WORLD TRADE ENTERPRISES, CUSTOMS C&F AGENTS VS CUSTOMS APPELLATE TRIBUNAL BENCH-I, 2017 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 1472 (2016)

(a) Words and phrases---

----"Mutatis mutandis"---Connotation---Expression 'mutatis mutandis' is an adverbial phrase qualifying the verb 'shall apply' and meaning 'those changes being made which must be made', means necessary changes in point of detail were to be made when necessary---When law directs that a provision made for certain type of case would apply 'mutatis mutandis' in another type of that case, that would mean that expression 'mutatis mutandis' applies with such changes as may be necessary but not that even if no change be necessary, some changes nevertheless have to be made.

Vankatarama's Law Lexicon and Muhammad Sharif v. The State PLD 1999 SC 1063 rel.

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

----S. 196---Reference to High Court---Disposal of cases with single order---Grievance of importers was that authorities decided all matters on the basis of single order-in-original and Appellate Tribunal maintained such order---Validity---Administration of justice stipulated that a factual inquiry based on record for the purpose of adjudication had to be conducted---Adjudicating authorities in no case could direct that order/judgment rendered in a particular case would mutatis mutandis apply to any other case---Such could be termed as no order in the eyes of law as it seriously diminished the very purpose of adjudication as well as principles of natural justice, which always required formulation of speaking order by reflecting a discussion of a factual position and handing down of a judgment or a finding on such basis---Any order passed against norms of natural justice and having been passed by mis-exercise of jurisdictional domain would be perverse, fanciful, ridiculous, non-speaking and liable to be turned down---High Court set aside the orders as Appellate Tribunal had failed to follow principles of natural justice---High Court remanded the matters to the authorities for fresh adjudication and passing of orders-in-original---Reference was allowed accordingly.

Messrs Pakistan Telephone Cables Ltd. v. The Federation of Pakistan 2011 PTD 2849 and Messrs Prime Chemicals v. The Government of Pakistan 2004 PTD 1388 rel.

Sadbar Jan and Mazhar Ali Khan for Applicants.

Syed Ikhlaq Shah, Standing Counsel-II for Respondents.

Date of hearing: 28th April, 2016.

JUDGMENT

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---Through these references the applicants have called in question the judgment dated 13.08.2014 ("impugned judgment") passed by the Customs Appellate Tribunal, Bench-I ("respondent No.1"), whereby the customs appeals filed by the applicants against the orders-in-original dated 16.07.2012 (signed on 30.07.2012) passed by the Additional Collector, Customs Collectorate, Shaman Road Quetta ("respondent No.2") were decided in the following manner:--

"11. As observed above, these appeals are without merit, however, taking a lenient view, the appeals are allowed to the extent payment of withholding tax by the appellants. The rest of impugned order is upheld. In the above terms, all these appeals are disposed of."

2.The gist of allegation as set forth by the customs authorities is that upon directions issued by the Federal Tax Ombudsman to conduct inquiry in respect of export of rice by the applicants' firm through Taftan Border to Iran in excess of the quantity declared on the export document/Good Declaration (GD). The customs record of the National Logistics Cell (NLC) Dry Port Quetta was checked, whereby it was revealed the applicants in league with the Customs Clearing Agents and Customs Officials exported rice in excess of authorized export during the years 2008-2009 through different consignments. Consequently, the show cause notices dated 03.05.2012 and 02.05.2012 were issued to the applicants by the Additional Collectorate to show cause as to why action under clause (14) of Section 156 (1) of the Customs Act, 1969 should not be taken against them for violating the provisions of Section 32(2) of the Customs Act, 1969.

In response to the said notices the applicants joined the proceedings before the respondent No.2, as a result whereof the respondent No.2 passed the order-in-original dated 30.07.2012; that the applicants assailed the order passed by respondent No.2 before the respondent No.1, whereby the respondent No.1 passed the impugned judgment dated 13.08.2014 after partly modifying the impugned order-in-original.

Since the legal question involved in these references are interconnected, therefore these references are being decided together by this common judgment. The brief facts of each case are as under:

(1) Customs Reference Nos.30 and 45 of 2014:

Messrs Khawaja Trade Centre filed two GDs during the period from 31.10.2008 to 12.09.2009 through Messrs Frontier Enterprises Customs Clearing Agents, Quetta for export of 8433 Metric Tons (MT) Rice to Iran through Custom House, Taftan. Whereas, actually they exported 9930.73 MT in connivance with the Customs officials. Thus they exported 1497.73 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity in this way they evaded remittance of foreign exchange amounting to US$=1864800/-

(2) Customs Reference Nos.27 and 28 of 2014:

Messrs Iqbal Traders filed one GD during the period, on 03.09.2008 through Messrs World Trade Enterprises Customs Clearing Agents, Quetta for export of 3333 MT Rice to Iran through Custom House, Taftan. Whereas, actually they exported 4730.63 MT in connivance with the Customs officials. Thus they exported 1397.63 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$=2096445/-.

(3) Customs Reference Nos.29 and 34 of 2014:

Messrs Khan Business Impex filed two GDs during the period from 31.10.2008 to 08.08.2009 through Messrs Frontier Enterprises Customs clearing agents, Quetta for export of 5975 MT Rice to Iran through Custom House, Taftan. Whereas, actually they exported 6351.6 MT in connivance with the Customs officials. Thus they exported 376 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$=231828/-.

(4) Customs Reference No.31 of 2014:

Messrs Frontier Enterprises, Quetta filed five GDs during the period from 13.08.2008 to 15.05.2009 through Messrs Frontier Enterprises, Customs Clearing Agent, Quetta for export of 6715 MT Rice to Iran through Custom House, Taftan. Whereas actually they exported 9796.29 MT in connivance with the Customs officials. Thus they exported 3081.29 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$=2301562/-.

(5) Customs Reference Nos.32 and 35 of 2014:

Messrs Saif and Sons filed two GDs during the period from 05.01.2009 to 15.05.2009 through Messrs Frontier Enterprises, Customs Clearing Agent, Quetta for export of 12950 MT Rice to Iran through Custom House, Taftan. Whereas actually they exported 13727.79 MT in connivance with the Customs officials. Thus they exported 777.79 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$=388895/-.

(6) Customs Reference Nos. 33 and 37 of 2014:

Messrs Ibn-e-Usman Traders filed three GDs during the period from 16.10.2008 to 20.01.2009 through Messrs Frontier Enterprises, Customs Clearing Agent, Quetta for export of 17500 MT Rice to Iran through Custom House, Taftan. Whereas actually they exported 18594.66 MT in connivance with the Customs officials. Thus they exported 1094.66 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$---762662/-.

(7) Customs Reference No.36 of 2014:

Messrs Veals Importers and Exporters filed two GDs during the period from 01.07.2009 to 31.08.2009 through Messrs Haji Nasrou and Company, Customs clearing agents, Quetta for export of 16000 MT Rice to Iran through Custom House, Tartan. Whereas, actually they exported 16493.07 MT in connivance with the Customs officials. Thus they exported 493.07 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$=271188.5/-.

(8) Customs Reference Nos. 38 and 39 of 2014:

Messrs Shazad and Co. filed two GDs during the period from 23.02.2006 to 28.02.2006 through Messrs International Enterprises, Customs clearing agents, Quetta for export of 144 MT Rice to Iran through Custom House, Taftan. Whereas, actually they exported 310 MT in connivance with the Customs officials. Thus they exported 166 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$----36520/-.

(9) Customs Reference Nos.40 and 41 of 2014:

Messrs Muhibullah and Co. filed one GD during the period on 22.08.2009 through Messrs Haji Nasrou, Customs cleaning agents, Quetta for export of 500 MT Rice to Iran through Custom House, Taftan. Whereas, actually they exported 1040.5 MT in connivance with the Customs officials. Thus they exported 540.5 MT in excess of authorized export. They have also not remitted foreign exchange for excess quantity. In this way they evaded remittance of foreign exchange amounting to US$=297275/-.

3.In all these references identical points of law were raised by the applicants but at the time of preliminary hearing of these cases it was observed that in the customs hierarchy the order-in-original No.138 of 2012 dated 16.07.2012 was passed by the Additional Collector Customs, Quetta (respondent No.2) and while adjudicating upon the cases of Messrs World Trade Enterprises (applicant in Custom Reference No.27 of 2014) and Messrs Iqbal Traders (applicant in Customs Reference No.28 of 2014) the respondent No.2, in para 15 of the order-in-original reproduced the list of other cases of identical nature in seriatim and held that:--

"the following cases are also decided mutatis mutandis being identical in nature".

Keeping in view the jurisdiction of this court under Section 196 of the Customs Act, 1969 ("the Act") these cases were admitted to regular on the point of law as to "whether the law permits to copy down the operative part of one case and use it for the disposal of another case as done in all these cases, which have been disposed of on the assertions taken from another Order-in-original pertaining to another party".

4.The learned counsel for the applicant inter alia contended that a separate show cause notice with a distinct nature of allegation was issued against each applicant, but a common order-in-original was passed by the respondent No.2 without discussing the facts of each case separately and by reproducing the list of pending cases, it was held that the impugned order shall apply mutatis mutandis to all the cases being identical in nature; that the impugned order as well as the impugned judgment are based on non-reading and misreading of evidence; that neither the allegation was separately dealt with nor the defense raised by the applicants was discussed; that the Customs Appellate Tribunal endorsed the impugned order and passed the impugned judgment without assigning any cogent reason.

5.Learned Standing Counsel when confronted to the above, was unable to defend the impugned judgment-in-appeal and rather trying to formulate his points on basis of merits of the case.

6.Heard. Record perused.

7.Perusal of order-in-original, transpires that the respondent No.2 did not consider the subject matter by applying judicious mind; that the issues in dispute were pertaining to legal and factual controversy but the cases were decided arbitrarily only on the principle of mutatis mutandis without discussing the factual as well as legal controversies as pleaded by the parties. It looks that the respondent No.2 acted in non-bona fide manner and did not obey the mandate as contemplated under the Customs Act, 1969 and therefore, passed a non-speaking order without attending the points that had been controverted by the parties.

Unfortunately, the judgment-in-appeal passed by the Customs Appellate Tribunal (respondent No.1) has also failed to distinguish the facts of each case and passed the impugned judgment after partly modifying the impugned order-in-original.

8.It has been observed with grave concern that the adjudicating authority in the customs hierarchy is finalizing the cases on the principle of mutatis mutandis without adhering to the principles of natural justice and following the dictums laid down by the superior courts, which have elucidated time and again that every order/judgment should be passed on basis of factual and legal controversies involved therein. Since the order-in-original has been passed on the principle of mutatis mutandis, therefore, it would be advantageous to reproduce the definition of adverbial phrase mutatis mutandis, which runs as follows:--

"Mutatis Mutandis. When a new law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. (Vankataramaiya's Law Lexicon)

This expression being an adverbial phrase qualifying the verb 'shall apply' and meaning 'those changes being made' which must be made, means the necessary changes in point of detail are to be made when necessary. When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. Reference is made to the case of Muhammad Sharif v. The State (PLD 1999 SC 1063).

9.There is no cavil to the proposition that every case has its own facts and circumstances and separate order for each case should be made by the adjudicating authority. There was no justification for passing the order-in-original in so many cases through a single order. It is worthwhile to mention here that whenever vested authority is exercised in such a cursory manner than no other inference can be drawn except that the authority has transgressed its legal domain and has failed to consider the facts of the case with judicious mind.

On the touchstone of the above, the order-in-original passed by respondent No.2, who had remained in consideration of the matter, includes the words 'mutatis mutandis' in the penultimate para of the order, which is not only against the norms of justice, amount to mis-exercise of powers bestowed upon it but also violative to the concept of fair trial as contemplated under Article 10-A of the Constitution of Islamic Republic of Pakistan 1973, meaning thereby, that party to the lis was condemned unheard and right of fair trial protected under the Constitution has not been extended in his favour. While section 24-A of the General Clauses Act, 1897 would also be applicable in this case, which stipulates as under:--

24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."

10.Though, the law of prudence does not impose any embargo on handing down a consolidated judgment/order based on the similarity of legal proposition involved in the lis and nature of the issue in dispute, which can always come together but the facts and evidence seldom become similar and even if they are same still the prime object of dispensation of justice requires that similar facts and evidence should also be discussed and dealt with separately. This tendency of deciding the lis and to finalize the case on basis of the concept of mutatis matandis particularly in the customs hierarchy has become run of the mill so to speak. The principles of natural justice, the Constitution of Pakistan and Section 24-A of the General Clauses Act, 1897 altogether deprecate this tendency.

The administration of justice stipulates that a factual inquiry based on record for purpose of adjudication has to be conducted. The adjudicating authority in no case can direct that the order/judgment rendered in a particular case (s) shall mutatis mutandis apply to any other case (s). Thus, it will be termed as no order in the eyes of law as it seriously diminishes the very purpose of adjudication as well as the principle of natural justice, which always requires formulation of speaking order by reflecting a discussion of a factual position and handing down of a judgment or a finding on such basis. Therefore, any order, passed against the norms of natural justice and having been passed by mis-exercise of jurisdictional domain would be perverse, fanciful, ridiculous, non-speaking and liable to be turned down. Reference in this regard is made to the cases of Messrs Pakistan Telephone Cables Ltd. v. The Federation of Pakistan (2011 PTD 2849) and Messrs Prime Chemicals v. The Government of Pakistan (2004 PTD 1388).

We have also noticed that the appellate tribunal (respondent No.1) has also failed to follow the afore referred principles of natural justice, we are of considered opinion that the impugned judgment/orders cannot be sustained.

11.In view of the above the law point formed in Para-3 supra is resolved in negative.

For the above reasons the judgment-in-appeal dated 13.08.2014 passed by respondent No.1 as well as the orders-in-original dated 16.07.2012 (signed on 30.07.2012) passed by respondent No.2 are set aside to the extent of the applicants and these matters are remanded to the adjudicating authority i.e. respondent No.2 to decide the same afresh on merits in a accordance with law after affording opportunity of hearing to all the concerned. Copy of this judgment be sent to respondents Nos.1 and 2 for compliance.

MH/45/Bal. Case remande