Present:
Mr. Justice Syed Hassan Azhar Rizvi.
Mr. Justice Muhammad Junaid Ghaffar.
The Additional Director,
Directorate of Intelligence & Investigation FBR…………….….Applicant
VERSUS
Abdul Majeed & Another ………..………….………Respondents
Date of hearing: 15.1.2014.
Applicant: Through Mr. Muhammad Khalil Dogar Advocate.
O R D E R
Muhammad Junaid Ghaffar, J:- The applicant in the instant Special Custom Reference Application and all other connected Reference Applications has proposed the following questions of law purported to be arising out of the order of the Customs Appellate Tribunal, Karachi dated 22.5.2012 in Customs Appeal No. K-414/2005 and others:-
1) Whether, the learned Appellate Tribunal while concluding the impugned order has completely misunderstood the case and seriously erred in law to understand that the then Collector of Customs (Adjudication-II), abolished Collectorate of Customs, Central Excise & Sales Tax, Custom House, Karachi (Adjudicating Authority), prior to the adjudication of the case and imposition of fine / penalty, issued Show Cause Notice to the respondent No. 1, along with orders, in terms of Section 180 of the Customs Act, 1969?
2) Whether the Appellate Tribunal’s decision to hold the Shows Cause Notice as being void against the Clearing Agent, allegedly due to the Clearing Agent having not been assigned any specific role, is based upon misreading / non-reading of documentary evidences?
3) Whether it is not the violation of Section 215 of the Customs Act 1969, to deem the Show Cause Notice to have only been “ endorsed” and not “served” against the Clearing Agent, in the circumstances when it was simultaneously endorsed to all the respondents?
4) Whether the Clearing Agent, statutorily bound by Section 209 of the Customs Act, 1969 read with sub-rule (v) of Rule 102 of the Customs Rules 2001, can plead innocence when the offence of mis-declaration of description, quantity, value and weight, aimed at availing in admissible Duty Draw Back & Sales Tax Refund is established?
5) Whether the impugned order is not in violation of the principle as laid down by the Hon’ble Supreme Court of Pakistan in the case reported as 2011 SCMR 1980?
2. At the outset and before any notices could be ordered to be issued to the respondents, we have asked the learned counsel for the applicant that as to how the above questions arise out of the order of the Tribunal and further, as to whether could there be any exception to the impugned order which according to us, has been passed after proper appreciation of facts and law. The learned counsel was unable to satisfactorily reply to this objection.
3. We have gone through the order of the Tribunal and the questions proposed on behalf of the applicant and are of the view that the order has been passed by the Tribunal with detailed reasons after discussing the facts as well as the law. The Tribunal has categorically held that though the copy of the show cause notice was sent to the respondents but no specific allegation has been attributed against the respondents; nor any role has been specifically assigned or narrated in the facts of the show cause notice; and neither any allegation of collusion or abetment has been alleged. Needless to state that it is a settled proposition of law that if any penal action is to be taken or initiated against any person, the same is only permissible after issuing a proper show cause notice to such person with specific allegations attributed against such person asking for its explanation. On perusal of the show cause notice it transpires that the case has been made out against an Exporting Company for the alleged violation of various provisions of the Customs Act 1969 and in Para 6 thereof, there is a specific allegation against the exporter as well as its Directors whose names also are mentioned, however neither any allegation is attributed against the respondents nor their names are mentioned therein. The Customs Tribunal has therefore correctly held that in that case no penalty could have been imposed against the respondents. In view of this we are of the opinion that the Order passed by the Customs Tribunal is correct in law and the aforesaid questions of law neither arise of the Order of the Tribunal, nor are required to be answered by this Court under its advisory jurisdiction in terms of Section 196 of the Customs Act, 1969.
4. In view of the above we had dismissed the instant Reference Application and all connected matters in limine along with all listed application(s) vide our short order dated 15.1.2014 and the above are the reasons for the same.
J U D G E
J U D G E
ARSHAD/