ABDUL GHAFFAR VS CUSTOMS APPELLATE TRIBUNALS, 2017 PTD-KARACHI-HIGH-COURT-SINDH 446 (2016)

Customs Act (IV of 1969)---

----S. 196(1)---Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006, Rr.5(3) & 12(3)---Reference---Memorandum of appeal---Deficient documents---Appeal was dismissed by Customs Appellate Tribunal on the ground of failure to file certified copy of Order-in-Original---Validity---Appellate Tribunal had authority to accept memorandum of appeal, which was not accompanied by all or any of the documents referred to in the Rules---Tribunal by ignoring such authority vested in it in terms of Rr. 5(3) & 12(3) of Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006, dismissed the appeal in a cursory manner without assigning any reason as to why such discretion could not be exercised in favour of applicant---Appeal was filed in time and was also accompanied with all relevant documents except Order-in-Original---Applicant was not given opportunity to explain his position and to make out such deficiency, on the contrary appeal was dismissed on such account alone, instead of being disposed of on merits---High Court set aside the order in question and remanded the matter to Customs Appellate Tribunal to decide the appeal on merits---Reference was allowed accordingly.

M. Akram Shahbaz for Applicant.

Kashif Nazeer for Respondent No.2.

ORDER

AQEEL AHMED ABBASI, J.---Through instant reference application, the applicant has expressed his grievance against the impugned order dated 12.03.2015 passed by the Customs Appellate Tribunal, Bench-II, Karachi, in Customs Appeal No.K-636/2014, whereby the appeal filed by the applicant has been dismissed on the ground of non-compliance of Clause (d) of sub-rule (3) of Rule 5 of the Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006.

2.Learned counsel for the applicant has readout the proposed questions and the impugned order passed by the Customs Appellate Tribunal as well as the orders of the forums below, however, candidly submitted that the applicant will press question No.1 only, which according to learned counsel, is a question of law and opinion on such question will decide the subject controversy involved in the instant case. The proposed question No.1 reads as follows:--

"Whether the learned tribunal miserably failed to Apply Judicial mind and legal acumen by not keeping in view the true spirit and application of clause (iii) of sub-rule (3) of Rule 5 of Customs Appellate Tribunal Rules (Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006 and blatantly ignored Rule 12(3) of the above quoted Rules?

3.Learned counsel for applicant has argued that Customs Appellate Tribunal was not justified to dismiss the appeal of the applicant on a technical and procedural lapse, whereas, the applicant was never confronted either by the Registrar nor the applicant was given an opportunity by the Customs Appellate Tribunal to make out such deficiency, if any, as permissible under the relevant rules i.e. Rule 5(3)(d) of Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006. Learned counsel for the applicant submits that though the learned Customs Appellate Tribunal has held in the impugned order that it was the fault of the Assistant Registrar, who received the memo of appeal, which was incomplete on account of deficient documents, however, in spite of such observation no opportunity was given to the applicant for making out such deficiency in terms of Rule 12 of said Rules, whereas, the applicant has been non-suited on technical ground instead of deciding the appeal on merits. Learned counsel for the applicant further argued that the matter before the adjudicating authorities and the Appellate Forum are required to be decided on merits instead of being dismissed on mere technicalities or on account of procedural lapse, whereas, such authority to point out the deficiency and to allow an aggrieved party to remove such deficiency is vested in the Registrar as well as the Tribunal. It has been prayed that the impugned order may be set-aside and the matter may be remanded back to the Tribunal to be decided on merits.

4.While confronted with such factual and legal position as stated by the learned counsel for the applicant, learned counsel for the respondent could not controvert the same and has candidly stated that if the applicant would have been given an opportunity either by the Registrar or by the Customs Appellate Tribunal, such deficiency i.e. non-furnishing the certified copy of Order-in-Original would have been cured, and the appeal could have been decided on merits instead of being dismissed on technicalities.

5.We have heard the learned counsel for the parties, perused the impugned order passed by the Customs Appellate Tribunal and examined the case record, which reflects that the appeal filed by the applicant before the Customs Appellate Tribunal was deficient to the extent that the applicant could not file the certified copy of Order-in-Original along with memo of appeal, however, record shows that no objection was raised by the Registrar while accepting such memo of appeal nor it appears that any opportunity was given to the applicant by the Customs Appellate Tribunal at the time of hearing the appeal to make out such deficiency, whereas, the appeal filed by the applicant has been dismissed on this account alone. It will be relevant to refer to provision of clause (d) of sub-rule (3) of Rule 5 of Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006, which reads as follows:--

"5(3)

(d) to point out defects in such appeals and applications to the appellants or applicants requiring them to rectify the mistakes by affording them a week's time and, if the defects are not rectified within the given time, to obtain the order of the Bench for the return of the appeals or applications, as the case may be to the appellants or applicants."

Above rules clearly requires the Registrar Appellate Tribunal to point the defects and allow the appellant to rectify the same, however, in the instant case, no such exercise has been undertaken by the office of Registrar. It will be equally relevant to refer to provisions of Rule 12(3) which reads as follows:-

"12(3) The Tribunal may keeping in view the circumstances of the appeal, accept a memorandum of appeal, which is not accompanied by all, or any of the documents referred to in these rules."

Above rules clearly provides that Appellate Tribunal has the authority to accept the memorandum of appeal, which is not accompanied by all or any of the documents referred to in these rules, however, it appears that the Customs Appellate Tribunal by ignoring such authority vested in it in terms of above rule, has dismissed the appeal in a cursory manner without assigning any reason as to why such discretion could not be exercised in favour of the applicant. More particularly, when the appeal was filed in time and was also accompanied with all the relevant documents, except the certified copy of Order-in-Original. It further appears that the applicant has not been given an opportunity to explain his position and to make out such deficiency, on the contrary appeal has been dismissed on this account alone, instead of being disposed of on merits. In view of hereinabove facts and circumstances of the case, the impugned order is hereby set-aside and the matter is remanded back to the Customs Appellate Tribunal to decide the appeal of the applicant on merits, after providing opportunity of being heard. It may be clarified that the aforesaid appeal shall stand restored, and shall be decided, preferably, within a period of two months from the date of receipt of this order.

6.Instant Spl. Customs Reference Application stands disposed of in the above terms along with listed application.

MH/A-131/Sindh Case remanded.