issues/points of controversy. The impugned Judgment is in violation of section 24-A of General Clauses Act. Considering the other arguments as well as the rebuttal made by the respondents and perusal of the Order-in-Origin as well as Order-in-Appeal evidently reflected the non-compliance of dictum and preposition of law specially as observed by the Honourable High Court in case of M/s. Pakistan Telephone Cables Limited v. Federation of Pakistan 2011 PTC 2849. The learned Collector of Customs (Appeals) fails to understand the concept of Mutatis Mutandis and its applicability, customs authorities were supposed to pass the separate order and the litigants had a right that their case should be disposed off on its own factual position of their case and not on the factual position of the case of another litigant.

We are, therefore, of the considered opinion that the orders passed by the learned Collector of Customs (Customs) as well as the learned Adjudicating Officer cannot be sustained, the orders of the lower fora are, therefore, set aside and the matters are remanded back to the Adjudicating authority to pass the order afresh by independently stating the facts of each case and a speaking order shall be passed after giving both the parties an opportunity of being heard.

This order may also be circulated to the concerned Customs Authorities for following the observations made by the Honourable High Court of Sindh in the case titled Messrs Pakistan Telephone Cables Limited v. Federation of Pakistan 2011 PTD 2849. The appeals are disposed of in the above terms and the directions given above."

5.From perusal of finding as recorded by the Customs Appellate Tribunal in the instant case, it appears that no finding with regard to merits of the case or on the questions which have been proposed by the applicant through instant Reference Application has been recorded by the Appellate Tribunal for the valid reasons that the Appellate Tribunal, by placing reliance on the reported case of Messrs Pakistan Telephone Cables (Pvt.) Ltd. v. Federation of Pakistan 2011 PTD 2849, has set aside both the impugned orders passed by the Adjudicating Officer and the Collector Appeals on the ground that practice of deciding more than one appeal through common order by giving effect of the decision to other cases mutatis mutandis has been deprecated by this court in the afore cited decision, therefore, the Appellate Tribunal remanded the matter back to the Adjudicating Officer to decide each case separately afresh keeping in view the peculiar facts and circumstances of each case. We do not see any error in the impugned order passed by the Customs Appellate Tribunal, which is based on the decision of a Division Bench of this Court as referred in the impugned order. Moreover, the questions proposed by the applicant do not arise from the impugned order as there is no finding on the issues. We may further observe that in case of remand of the case for a decision afresh, the only question which could have arisen from the order of remand by the Appellate Tribunal would be that under the facts and circumstances of the case, whether the Customs Appellate Tribunal was justified to remand the matter to the Adjudicating Authority to decide the same afresh. The learned counsel for the applicant has not proposed such question. Moreover, in the case of remand, no question of law arises particularly when the impugned orders have been set aside, whereas, after setting aside of the impugned orders, no adverse order remains in field, therefore, a party cannot be treated as an aggrieved party nor there remains anything to be decided by this court in terms of section 196 of Customs Act, 1969. Reliance in this regard can be placed in the case of Commissioner of Income Tax v. Electronic Industries Ltd. Karachi 1988 PTD 111 and E.M. Oil Mills and Industries Ltd. v. Commissioner of Income Tax, Audit Division II, Companies III, Karachi 2011 PTD 2708.

6.In view of hereinabove facts, and by respectfully following the ratio of afore cited decisions of this Court, we do not find any substance in the instant Reference Application which is hereby dismissed in limine along with listed application.

KMZ/S-94/SindhReference dismissed