IN THE HIGH COURT OF SINDH AT KARACHI

SPECIAL CUSTOM REFERENCE APPLN NO.53 TO 55 OF 2012

PRESENT :-

MR. JUSTICE AQEEL AHMED ABBASI,

MR. JUSTICE MUHAMMAD JUNAID GHAFFAR

Date of hearing: 23.12.2014

Mr. Mohsin Imam, Advocate for the Applicant.

O R D E R

MUHAMMAD JUNAID GHAFFAR, J:- Through listed application filed under Order 47 Rule 1 CPC, the applicant seeks review of order dated 24.10.2014 passed in Special Custom Reference Application Nos.53 to 55 of 2012, whereby, the questions as framed by the applicant/department were answered against the applicant and the aforesaid Special Custom Reference Applications were dismissed vide common order as referred to hereinabove.

2. Learned Counsel for the applicant submits that this Court has fallen in error, while passing the impugned order dated 24.10.2014 and has also overlooked certain important aspects of the case, while answering the questions of law. Learned Counsel for the applicant has contended that since, there is an error in the order dated 24.10.2014 the same may be recalled and rectified and the matter be remanded to the Customs Appellate Tribunal to decide the same a fresh.

3. Learned Counsel for the applicant has been confronted as to how instant application filed under Order 47 Rule 1 CPC is maintainable in the instant proceedings, when the matter has been finally decided by this Court while exercising Reference jurisdiction in terms of Section-196 of the Customs Act, 1969, which is a special law, and does not provide for any review of an order/judgment passed by this Court under the Customs Act, 1969. Learned Counsel could not submit any satisfactory respond to the query of this Court in this regard.

4. It may be noted that instant proceedings have been initiated on behalf of the department in terms of Section-196 of the Customs Act, 1969, by filing Reference applications No.53 to 55/2012 against an order dated 21.11.2011 passed by the Customs Appellate Tribunal. This Court, after hearing the parties at length vide common order dated 24.10.2014, answered the proposed questions against the applicant and dismissed the Reference Applications filed on behalf of the Applicant/department on merits. In case of being aggrieved by such final order passed by this Court under Section 196 of the Customs Act, 1969, the only remedy as available under law to the Applicant is to file a Civil Petition for leave to Appeal before the Hon’ble Supreme Court of Pakistan in terms of Article185 of the Constitution of Pakistan, 1973, which appears to have not been availed and in order to circumvent the legal course the applicant chose to file instant Review application under order 47 Rule 1 CPC, which provisions are not attracted in Customs Reference proceedings. Such proceedings are governed under a Special law i.e. Customs Act, 1969, which does not provide any provision for reviewing an order passed under reference jurisdiction by this Court. Reliance in this regard can be placed on the case of Collector of Sales Tax (East), Karachi V/s Customs, Excise, Sales Tax Appellate Tribunal, Karachi and another [2003 PTD 1477] passed by a Division Bench of this Court, wherein, the learned Division Bench has been pleased to hold that “the Sales Tax Act, 1990 is a complete code in itself and being a special law excludes the provisions as contained in general law. Though the aforesaid Judgment has been passed in respect of a matter, which pertains to the Sales Tax Act, 1990, however, the provisions which confer reference jurisdiction upon this Court under Sales Tax Act, 1990 and the Customs Act 1969 are pari-materia to each other, hence, the ratio of the cited judgment is squarely applicable to the facts of this case. It will be advantageous to reproduce the relevant observations of the learned Division Bench, which reads as under:-

“We do not agree with the submission of learned counsel for the appellant, for the simple reason that the Sales Tax Act is a complete code in itself and a special law shall exclude the provisions contained in general law. The Sales Tax Act contains all the substantive as well as procedural law, pertaining to the charge/levy, assessment and appeals pertaining to the Sales Tax. Mr. Raja M.Iqbal, learned counsel for the appellate has submitted that this Court can exercise the review jurisdiction under the inherent powers, vested in it, under section 151, CPC. Civil Procedure Code is not applicable at all, therefore, the question of exercise of inherent jurisdiction under CPC does not arise.

Leaving aside the C.P.C, it would not be covered under inherent jurisdiction, exercised by every Court, because the matters pertaining to review and appeal do not fall within the purview of inherent jurisdiction, as they are neither incidental nor ancillary to the main proceedings. The matters, such as correction of arithmetic error or any mistake, which does not require independent examination can be held within the inherent jurisdiction of every Tribunal, Court or Judicial Authority. However, by now, it is settled proposition of law that power of review or appeal cannot be exercised under the inherent jurisdiction and has to be conferred specifically by law. Since no such power is vested in this Court under Sales Tax Act, therefore, we are of the considered opinion that the review application is not maintainable”.

5. Similarly, another Division Bench of this Court in the case of Maroof Oil Company through Authorized Representative V/s Collector of Customs, Karachi and another [2010 PTD 777], in a matter relating to a Custom Reference filed in terms of Section 196, Customs Act, 1969, by relying on the case, as referred to hereinabove, dismissed the review application filed on behalf of the applicant in the following terms:-

“Be that as it may, in terms of the Judgment of a Division Bench of this Court in the case of Collector of Sales Tax East, Karachi relied upon by the counsel for the respondent, we find that the review application which was filed in the High Court in a sales tax proceeding was held to be not maintainable as the Sales Tax Act did not make provision giving jurisdiction to the High Court toi review its own order. Similar seems to be the position in respect to the Customs Act as the counsel for the petition has not been able to show that there is any provision under which the High Court can review its own order exercising the jurisdiction under the Customs Act”.

6. Without prejudice to the legal position emerged in view of aforesaid judgments of this Court of this Court as referred to hereinabove, the application has no substance or merits, as review of the order dated 24.10.2014 has been sought on the grounds that some important points of law have been overlooked by this Court while passing the aforesaid order, hence, the order may be recalled and modified accordingly. We are afraid such contention as raised on behalf of the applicant does not fall within the scope of review, as it can be invoked in case of such apparent mistake in the order, whereas, any decision on merits cannot be recalled or modified by invoking the provisions of Order 47 Rule 1 CPC. Hence even on merits, the order of this Court dated 24.10.2014 cannot be reviewed by this Court under Order 47 Rule 1 CPC.

7. In view of above settled legal position and by following the above cited decision of this Court on the subject, we are of the view that no case of reviewing the order dated 24.10.2014 has been made out, whereas, this Court has no jurisdiction or authority to review its own orders passed under the Reference jurisdiction in terms of Section-196 of the Customs Act, 1969. Accordingly, listed application being devoid of any substance and not maintainable was accordingly dismissed by a short order dated 23.12.2014 with cost of Rs.10,000/- to be deposited by the applicant in the account of High Court Clinic, and these are the reasons for such short order.

JUDGE

Talib