MUHAMMAD IQBAL VS COLLECTOR OF CUSTOMS (APPEALS), KARACHI, 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2159 (2016)

Customs Act (IV of 1969)---

----S. 194-A---SRO 266(I)/2001, dated 7-5-2001---Delay in filing appeal---Delay, condonation of---Appeal against order-in-original and order-in-appeal, was time barred by 236 days---Contention of appellant was that delay was bona fide and beyond his control; as both order-in-original and order-in-appeal (impugned orders) were not communicated to him, as he had gone abroad and his premises remained closed for 4 to 5 years---Validity---Order-in-appeal, showed that it was not an ex parte order, but was decided on an appeal filed by the appellant---Application for condonation of delay, along with affidavit, was incorrect to that extent, in circumstances---Appellant's contention was that he received copies of order-in-original and order-in-appeal on 1-7-2015, when he returned from abroad---As to wherefrom appellant received those documents and came to know about those orders was not mentioned---Equity, demanded that applicant/appellant must come for justice with clean hands, but appellant had not approached the Appellate Tribunal with clean hands---Appellant's request for condonation of delay in filing of appeal, did not merit consideration---Appeal was dismissed on the point of limitation, in circumstances.

2002 SCMR 343 ref.

Asim Muneer Bajwa for Appellant.

Aurangzeb for Respondents.

Date of hearing: 10th March, 2016.

ORDER

MUHAMMAD NAZIM SALEEM, (MEMBER TECHNICAL-II).--This appeal has been filed on 18.08.2015 against Order-in-Original No. Nil dated 19.04.2010 and Order-in-Appeal 9289/2014 dated 17.09.2014. The office has raised objection that the appeal is time barred by 236 days and the appellant was directed to satisfy the Tribunal on the point of limitation.

2.Brief history of case as detailed in the impugned Orders is that the appellant exported 33 consignments of gold jewellery from Pakistan during the period 01.01.2005 to 31.12.2009 under self-consignment scheme in terms of SRO 266(I)/2001 dated 07.05.2001. The company was bound to bring foreign exchange into country equal to the cost of gold used in the manufacturing of Jewellery along with value addition amount (amount of sale proceeds) within 240 days from the date of export in terms of clause 6(iv) of aforementioned SRO, however, they failed to do so within the stipulated period. Accordingly, the matter was adjudicated by the Deputy Collector, Customs, Airport, Karachi vide Order-in-Original No. Nil dated 19.04.2014, wherein the said authority adjudged an amount of Rs.48.137 million against the present Appellant. The aforesaid Order was upheld by the Collector, Customs (Appeals), Karachi vide Order-in-Appeal No.9289/2014 dated 17.09.2014.

3.During the course of hearing on the issue of limitation, the counsel for the appellant contended that copies of the impugned orders were not received by the appellant as his office was closed since long because he was not in the country. In this regard, he supplied a copy of passport of the appellant which is placed in the case file. Further, in support of his arguments, he submitted two letters issued by his neighbour shopkeepers namely M/s. Euro Gold, Karachi and M/s U.K. Chhotani Jewellers both dated 01.10.2015 wherein it has been verified that the premises of the appellant were closed since last 4 to 5 years. The counsel pleaded that the delay was bona fide and beyond the control of appellant and copies of both the Orders were received on 01.07.2015 when the appellant returned to country and this contention was supported with affidavit dated 08.08.2015 with prayer that delay of 236 days may be condoned in the interest of justice as the same is bona fide not deliberate or intentional.

4.In support of his contention, the learned counsel for the appellant referred the orders of Division Bench of this Tribunal passed on the point of limitation in cases vide Nos.K-330 to K-332/2013 wherein delay of 88 days was condoned. The counsel for the appellant also cited judgment of the Hon'ble Supreme Court of Pakistan in this regard reported as 2002 SCMR 343.

5.The departmental representative controverted the arguments of the counsel for appellant and prayed that the appeal may be dismissed only on the point of limitation without going into the merits of case as the delay in filing of appeal is intentional and not bona fide.

6.We have heard both the contesting parties as well as examined the relevant record. The Application for Condonation dated 08.08.2015 says that both Order-in-Original and Order-in-Appeal were not communicated to the appellant. The study of Order-in-Appeal shows that it is not an ex-parte Order. It was decided on an appeal filed by the appellant. So Application along with Affidavit is incorrect to this extent. The appellant's contention is that he received copies of Order-in-Original and Order-in-Appeal on 01.07.2015, however, it has not been mentioned as to wherefrom he received these documents and when he came to know about these Orders. Furthermore, did he apply to the concerned authorities for provision of copies of these documents. If so, where is copy of his application and department's letter in response. Another very important point in this regard is that the appellant's address was at Zebunnisa Street, Saddar, Karachi while one of the two neighbours namely Euro Gold verifying closure of shop of the appellant, is located at Summer Set Street, Opposite Kachchi Memon Mosque, Saddar, Karachi which is quite far off Zebunnisa Street and cannot be treated as neighbour of the appellant. In view of aforementioned position, the said verification does not carry any weight rather casts aspersions on the bona fide of the Appellant's claim.

7.The study of para 6 of Order-in-Appeal is very important. It highlights that this Appellate Tribunal vide Order/Judgement dated 13.08.2012 directed the Collector, Customs (Appeals), Karachi to decide appeal within one month, after receipt of Order, however, the preliminary probe into the matter reveals that the said Order was not issued to Collector, Customs (Appeals), Karachi by the office of this Appellate Tribunal despite the fact that the aforementioned authority was one of the respondents in this case. It was only after letter of Assistant Collector, Customs, Airport, Karachi dated 23.07.2014 addressed to the Collector, Customs (Appeals), Karachi that the said authority fixed hearing in this case after two years, for 12.08.2014. The aforesaid position calls for formal probe into the matter.

8.Equity is the soul of justice, however, it demands that the applicant must come for justice with clean hands. The position highlighted in above paragraphs leads to conclude that the appellant has not approached this Tribunal with clean hands. In view, thereof, appellant's request for condonation of delay in filing of appeal does not merit consideration. The same is, therefore, dismissed on the point of limitation.

9.Announced.

HBT/70/Tax(Trib.) Appeal dismissed.