KARACHI: A Special Customs Reference Application filed by Collector, Collectorate of Customs, Hyderabad (Applicant) against M/s. Frontier Waziristan Shell Petr. Services &ors was dismissed by a Custom Appellate bench of High Court of Sindh comprising Justice Junaid Ghaffar and Justice Adnan-ul-Karim Memon.
Mr. Khalid Mehmood Rajpar, Advocate represented Applicant department in both Reference Applications while Mr. Sardar M. Ishaq along with Mr. Amjad Hayat, Advocate appeared for the Respondents.
As per details, through two Reference Applications, the Applicant department has impugned Judgment dated 06.05.2023 passed in Customs Appeal Nos. H-814/2023 and H-815/2023 and had initially proposed various questions of law.
The court answered the foremost questions of law i.e Whether learned CAT is justified by concluding that O-N-O No. 31/2023 dated 14.04.2023 was passed beyond statutory time period?
The court also considered that whether CAT was justified to decide that burden of proof was discharged by respondents and such burden was shifted to custom department? and whether CAT erred in law that impugned goods has been legally imported under valid license and payment of duty and taxes leviable thereon has been paid accordingly?
The bench in its order noted that Insofar as proposed question No.1 is concerned, admittedly, the said question has been decided by the Supreme Court against the department in various cases under the Sales Tax Act, 1990 as well as The Customs Act, 1969, as both the statutes 1 Mujahid Soap & Chemical Industries (Pvt.) Ltd., v Customs Appellate Tribunal (2019 SCMR 1735); The Collector of Sales Tax v Super Asia Mohammad Din (2017 SCMR 1427) and followed in the case of A.J. Traders v Collector of Customs (PLD 2022 SC 817), 2 have analogous provision insofar as passing of an Order in Original within a certain period of time is concerned.
In the instant matter, the Show Cause Notice was issued on 27.02.2023 and the Order in-Original was passed on 14.04.2023; whereas, in terms of Section 179(3) read with the first proviso, (as admittedly in the show cause notice clause “s” of Section 2 of the Customs Act, 1969, has been invoked) such matters are to be decided within a period of 30 days from the issuance of Show Cause Notice. Perusal of the Order-inOriginal does not reflect that any adjournment was sought on behalf of the private Respondents; rather it was the department, which had caused delay in submission of their reply finally on 07.04.2023, whereas, the period of 30 days had already lapsed on 29.3.2023. It is also not the case of the Applicant that any extension was ever granted by the concerned Collector in terms of Section 179(3) ibid for passing of the impugned Order in Original. In Super Asia (Supra) it has been held that wherever, the legislature has provided certain period for passing of an Order; then the said direction is mandatory and not directory and in that case non-compliance of such a mandatory provision would invalidate such act. In Mujahid Soap (Supra) it was held that since adjudication was beyond time as prescribed in Section 179(3) of the Act; therefore, the said decision is invalid, the SHC bench held adding that “Both these views have been followed and affirmed in the case of A.J. Traders (Supra). In view of the above, question No. (1) as above, is answered against the Applicant and in favour of the Respondents and as a consequence thereof, answer to remaining Question(s) would be an academic exercise”
The bench ordered its Office to sent copy of this order to Customs Appellate Tribunal, Karachi, in terms of subsection (5) of Section 196 of Customs Act, 1969.