GULISTAN TEXTILE MILLS LIMITED VS FEDERATION OF PAKISTAN
2019 P T D 353
[Lahore High Court]
Before Shahid Karim, J
Messrs GULISTAN TEXTILE MILLS LIMITED
Versus
FEDERATION OF PAKISTAN and others
Writ Petitions Nos.67182, 95144 of 2017, 218646, 136806, 136736, 205774 and 227754 of 2018, decided on 30/11/2018.
(a) Customs Act (IV of 1969)---
----Ss.32 & 179---Interpretation of Ss.32 & 179 of Customs Act, 1969---Recovery of Income Tax and Sales Tax by Customs officer(s)---Powers of adjudication under the Customs Act, 1969---Interpretation of Ss. 32 & 179 of the Customs Act, 1969---Expansion in powers of adjudication of Customs officer(s) in respect of Income Tax and Sales Tax liability of importers ----Scope--- Petitioners / importers impugned show-cause notice under S. 32 of the Customs Act, 1969 for recovery of Income Tax and Sales Tax---Contention of petitioners, inter alia, was that Collectorate of Customs (Adjudication) did not have the jurisdiction to decide liability of the petitioners in respect of payment of any amount of sales or income tax as said amounts could only be recovered by initiating proceedings under the respective laws under which they had been imposed---Validity---Statutory amendments whereby word "taxes" was inserted first in S. 179 and subsequently in S. 32 of the Customs Act, 1969 were to be taken as reasoned and deliberative policy making by the Legislature and could not be ignored---Said words had been woven in the fabric of the Customs Act, 1969 to achieve a purpose and Court must interpret same words in such a manner so as to give effect to the purpose and policy underlying such amendments----Under said amendments power of adjudication was materially expanded not only to include the power of recovery of customs duty but also other "taxes"---Said provisions were amended in such a way that the word "taxes" was added so as to confer jurisdiction on the officers of Customs for making adjudication in respect of taxes which had been levied or had been short-levied and officers of Customs, therefore, acted as the collecting agents for the income tax and sales tax authorities from every importer of goods on the value of goods at rate(s) specified---Constitutional petitions were dismissed, in circumstances.
PLD 1957 SC (Pak) 219 at 233 rel.
(b) Interpretation of statutes---
----Principles of construction---Additions, insertions through Legislative amendments--- Scope---Redundancy could not be attached to any words added by the Legislature in a statute and where Legislature has added certain words subsequently, intention could very well be gathered that such words had been added with a purpose and in order to achieve a goal---Textually permissible interpretation that furthers rather than obstructs the purpose of enactment should be favoured---Interpretation always depends on context, and context always included evident purpose, and evident purpose always included effectiveness---Every word had to be given effect and the courts cannot subtract or add any word in a statute.
Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner; Surplusage Canon and United States v. Butler 297 US 1, 65 (1936) rel.
(c) Interpretation of statutes---
----Tax statute---Statutory powers of adjudication----Overlap of such powers---Scope---Mere fact that a power had been conferred on an officer to initiate an action in respect of recovery of tax did not, ipso facto, mean that such was the only power which could be exercised and no other power or jurisdiction could be exercised to effect recovery of such a tax---Powers which vested in different authorities were not mutually destructive but complementary to each other and unless the Legislature clearly provided to the contrary, such powers could be exercised without prejudice to any other power conferred under the law.
Mehmood Arif, M. Baqir Hussain, Mehmood Ahmad and Muhammad Naeem Munawar for Petitioners.
Ch. Muhammad Zafar Iqbal, Iftikhar Ahmad Mughal, Rana Muhammad Mehtab, Sh. Izhar ul Haq, Sarfraz Ahmad Cheema, Ch. Imtiaz Elahi and Nabeel Rafaqat Ch. for Respondents.
Nasar Ahmad, D.A.G. for Respondents.
Date of Hearing: 6th November, 2018.
JUDGMENT
SHAHID KARIM, J.---This petition and connected petitions W.P. No.95144 of 2017, W.P. No.218646 of 2018, W.P. No.136806 of 2018, W.P. No.136736 of 2018, W.P. No.205774 of 2018 and W.P. No.227754 of 2018 raise a common question of law and are being decided by a common judgment.
The Issue:
2.The question relates to the construction of the word "taxes" mentioned in section 32 of the Customs Act, 1969 (Act, 1969). That word was added in the entire section 32 wherever the context required and has been inserted by Finance Act, 2014. By way of illustration, sub-section (2) of section 32 is reproduced below and around which the entire controversy revolves:
"32(2) Where, by reason of any such document or statement
as aforesaid or by reason of some collusion, any duty,
taxes or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 73[five] years of the relevant date, requiring him to show-cause why he should not pay the amount specified in the notice."
3.It can be seen from a reading of section 32(2) reproduced above that a person liable to pay any amount of duty or taxes or other charges which has not been levied or has been short levied or has been erroneously refunded, shall be served with a show-cause notice requiring him to show-cause why he should not pay the amount specified in the notice. The petitioners have been served with a show-cause notice (the dates are different in all cases but that has no bearing on the outcome of these petitions) whereby proceedings have been set in motion under Section 32 of the Act, 1969 requiring the petitioners to show cause as to why certain amounts of sales tax and income tax should not be recovered from them. The challenge of the petitioners is premised on the proposition that an officer of Customs or more precisely the Collector, Collectorate of Customs (Adjudication) does not have the jurisdiction to enter upon and decide the liability of the petitioners in respect of payment of any amount of sales tax or income tax as these amounts can only be recovered by initiating proceedings under the respective laws under which they have been imposed, viz. Sales Tax Act, 1990 (Act, 1990) and Income Tax Ordinance, 2001 (Ordinance, 2001). The proposition would have been a simple one had the amendment of 2014 by insertion of the word "taxes" not been made in section 32 of the Act, 1969.
The Facts:
4.The facts can be stated shortly. It will not be relevant to state the facts of each petition separately. For the sake of brevity the facts brought forth in W.P No.67182 of 2017 are being narrated. The petitioner is a manufacturer-cum-exporter of yarn and has been carrying out business under "Duty and Tax Remission for Export" rules contained in sub-chapter VII of Chapter XII of the Customs Rules, 2001 notified by Federal Board of Revenue (FBR) through SRO 450(I)/2001 dated 18.06.2001. This scheme will hereinafter be referred as DTRE Scheme and under which the FBR has allowed the manufacturer-cum-exporter to procure tax free input goods to be used in the manufacturing of goods meant for export subject to the conditions and other restrictions prescribed therein. The petitioner imported Polyester Staple Fiber used in the manufacturing of PC yarn meant for export through 8 GDs during the period from July to November, 2011 and got their clearance without payment of customs duty, sales tax and advance income tax. An audit was conducted in respect of the petitioner and pursuant to the audit of the record of the petitioner a show-cause notice dated 16.6.2017 was served on the petitioner by the Collector of Customs (Adjudication) containing allegations with respect to alleged short levy of sales tax as well as income tax. To reiterate, the petitioners in these petitions challenge the authority of the Collector to adjudicate upon show-cause notice as according to the learned counsel for the petitioners the essential jurisdictional facts do not exist so as to confer the jurisdiction on the Collector to proceed in the matter.
The arguments and statutory provisions:
5.The arguments which featured in the case will be adverted to during the course of this opinion and are not required to be reproduced. In a nub, the centrality of those arguments revolved around challenge to the authority of the Collector to proceed with the adjudication on the ground that the matter of recovery of taxes under the Act, 1990 and the Ordinance, 2001 vests in the authorities and forms set up under those statutes and the Collector, Collectorate of Customs having been empowered under the Act, 1969 neither has the jurisdiction nor the power to either adjudicate on the matter or to order the recovery of those taxes.
6.Certain provisions of the three statutes will have a gravitational pull on the controversy being decided through this judgment. The legal landscape may be referred to firstly in order to understand the precise scope of the controversy and lend actuality to the dispute.
7.By a Notification SRO 886(I)/2012 dated 28.07.2012 the FBR has directed that the Collector, Collectorate of Customs (Adjudication) shall adjudicate cases relating to amounts falling in the jurisdiction of Collectorates and Directorates mentioned in column 3 of the Table in that notification. However, this notification is relevant only to the extent of conferring territorial jurisdiction on the respective Collectorates. The source of power of adjudication which vests in these Collectorates can be traced to section 179 read with section 32 of the Act, 1969. Section 179, so far as relevant, provides that:-
179. Power of adjudication.---(1) Subject to subsection (2), in cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under this Act or the rules made thereunder, the jurisdiction and powers of the officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows, namely.."
8.Priorly, section 179 read as follows:
"(1) Subject to subsection (2), in cases involving confiscation of goods or imposition of penalty under this Act or the rules made thereunder, the jurisdiction and powers of the Officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows:--"
9.A juxtaposition of the two provisions, one the current form and the other prior to its substitution would show that an amendment was made through the Finance Act, 2012 by which a change was brought about in subsection (1) of section 179 and the contours of the powers of the Collector were expanded. It will be seen that prior to its amendment, the jurisdiction of the Collectorates merely extended to cases involving "confiscation of goods or imposing of penalty under this Act or the rules made thereunder". By the amendment the jurisdiction was extended to cases involving not only confiscation of goods but also to recovery of duty and other taxes, not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under the Act or the rules made thereunder. As if this was not enough the provision went on to stipulate that the jurisdiction and powers of the officers of Customs in terms of amount of duties and "other taxes" involved shall be as mentioned in subsection (1) of section 179. Thus, what is discernible at once is the fundamental change brought about in section 179 by conferring jurisdiction on the Collector of Customs to recover duty and other taxes not levied or short levied. The words "other taxes" inserted in section 179 are of paramount significance. They are presumed to have been brought in by a reasoned and deliberative policy making by the legislature and cannot be ignored to make a fetish of that process. These words have been woven in the fabric of the Act, 1969 to achieve a purpose and the Courts must interpret these words in such a manner so as to give effect to the purpose and policy underlying the amendment. This case is about the proper interpretation to be put on these words by this Court. It was said by Chief Justice Muhammad Munir in PLD 1957 SC (Pak) 219 at 233 that:
"Ever since man learnt to express his feelings and the thoughts in words, the function of the person to whom the words are addressed, a function of which he is scarcely conscious, has been to understand what is intended to be conveyed by the speaker; but ever since law began to be written the duty of those to whom it is addressed or who are called upon to expound it has been to discover the intention of the law giver."
10.Although the amendment in section 179 had been made in the year 2012 by the addition of the words "other taxes" and their recovery while conferring jurisdiction and power on the officers of Customs, a corresponding amendment was not made in section 32 which is a provisions conferring powers of adjudication on the Collectorates (Adjudication). This amendment, as explicated, was made by Finance Act, 2014 and the word "taxes" was inserted wherever it was thought necessary to be done by the legislature. This completed the essential nexus between section 32 and section 179 and necessarily filled the void which existed prior to the said amendment. This was done to remove the unsavory effect that while the officers of Customs had the pecuniary jurisdiction to proceed to recover duties and other taxes not levied or short levied yet could not issue a show-cause notice under Section 32 so as to require the person in default to pay the amount of sales tax and income tax specified in the notice for no such power could be culled out from section 32.
11.The learned counsel for the petitioners referred to section 148 of the Ordinance, 2001 which empowers the Collector of Customs to collect advance tax from every importer of goods on the value of goods at the rate specified in Part II of the First Schedule. This provision merely mandates the Collector of Customs to collect the advance tax from the importer of goods and does not relate to the recovery of any such amount subsequent to the importation of goods in case the advance tax has not been levied or recovered. The learned counsel also made a reference to section 162 of the Ordinance, 2001 which recites that:
"162. Recovery of tax from the person from whom tax was not collected or deducted.---(1) Where a person fails to collect tax as required under Division II of this Part or Chapter XII or deduct tax from a payment as required under Division III of this Part or Chapter XII, the Commissioner may pass an order to that effect and recover the amount not collected or deducted from the person from whom the tax should have been collected or to whom the payment was made.
(2) The recovery of tax under subsection (1) does not absolve the person who failed to deduct tax as required under Division III of this Part or Chapter XII from any other legal action in relation to the failure, or from a charge of 10[default surcharge]or the disallowance of a deduction for the expense to which the failure relates, as provided for under this Ordinance."
12.The above provision indeed gives power to the Commissioner to pass an order for the recovery of the amount of income tax which has not been collected or deducted from the person from whom tax should have been collected or whom the payment was made. However, the said provision clearly provides that the recovery of tax under subsection (1) does not absolve the person who failed to deduct tax as required under Division III of this Part or Chapter XII from any other legal action in relation to the failure or from a charge of default surcharge as provided under the Ordinance, 2001. In this case, admittedly, no proceedings in terms of section 162 were initiated by the Commissioner concerned and the arguments of the petitioners proceed on the assumption that sufficient powers vest in the Commissioner to recover the taxes from the person from whom tax was not collected or deducted under Section 162 and therefore the powers being exercised by the Collector of Customs under Section 32 cannot be set in motion or initiated against the petitioners. This argument has no legal basis and cannot be countenanced. The mere fact that a power has been conferred on an officer to initiate an action in respect of recovery of tax does not, ipso facto, means that that is the only power which can be exercised and no other power or jurisdiction can be exercised to effect recovery of the tax which has not been levied or short levied. Plainly, the powers which vest in different authorities are not mutually destructive but complementary to each other and unless the legislature clearly provides to the contrary, those powers can be exercised without prejudice to any other power conferred under the law. If the argument of the petitions was to prosper, then all proceedings of recovery, except one under Section 162, would be deemed to be barred even under the Ordinance, 2001. No such prohibition can be read into section 162.
13. Of critical importance is another amendment which was made in section 6 of the Act, 1990. By Finance Act, 2015 the words "including recovery" were added to the said provision which now reads as under:--
"6. Time and manner of payment.---(1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 and the provisions of the said Act including section 31A thereof, shall, so far as they relate to collection, payment and enforcement including recovery of tax under this Act on such goods where no specific provision exists in this Act, apply."
14.Thus, prior to the amendment, section 6 merely provided that the tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 and that the provisions of the Act, 1969 so far as they relate to collection, payment and enforcement of tax shall apply. Later on by the Finance Act, 2015 the words "including recovery" were added by which the inevitable intention sought to be conveyed by the legislature was that the provisions of the Act, 1969 shall also apply in respect of recovery of tax to be paid under the Act, 1990. There could not be any other intention so clearly and unequivocally expressed by the legislature in inserting the words "including recovery of taxes" in section 6 of the Act, 1990 which for all intents and purposes confer the jurisdiction in respect of recovery of tax on the officer of Customs exercising jurisdiction under the Act, 1969. Thus the policy of the Act, 1990, post-amendment, seems to be to confer the powers of recovery in the hands of the Officers of Customs in respect of sales tax levied on imported goods. This has been carved out of the general power to adjudicate matters of sales tax recovery vesting in the Officers of Sales Tax and is part of the entire scheme of things by which amendment was made in different statutes so as to create a seamless web of statutory enterprise. In short, matters relating to recovery of all imposts at the stage of importation are sought to be entrusted to one class of Officers and regulated by a single law.
15.This brings us to the related submission of Mr. Nasar Ahmad, Deputy Attorney General who also read section 11 of the Act, 1990 which states that:
"11. Assessment of Tax and Recovery of Tax not levied or short levied or erroneously refunded.---(1) Where a person who is required to file a tax return fails to file the return for a tax period by the due date or pays an amount which, for some miscalculation is less than the amount of tax actually payable, an officer of Inland Revenue shall, after a notice to show cause to such person, make an order for assessment of tax, including imposition of penalty and default surcharge in accordance with sections 33 and 34:
Provided that where a person required to file a tax return files the return after the due date and pays the amount of tax payable in accordance with the tax return along with default surcharge and penalty, the notice to show-cause and the order of assessment shall abate.
(2) Where a person has not paid the tax due on supplies made by him or has made short payment or has claimed input tax credit or refund which is not admissible under this Act for reasons other than those specified in subsection (1), an officer of Inland Revenue shall after a notice to show-cause to such person, make an order for assessment of tax actually payable by that person or determine the amount of tax credit or tax refund which he has unlawfully claimed and shall impose a penalty and charge default surcharge in accordance with sections 33 and 34.
(3) Where by reason of some collusion or deliberate Act any tax or charge has not been levied or made or has been short levied or has been erroneously refunded, the person liable to pay any amount of tax or charge or the amount of fund erroneously made shall be served with the notice requiring him to show cause for payment of the amount specified in the notice.
(4) Where, by reason of any inadvertence, error or misconstruction any tax or charge has not been levied or made or has been short-levied or has been erroneously refunded, the person liable to the amount of tax or charge or the amount of refund erroneously made shall be served with a notice requiring him to show cause for payment of the amount specified in the notice:
Provided that, where a tax or charge has not been levied under this subsection the amount of tax shall be recovered as tax fraction of the value of supply.."
16.The precise submission was that section 11 which relates to the assessment of tax and recovery of tax not levied or short levied or erroneously refunded under the Act, 1990, merely restricts to the supply of goods and not to the import of goods for which the proceedings can only be undertaken by the Collector of Customs under the provisions of the Act, 1969. This argument runs an ingenious course as the reading of subsection (1) of section 11 inevitably conveys an impression that the recovery of taxes and any proceedings to be taken under Section 11 have to be in respect of the tax due on supplies made by a registered person and not imports made by the said person. Yet a holistic reading of the entire section 11 would show that the argument has little constituency and cannot prosper. Subsections (3) and (4) do not speak to supplies only and so the word 'supplies' cannot be read into those provisions. They simply refer to any tax or charge which has not been levied or has been short-levied. There is no reason to doubt that the show-cause notice may be issued in respect of an amount of sales tax required to be paid at the import stage. Another reason to regard the argument as untenable is that prior to the amendments in the Act, 1969, section 11 was the only provision under which the recovery was made and the amendments have only the effect of conferring concurrent jurisdiction on the Officers of Customs. That jurisdiction can be exercised either by the Officers of Sales Tax or Customs. There is nothing in section 11 of the Act, 1990 which is a provision in pari materia Section 32 of the Act, 1969 relating to the adjudication of disputes which in any manner prohibits the proceedings to be taken under Section 32 of the Act, 1969 in respect of recovery of sales tax or income tax short levied nor does it preclude an adjudicative process to be undertaken by the Collector of Customs.
17.However, the central question animating these petitions is to locate and ascertain the true intention of the legislature in adding the word "taxes" to sections 32 and 179 of the Act, 1969. The first principle that comes to mind while placing a construction on the said provisions is a well-worn rule that redundancy cannot be attached to any words added by the legislature in a statute. In particular if the legislature has added those words subsequently, the intention can very well be gathered that the words have been added with a purpose and in order to achieve a goal.
18.It is a settled canon of construction that "a textually permissible interpretation that furthers rather than obstructs the documents purpose should be favoured". Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner, elaborates the canon thus:
"This canon follows inevitable from the facts that (1) interpretation always depends on context, (2) context always includes evident purpose, and (3) evident purpose always includes effectiveness."
19.The same treatise refers to another rule of interpretation vouched by superior Courts and which, more than any other, compels this Court to hold that the word "taxes" has a consequence and cannot be ignored. It is known as the Surplusage Canon and has been described as follows:
"If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
The surplusage canon holds that it is no more the court's function to revise by subtraction than by addition. A provision that seems to the court unjust or unfortunate (creating the so-called ca-sus made inclusus) must nonetheless be given effect. As Chief Justice John Marshal explained: "It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation." Or in the words of Thomas M. Cooley: "The courts mustclean in favour of a construction which will render every word operative, rather than one which may make some idle and nugatory." This is true not just of legal texts but of all sensible writing: :Whenever a reading arbitrarily ignores linguistic components or inadequately account for them, the reading may be presumed improbable."
"Lawyers rarely argue that an entire provision should be ignored---but it does happen. For example, in Fortec Constructors v. United States, the quality-control paragraph of a construction contract with the Army read as follows:
All work ... shall be subject to inspection and test by the Government at all reasonable times and at all places prior to acceptance. Any such inspection and test is for the sole benefit of the Government and shall not relieve the Contractor of the responsibility of providing quality control measures to assure that the work strictly complies with the contract requirements. No inspection or test by the Government shall be construed as constituting or implying acceptance.
When the Army demanded that the contractor demolish and reconstruct non-compliant work, the contractor protested that the on-site Army inspector had failed to notify Fortec of the defects and that this silence constituted an acceptance of the original work. The court correctly rejected this argument:
To agree with Fortec's contention would render clause 10 meaningless. This court must be guided by the well accepted and basic principle that an interpretation that gives a reasonable meaning to all parts of the contract will be preferred to one that leaves portions of the contract meaningless. Therefore, Fortec's contention is rejected for being inconsistent with contract clause 10. The Corps quality assurance inspections did not constitute an acceptance of the work."
20.It was held in United States v. Butler, 297 US 1, 65 (1936) (per Roberts, J) that:
"These words cannot be meaningless, else they would not have been used."
21.The observations reproduced above convey in the most basic sense the rule that every word has to be given effect and the courts cannot subtract or add any word in a statute.
22.As adumbrated, there is a chronology of events which clearly depicts a conscience attempt on the part of the legislature to add the word "taxes" in the scheme and structure of the Act, 1969. For instance, section 179 prior to its amendment by Finance Act, 2012 so far as relevant, did not confer jurisdiction on the officers of Customs in respect of recovery of duty and other taxes not levied, short levied or erroneously refunded. Thus, by the amendment brought about in the year 2012 the jurisdiction of the officers of Customs was expanded to include adjudication of cases relating to recovery of duty and other taxes and did not remain confined to cases involving confiscation of goods or imposition of penalty "under this Act or the rules made thereunder." (underlining supplied). Thus, the power of adjudication was materially expanded not only to include the power of recovery of duty but also other taxes. At that time section 32 did not chime well with the amended section 179. This was realized by the legislature and through Finance Act, 2014 section 32 was amended in such a way that the word "taxes" was added so as to confer jurisdiction on the officers of Customs for making adjudication in respect of taxes which had been levied or had been short-levied. It cannot be urged by the petitioners that this was without any purpose or done thoughtlessly by the legislature. If by oversight section 179 had been amended to include the word "taxes" the legislature ought to have become wiser by excluding the word "taxes" from section 179 rather than making its intention clearer to the contrary by adding the word to section 32 as well, for, it is futile to confer the power of adjudication on officers of Customs while failing to make a corresponding change in the substantive provision and which also prescribes the procedure for carrying out the adjudication proceedings by the officers of Customs. Thus there is no doubt that the word "taxes" was included in the scheme of the Act, 1969 with a purpose and deliberately. It is admitted on all hands that no taxes are levied under the provisions of Act, 1969 and the only charge which has been imposed is the duty of customs under Section 18 of the Act, 1969, which prescribes the goods which are liable to imposition of customs duty prescribed in the first schedule. The provisions of section 18 also envisage the levy of regulatory duty as well as additional customs duty. However, the entire Customs Act, 1969 does not refer to the levy of taxes to which a reference could be made or a relation could be established vis-a-vis section 32 and section 179. As stated above in the preceding paragraphs, not only the Income Tax Ordinance, 2001 but also the Sales Tax Act, 1990 require the levy and recovery of withholding tax as well as sales tax imposed on the imported goods and for their recovery to be effected at the time of importation by the officers of Customs. The officers of Customs, therefore, act as the collecting agent for the income tax as well as sales tax authorities from every importer of goods on the value of goods at the rate specified. It was perhaps thought anomalous by the legislature that the recovery if any effected or short-levied be recovered by the adjudicative process in the Act, 1990 or the Ordinance, 2001 rather than the one prescribed in the Act, 1969. In my opinion the amendments which have been brought about merely serve to reconcile the powers of the officers of Customs and not only confers the power to recovery at the importation stage but also confers the power of adjudication under Section 32 of the Act, 1969.
23.Notwithstanding the above, the argument raised by the petitioners would, at best, result in conferring a concurrent jurisdiction on the officers under the Ordinance, 2001 and the Act, 1990 together with the officers of Customs under Section 32 of the Act, 1969. It has not been asserted by the petitioners that conferring of the jurisdiction on the officers of Customs is ultra vires the provisions of the Constitution of Islamic Republic of Pakistan, 1973 and could not have been so conferred. If the power is concurrent, then the only plausible defence which may be taken is that the adjudicative process ought to be initiated by either of the adjudication offices and not by both. Or that a determination by one would operate as preclusion in respect of a subsequent adjudication on the same issues.
24.In view of the above, these petitions are without merit and are dismissed.
KMZ/G-15/LPetitions dismissed.