ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

S.C.R.A. No. 248 of 2008

Date Order with signature of Judge

1. For orders on CMA No.1930/09.

2. For Katcha Peshi.

01.12.2009

Mr. Usman Shaikh, Advocate for the applicant.

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GULZAR AHMED, J.:- This reference application has been filed against the order dated 31.5.2008 of the Customs, Excise & Sales Tax Appellate Tribunal, Bench-III, Karachi in which following questions of law have been raised:

1. Whether any objection which are not raised at the time of filing of appeal can be raised at the rime of final bearing and whether on the said objections can the appeal be disposed off without giving a due chance to rectify the said objections?

2. Whether on the facts and circumstances of the case, the learned Tribunal ignored the evidence available on record while passing the impugned Judgment?

3. Whether the impugned judgment is a speaking order in terms of Section 24(A) of General Clause Act?

The first ground urged in support of this special customs reference application is that the office of the Customs, Central Excise and Sales Tax Appellate Tribunal did not raise any objection with regard to the defect in the memo of appeal and, secondly, that the Tribunal was not justified in dismissing the appeal of the applicant on technical ground rather than deciding it on merit.

It appears that the applicant has challenged the order-in-original No. 25 of 2001, dated 31.1.2001, passed by the Additional Collector of Customs, Sales Tax and Central Excise (Adjudication-I), Karachi, by filing an appeal before the Customs, Excise and Sales Tax Appellate Tribunal at Lahore. Such appeal, apparently, was filed on 31.5.2001 and, subsequently, it was transferred to the Karachi Bench of the Tribunal. Subsequently, when the appeal was transferred to Tribunal’s Bench at Karachi, vakalatnama of Mr. Muhammad Ishaque, Advocate was filed which contained the signature of the proprietor of the appellant. The appeal was heard on 14.4.2008 by the Tribunal at Karachi and, through the impugned order dated 31.5.2008, it was dismissed on the ground that the appeal was not signed by the appellant or by any authorized person of the applicant but was signed by Mian Abdul Ghaffar, Advocate whose vakalatnama filed with the appeal, did not bear the signature of the appellant. The Tribunal found that the appeal to be not maintainable and this respect relied upon two judgments namely PLD 1971 SC 550 and PLD 1997 Kar. 62.

On our query to the learned counsel for the applicant, as to why the appellant did not remove the defect in the appeal while it was pending, he simply stated that it was not done because no objection in this respect was raised by the office of the Tribunal. We then asked him to show us rule or law requiring the office of the Tribunal to raise such objection, he was unable to cite any. The counsel for the applicant also contended that as Mian Abdul Ghaffar, Advocate was conducting the case of applicant before the lower forum and therefore there was no need for the applicant to sign the appeal as filing of the appeal by applicant’s counsel will be competent. On our examination of the record, we find that at the stage of order-in-original the applicant was represented by one Sh.Mudassar Hanif, Clearing Agent and not by Mian Abdul Ghaffar, Advocate. The applicant’s counsel was completely unable to show us any material or law on the basis of which the appeal could be considered to have been validly filed or that the defect in it could be cured by this Court while hearing reference in terms of Section 196 of the Customs Act, 1969.

Be that as it may, Section 194-A of the Customs Act, 1969 provides for filing of the appeal before the Appellate Tribunal by an aggrieved person. The appeal being a substantive and statutory right vests in an aggrieved person who himself or through his authorized representative has to approach the forum provided by law for filing of the appeal. If the appeal is not filed by the aggrieved person himself or by his authorized representative, apparently the same will not be maintainable in law. No authority was shown to exist in favour of Mian Abdul Ghaffar, Advocate to file appeal before the Appellate Tribunal on behalf of the applicant to the extent that his vakalatnama was not signed by the applicant.

In the case of DIRECTOR, DIRECTORATE-GENERAL OF INTELLIGENCE AND INVESTIGATION V/S MESSRS AL-FAIZ INDUSTRIES (PVT.) LIMITED (2006 SCMR 129) the Hon’ble Supreme Court has elaborately considered the question of maintainability of reference application under Section 196 of the Customs Act filed by a person other than the Collector mentioned in the said provision and came to the conclusion that the reference application having not been filed by the Collector, such reference application will not be maintainable. This view was founded by the Hon’ble Court, inter alia, on the principle of law that when the Legislature requires doing of a thing in a particular manner, then it has to be done in that manner and all other manners or modes of doing or performing that thing are barred. The Hon’ble Court found that non-filing of appeal by Collector is not mere irregularity which could be rectified by allowing the collector to sign the appeal.

On the principle as is laid down by Hon’ble Supreme Court in the above cited case, the appeal under provision of Section 194-A is required to be signed and filed by the aggrieved party himself or at best signed by an authorized representative of the aggrieved party and in case it is not done so, the appeal will not be maintainable in law. This being the state of law and the appeal in the present case having not been filed and signed by the applicant or by his authorized representative, the same will not be maintainable. Thus, we find no illegality in the impugned order and maintain the same and dismiss this reference application in limine. The listed application is also disposed off.

J U D G E