ZAINAB DF (PVT.) LIMITED VS CUSTOMS APPELLATE TRIBUNAL, LAHORE, 2018 PTD-LAHORE-HIGH-COURT-LAHORE 1742 (2018)

Customs Act (IV of 1969)---

----Ss. 13(3), 179 & 195---Reference---Private warehouse license---Administration of justice---Applicant was a licensee of private customs warehouse and was running duty free shop---Grievance of applicant was that authorities had cancelled his license and his appeal was dismissed on the ground that remedy of appeal was not available against order passed under S.13(3) of Customs Act, 1969---Validity---Applicant could not be left remediless against order in question, when the same was required, to be examined, in the interest of justice, at least by one independent technical forum---Remedy under Art.199 of the Constitution was available in absence of alternate remedy---High Court directed the Federal Board of Revenue to take cognizance of action in question by authorities to satisfy itself as to legality or propriety of decision in question---Section 195(1) of Customs Act, 1969, required a suo motu notice by Federal Board of Revenue, yet such provision did not stop the High Court, while exercising inherent jurisdiction from referring the matter to Federal Board of Revenue for revision of order in question after providing opportunity of hearing to applicant---Reference was allowed accordingly.

Province of Punjab through Secretary to Government of Punjab, Communication and Works Department, Lahore and another v. Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs PLD 2017 SC 53; Muhammad Sadiq through his Legal Representatives v. Pakistan through Collector, Rawalpindi and 2 others 1988 CLC 123 and Zahiruddin v. Emperor PLD 1947 Privy Council 13 ref.

Zia Haider Rizvi and Muhammad Akhtar for Applicant.

Nadeem Mehmood Mian for Respondents.

Date of hearing: 9th April, 2018.

JUDGMENT

SHAHID JAMIL KHAN, J---Judgment dated 25.09.2017, passed by Customs Appellate Tribunal, Bench-II, Lahore ("Appellate Tribunal") is assailed, whereby applicant's appeal was rejected on the point of jurisdiction and case was referred to Federal Board of Revenue ("FBR") under Section 195 of the Customs Act, 1969 ("Act of 1969"), after converting the appeal into review application.

2.Brief facts are that the applicant was granted license of Warehouse under section 13 of the Act of 1969. The applicant was running Duty Free Shop, under the license, at Allama Iqbal International Airport, Lahore. After four years from its issuance, a show-cause notice was issued under section 13(3) of the Act of 1969, by the Collector of Customs, confronting contraventions of the terms of 'License' as well as of relevant `Provisions/Rules'. Being dissatisfied with the reply to show-cause notice, order for cancellation of license was passed. Show-cause notice for recovery of alleged evaded duties was also issued, as a consequence, and demand was created through another order in separate proceedings, which are pending adjudication before the Appellate Tribunal. The order under section 13(3) for cancellation of license was assailed separately. The Appellate Tribunal, instead of deciding the appeal on merits, dismissed the same on technical ground that appeal against an order under section 13(3) was not available under section 194A. However, the matter was referred to FBR, after converting the appeal into review, for consideration and decision in accordance with law.

3.Learned counsel for the applicant submitted that order for cancellation of license under section 13(3) of the Act of 1969 is an order under Section 179, therefore, remedy of appeal was available before the Appellate Tribunal under section 194A. Subsection (1) of section 179 was read in support and emphasis was laid on the phrase "any other contravention under this Act or the Rules made therein." It was argued that order under section 13(3) was passed on the basis of certain contraventions under the Act, therefore, this order has to be read in Section 179 for the purpose of appeal. It is also argued that no one can be left remediless because, "where there is wrong there is remedy" is the basic principle of law. Reliance is placed on the cases reported as Province of Punjab through Secretary to Government of Punjab, Communication and Works Department, Lahore and another v. Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs (PLD 2017 Supreme Court 53), Muhammad Sadiq through his Legal Representatives v. Pakistan through Collector, Rawalpindi and 2 others (1988 CLC 123) and Zahiruddin v. Emperor (PLD 1947 Privy Council 13).

4.Learned counsel for the respondents supported the impugned decision. He submitted that order passed under Section 13(3) of the Act of 1969 is an order on executive side, whereas Section 179 provides for the jurisdiction of Adjudicating Authorities. It was argued that Section 13 could not be read in Section 179. He placed reliance on Sugi (Pvt.) Limited v. Collector of Customs (2011 PTD 2839) and DG Customs Valuation, Karachi v. Trade International Lahore (2014 PTD 174), in support of his arguments. By placing reliance on Sugi (Pvt.) Case (supra), learned counsel submits that similar order for cancellation of license was assailed through writ jurisdiction.

5.Heard. Record perused.

6.Provisions of Section 13(3) and Section 179 (1) need interpretation, therefore, are reproduced hereunder:-

"13. Power to license private warehouses.

(1) .

(2) .

(3) A license granted under this section may be cancelled by the Collector of Customs for infringement of any condition laid down in the licence of for any violation of any of the provisions of this Act or any rules made thereunder after the licensee has been given proper opportunity of showing cause against the proposed cancellation."

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:--

7.Caption of Section 179 of the Act of 1969 clearly tells that jurisdiction of adjudication has been conferred upon various authorities under the Act of 1969. The Collector is one of the Adjudicating Authority, who has been conferred with jurisdiction without any pecuniary limit.

It is not denied by applicant's side, on Court's query, that notification of adjudicating authorities is required to be issued in pursuance of this section from time to time and that the Collector Customs, who passed order under section 13(3), was not notified to be an Adjudicating Authority as defined under section 2(a) of the Act of 1969. On the contrary, section 13 is itself conferring jurisdiction upon the Collector for issuance of license under Subsection (1) and cancellation under subsection (3) of section 13 of the Act of 1969. The Collector, who passed the impugned order was a Collector on Executive/ Administrative side as defined under section 2(o) of the Act of 1969.

8.In our opinion, provisions of Section 13 and Section 179 are independent and distinct, dealing with different powers/subjects. section 13 deals with licensing for private warehouse and its cancellation. Jurisdiction, for the purpose, is conferred upon the Collector. Whereas section 179 deals only with the jurisdiction of Adjudicating Authority which has been capped with pecuniary limits (except jurisdiction of Collector) of leviable duties/taxes required to be adjudicated upon.

9.In our view, contravention as envisaged under section 13(3) of the Act of 1969 cannot be read with the contravention envisaged under Section 179(1). The conclusion arrived by the Appellate Tribunal that appeal was not available to the applicant against cancellation of license is found correct. The judgments referred by learned counsel for the applicant are found not relevant to the facts of this case.

10.Without commenting upon powers of the Appellate Tribunal to converting the appeal into review, we agree with the submissions, by learned counsel for the applicant, that applicant could not be left remediless against the impugned order, particularly, when impugned order is required, in the interest of justice, to be examined, at least by one independent technical forum. Notwithstanding that remedy under Section 199 of the Constitution of Islamic of Pakistan, 1973 is available, in absence of alternate remedy, however, in our opinion, FBR should take cognizance of the impugned action by the Collector/subordinate authority to satisfy itself as to the legality or propriety of impugned decision.

Though subsection (1) of Section 195 requires a suo-motu notice by FBR, yet this provision does not stop this Court while exercising inherent jurisdiction from referring the matter to FBR for revision of the impugned order after providing opportunity of being heard to the applicant. We order accordingly and direct the applicant to approach FBR with copy of this Court's order.

An opportunity of being heard shall be provided to the applicant and matter shall be decided through speaking order. It is expected that the decision shall be given as expeditiously as possible preferably within 60-days from receipt of this order.

Disposed of

11.Office shall send a copy of this order under seal of the Court to the Customs Appellate Tribunal as per section 196(5) of the Customs Act, 1969.

MH/Z-16/L Order accordingly.