COLLECTOR OF CUSTOMS (APPEALS) VS SAINT ANTHONY COLLEGE, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 753 (2017)

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

---S. 201(1)---S.R.O No.172(I)/2013 dated 05-03-2013---Auction of vehicle by customs department despite stay order by Customs Appellate Tribunal ("Tribunal")---Tribunal had ordered return of the sale proceeds of the auctioned vehicle to the purchaser---Question as to whether the Tribunal passed the order without determining as to whether the vehicle qualified for the Amnesty Scheme for vehicles introduced vide S.R.O. No.172(I)/2013 dated 05.03.2013 or not---Tribunal had rightly observed that despite having conveyed stay orders to the concerned official quarters, the vehicle in question was auctioned---Customs department purportedly sent a pre-auction notice but there was nothing on record to show that it was received by the concerned officials---High Court directed that the Collector Customs should conduct an enquiry as to why the vehicle was auctioned while a stay was in field and it was in the knowledge of the department, and further as to why it was not ensured that a notice was issued to the concerned officials---Reference application was disposed of accordingly.

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

----S. 196---Reference before High Court---Scope---While exercising jurisdiction in terms of S.196 of the Customs Act, 1969 the Court was required to examine only question of law, which may arise from the order passed by Customs, Excise and Sales Tax Appellate Tribunal, whereas, the question of fact could not be examined under its reference jurisdiction.

Messrs Pak Suzuki Motor Company Limited, Karachi v. Collector of Customs, Appraisement Collectorate, Custom House, Karachi 2015 PTD 2600 ref.

Ch. Muhammad Zafar Iqbal for Applicant.

ORDER

JAWAD HASSAN, J.---This is a Reference under section 196 of the Customs Act, 1969 (the "Act").

2.Following question of law is proposed for our opinion, which is asserted to have arisen out of judgment dated 31.08.2016 of the Customs Appellate Tribunal Bench-II, Lahore (the "Appellate Bench"):--

QUESTION OF LAW

Whether the learned Appellate Tribunal exercised its jurisdiction illegally and with material irregularity in ordering return of the sale proceeds of the auctioned vehicle to the Respondent No.1 and passing the impugned order without determining as to whether the vehicle qualified for the Amnesty Scheme for vehicles introduced vide S.R.O. No.172(I)/2013 dated 05.03.2013 or not?

3.The learned Appellate Bench has rightly observed in paragraph 13 of the impugned judgment that despite having conveyed Tribunals stay orders to the concerned official quarters, the vehicle in question was auctioned on 26.06.2012. The department purportedly sent a pre-auction notice to the Appellant on 14.09.2011 but there is nothing on record to show that it was received by the Appellant/Applicant. We agree with the findings of the learned Appellate Bench which in the impugned judgment in paragraph 16 has observed that the Collector should conduct an enquiry as to why was the vehicle auctioned while a stay was in field and it was in the knowledge of the department. Further why it was not insured that a notice was issued to the appellant.

4.We have heard that learned counsel for the Applicant and find that the question of law as argued by the Applicant does not arise in this case as the interpretation given by the Appellate Tribunal is clearly in accordance' with law. Reliance in this regard is placed on the case titled Messrs Pak Suzuki Motor Company Limited, Karachi v. Collector of Customs, Appraisement Collectorate, Custom House, Karachi (2015 PTD 2600) in which it was held as follows:--

"We may observe that while exercising jurisdiction in terms of section 196 of the Customs Act, 1969 the Courts are required to examine only question of law, which may arise from the order passed by Customs, Excise and Sales Tax Appellate Tribunal, whereas, the question of fact cannot be examined under its reference jurisdiction. Reference in this regard can be made to the case of Gold Trade Impex v. Appellate Tribunal of Customs, Excise and Sales Tax, Excise and Sales Tax reported in 2012 PTD 377, wherein it has been held as under:-

"18. Before giving our opinion on the common questions proposed through instant reference applications, we may observe that in terms of section 196(1) of the Customs Act, 1969 and in view of the judgments of superior Courts on the subject, only substantial questions of law, arising out of the order of the Tribunal, can be referred for opinion of this Court through reference application whereas questions of disputed facts cannot be examined by this Court under reference jurisdiction. "A point of law" could not be equated with expression "question of law", whereas a question of law referred for opinion of this Court in real scene must be a disputed or disputable question of law. We may further observe that the questions of law referred for opinion by this Court must be formulated in such a manner that the reply to such question referred to this court may be either affirmative or negative and it should normally settle a pattern of guidance both for the Revenue as well as the assessee. Factual, controversies should not be allowed to be converted into legal issues only by employing legal language in such a manner which is usual to the forming of such questions. References in this regard can be made to the case of Commissioner of Income Tax v. Messrs Immion International, Lahore 2001 PTD 900 and Japan Storage Battery Limited v. Commissioner Income Tax 2003 PTD 2849. Further reliance can be made to the cases reported as Collector of Customs, Port Muhammad Bin Qasim, Karachi v. Kaghan Ghee Mills (Pvt.) Ltd reported in 2008 SCMR 1538 and Collector of Customs v. Qasim International Container Terminal (Pak) Ltd. reported in 2013 PTD 392 (SHC).

5.Under the circumstances, we decline to exercise our jurisdiction. Reference application is decided against the Applicant.

6.Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 496(5) of the Act.

MWA/C-2/L Order accordingly.