IN THE HIGH COURT OF SINDH AT KARACHI

C.P.No.D-4899 of 2014

Present:

Mr. Justice Aqeel Ahmed Abbasi.

Mr. Justice Muhammad Junaid Ghaffar

M/s. Shahrukh & Co. ---------------------------------------Petitioner

Versus

Federation of Pakistan & others------------------------------------Respondents

Date of hearing: 15.01.2015

Date of order: 15.01.2015

Petitioner: Through Mian Abdul Ghaffar, Advocate

Respondent No.1: Through Mr. Dilawar Hussain,

Standing Counsel.

Respondents No.2 to 4: Through M/s. Ghulam Haider Shaikh and Kashif

Nazeer along with Zubair Ahmed, Assistant

Registrar, Customs Appellate Tribunal and

M.Ilyas Ahsan, Appraisal Officer, Customs Deptt.

O R D E R

Aqeel Ahmed Abbasi, J:- Through instant petition, the petitioner has impugned the order dated 24.03.2014 passed by the Chairman, Customs Appellate Tribunal, whereby, an order dated 12.12.2013 passed by a Division Bench of the Customs Appellate Tribunal comprising of Member (Judicial-I) and Member (Technical-II), Karachi, in the case of the petitioner in Customs Appeal No.K-250/2013, has been set-aside and the office has been directed to fix the appeal for re-hearing before the current bench constituted for disposal of the appeals pertaining to Section 25-D of the Customs Act, 1969.

2. It has been contended by the learned counsel for the petitioner that on being aggrieved and dis-satisfied by an order passed by the Director General, Directorate General of Customs Valuation, Karachi, dated 08.11.2012 the petitioner filed an Appeal i.e. K-250/2013 before the Customs Appellate Tribunal, Bench-I, Karachi, which was heard from time to time and was finally decided vide order dated 12.12.2013, whereafter, the petitioner applied for issuance of true copy of the order passed by the Customs Appellate Tribunal. However, per learned counsel, instead of supplying the copy of the aforesaid order, the petitioner was informed that the Chairman, Customs Appellate Tribunal vide impugned order dated 24.03.2014, has directed the office to fix the case for regular hearing before another bench for the reasons that since the order has been passed after expiry of 90 days from the date when it was reserved for order, therefore, the D.B. of the Customs Appellate Tribunal, who has passed the order on 12.12.2013, did not have the authority to pass such order after expiry of Ninety days. It has been contended by the learned counsel that the Chairman, Customs Appellate Tribunal has no authority to pass such order as it amounts to setting-aside the order already passed by a D.B. of the Customs Appellate Tribunal, whereas, Chairman, Customs Appellate Tribunal has no authority in law to either sit on appeal or to set-aside the order and to direct the office to fix the matter again before another bench for re-hearing when the appeal has already been heard and disposed off vide detailed order by the bench. Per learned counsel, the observations of the Chairman, Customs Appellate Tribunal against the D.B. of the Customs Appellate Tribunal for its being not functional is even factually incorrect as admittedly, when the appeal was heard and reserved for orders, the said bench was lawfully constituted and assigned the said case for disposal in accordance with law, hence, it has been rightly decided by the same bench where it was argued and reserved for orders.

3. Notices were issued to the respondent, whereas, the record of the case was summoned from the Customs Appellate Tribunal, pursuant to which, Mr.Kashif Nazeer has filed comments, whereas, the Assistant Registrar, Customs Appellate Tribunal has shown appearance along with relevant record and the case file.

4. From perusal of the case record, it has been noted that the appeal filed by the petitioner i.e. Customs Appeal No.K-250/2013 was heard and reserved for orders by a bench comprising of Member (Judicial-I) and Member (Technical-II) on 30.07.2013, whereafter, detailed order dated 12.12.2013 was passed and was duly signed by both the Members of D.B, whereas, on 13.12.2013, Assistant Registrar-I, Customs Appellate Tribunal, was directed to issue and dispatch the order to the parties in accordance with law and procedure. The Assistant Registrar-I, present in Court submitted that before order could be issued to the parties, he had written a letter dated 23.12.2013 (available at page 211 of the file of the Appellate Tribunal) to the Assistant Registrar, Customs Appellate Tribunal, headquarters, Islamabad, with the request to place the matter before the learned Chairman, Customs Appellate Tribunal, as the order in the instant matter has been passed beyond the period of 90 days, whereas, the Chairman, Customs Appellate Tribunal, during his last visit at Karachi, gave verbal directions to the officer not to issue orders which are passed by any bench at Karachi beyond the time limit of 90 days from the date when it was reserved for orders. The matter was placed before the Chairman, Customs Appellate Tribunal alongwith order passed by the Division Bench on 12.12.2013, who has been pleased to pass an order dated 24.03.2014, which reads as under:-

“Office has referred me the subject appeal along with the judgment duly signed by the then Members i.e. Member Judicial-I, Karachi and Member Technical-II, Karachi dated 13.12.2013, seeking advice for issuance of the subject judgment or otherwise as the same has been received after the lapse of about six months of detail hearing of the case and reserved for order. I have gone through the record of the case and observed that the office of Bench-I has rightly pointed out the limitation period of 90 days for writing of judgment after reserving the appeal for orders in the light of judgment of the Hon’ble Lahore High Court reported as NLR 1982 Tax 01. In the instant case, a Special Division Bench was constituted vide Office Order No.1-5/1B-I/2012/850 dated 17.12.2012 comprising of Member Judicial-I, Karachi and Member Technical-II, Karachi for disposal of appeals pending in all three Benches at Karachi. Although the said Division Bench has reserved the appeal for order on 31.07.2013 when the said bench was functional, however, the judgment was delivered on 13.12.2013, the said Bench was not existing as a new Special Divisional Bench comprising of Member Judicial-II, Karachi and Member Technical-II, Karachi, was constituted during the intervening period vide Office Order No.CAT/KB-III/2013/1198 dated 23.08.2013. Since the judgment has been passed by a Bench which is neither legally constituted nor having jurisdiction for disposal of the subject appeal, therefore, the said order/judgment dated 13.12.2013 is declared without having any legal authority. Hence, the instant appeal be fixed for regular hearing before the current Bench constituted for the disposal of the appeals pertaining to Section 25-D. Office is directed to issue notices to the parties for 03.04.2014.”

5. Learned counsel for the respondent and Assistant Registrar-I, Customs Appellate Tribunal were directed to assist this Court and to refer to any provision in the Customs Act, 1969 or in the Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules 2006, which authorizes the Chairman, Customs Appellate Tribunal to pass an order, whereby, any order duly signed and announced a Division Bench by the bench of the Customs Appellate Tribunal could be recalled, modified, or be directed to be fixed for re-hearing before any other bench, as has been done through impugned order in the instant case. However, they could not refer to any provision of law or Rules in this regard. In order to examine the authority vested in the Chairman, Customs Appellate Tribunal with regard to constitution of benches and assignment of cases to various benches under Customs Act, 1969, it will be advantageous to refer to provisions of Section 194 C, wherein, the entire procedure of Customs Appellate Tribunal and the powers and functions of the Customs Appellate Tribunal to be exercised and discharged by benches constituted by the Chairman from amongst the members thereof have been provided. From perusal of the provisions of Section 194 C of the Customs Act, 1969, it appears that the Chairman, Customs Appellate Tribunal has the authority to constitute various benches consisting of single member or two or more, technical or judicial members for hearing of appeals, however, there is no provision in the aforesaid Section, which authorizes the Chairman, Customs Appellate Tribunal to even transfer the case from one bench to another bench in which hearing has been concluded and the matter has been reserved for judgment/order. Similarly, there is no provision under the law, whereby, the Chairman, Customs Appellate Tribunal would have any authority to interfere in whatsoever manner, with the judgment/order already signed and announced by a bench of the Customs Appellate Tribunal, at a subsequent stage as it has been done through impugned order in the instant case. Similarly, from perusal of the Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006 also, it is noted that though the Chairman, Customs Appellate Tribunal, has the authority to distribute work among different benches consisting of either one member or two and more members (Judicial) or (Technical) and can assign particular cases to such benches, however, no authority is vested in the Chairman in terms of the aforesaid rules, whereby the Chairman, Customs Appellate Tribunal could interfere with the judgment/order already passed by a bench irrespective of the fact if the said order would have been passed after expiry of three months from the date when it was reserved for judgment/order. We are not inclined to make any observation or record any finding to the effect as to whether an order passed by a bench of Customs Appellate Tribunal after expiry of 90 days from the date when it was reserved for judgment/order is a valid and legal order or otherwise, however, we may observe that such aspect of the matter can be examined by appropriate forum in appropriate proceeding, which may be agitated by any party either by way of filing a reference under Section 196 of the Customs Act, 1969, against any such order passed by the Customs Appellate Tribunal under Section 194-B of the Customs Act, 1969, or by invoking the provision of Article 199 of the Constitution of Islamic Republic of Pakistan,1973 before this Court. However, we are clear in our mind that the Chairman, Customs Appellate Tribunal has no authority whatsoever either under the Customs Act, 1969 or the Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006, to interfere, modify or alter the judgment/order passed by a bench having jurisdiction over the case at the time of hearing of appeal when it was reserved for judgment/order.

6. In view of hereinabove, the impugned order passed by the Chairman, Customs Appellate Tribunal is without jurisdiction and has been passed without lawful authority, which is hereby set-aside. Accordingly, no re-hearing of the case is required and the office is directed to issue true copy of the order to the concerned party in accordance with law and Rules as referred to hereinabove.

Petition stands allowed in the aforesaid terms along with listed application.

J U D G E