2026 PLP 662 (PTD)

MUHAMMAD EJAZ SWATI, J.

The applicants are aggrieved against judgment dated 21-02-2024, 22-02-2024 and 02-04-2024 (impugned judgments), passed by the Single Member (Judicial) of Custom Appellate Tribunal Bench-Quetta (the Tribunal), whereby appeal under Section 194-A of the Custom Act, 1969 (the Act) filed by the private respondents against the order-in-original dated 24-01-2024, passed by the learned Collector of Customs (Adjudication) Custom House Quetta was allowed against the order-in-original dated 24-01-2024, with direction to the seizing agency/applicant to release the seized goods of the private respondents unconditionally.

2. The facts of the case are that the Collector Customs (Enforcement) Quetta through Field Enforcement Unit, Dera Murad Jamali (Natural) intercepted 7 vehicles loaded with container, which led recovery of foreign origin smuggled goods mentioned in the seizer report involving duty and taxes of Rs.469,158, 828/- (the duty). Show-cause notices were issued to the private respondents and subsequently an order-in-original dated 24-01-2024 was passed confiscated the goods, but in respect of vehicle with an option of redemption upon payment of fine by the respondents. The respondents in all the cases filed their respective appeals before the Tribunal, which appeals were accepted vide impugned judgment dated 21-02-2024, 22-02-2024 and 02-04-2024. The applicant has filed instant custom references applications under Section 196 of the Act against the impugned judgments passed by the Single Member (Judicial) of the Tribunal to decide the question of law as to whether single Member (Judicial) has jurisdiction to decide cases involving duty, taxes, penalty or fine exceeding five million rupees as provided under subsection (3) of Section 194-C of the Act?

3. Since above Custom Reference Applications involve identical question of law hence disposed of through this common judgment.

4. The learned counsel for the applicants contended that the respondents in all cases had filed appeals before the Tribunal against the order-in-original passed by the Collector Customs (Adjudication) dated 24-01-2024, involving duty, taxes, penalty and fine exceeding five million rupees and Single Member (Judicial) had no jurisdiction to decide the same, therefore, the impugned judgments are Coram non-judice being passed without having jurisdiction. That according to subsection (3) of Section 194-C, only special Bench consisting not less than two members one judicial and one technical member are competent to decide such appeals. The learned counsel for the applicant placed reliance on cases reported 2021 PTD 609, 2004 SCMR 1947, 2023 MLD 797, 2010 PTD 1024 and 2020 YLR 578.

5. The learned counsel for the private respondents contended that legal question raised by the applicant does arise from the impugned judgments as no such question of law was raised nor finding recorded in the impugned judgments by the learned Tribunal, therefore, competence/jurisdiction of the learned member is not involved. That subsection (4) (a) and (c) and subsection (3A) of Section 194-C of the Act authorize the Single Member (Judicial) to decide such cases. The learned counsel for the private respondent placed reliance on cases reported in 2015 PTD 963, 2006 SCMR 129, 2010 YLR 1430, 2013 PLC 334, PLD 2018 Peshawar 23, 2014 PTD 2014, 2023 SCMR 838, 2022 PTD 678, 2011 PTD (Trib) 429. 2010 PTD 2136, 2024 SCMR 853 and 2022 PTD 1302.

6. We have heard the learned counsel for the parties and perused the record. It is settled principle that a legal objection/question with regard to competence/jurisdiction can be raised at any stage subject to certain objection, because of decision rendered by the Court stand vitiated on this count alone. Reliance is placed on cases of Maulvi Aziz-ur-Rehman v. Ahmed Khan and others (2004 SCMR 1622), Syed Muhammad Hussain Shah v. Abdul Qayyum and others (2011 SCMR 743) and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCMR 730), wherein the Honorable Supreme Court of Pakistan observed as under: "The two Courts below, therefore, not justified in bypassing the issue of maintainability of the suit merely on the concession of appellants' counsel, who refrained to argue this legal point. Needless to mention here that it is the bounden duty of every Court/Tribunal to examine the issue of bar of its jurisdiction at the earliest opportunity and decide it in accordance with law, instead of escaping to decide such important aspect of the case on the mere concession of one or the other party. Moreso, when consent of the parties can neither confer nor can take away the jurisdiction of a Court/Tribunal, unless so conferred or barred by law."

7. The learned counsel for the private respondents has not disputed the impugned judgment deciding order involving duty, taxes, penalty and fines exceeding five million rupees by the Single Member (Judicial) of the Tribunal rather contended that in term of subsection (3-A) read with subsection (4)(a) and (c) of Section 194-C of the Act, impugned judgment has been passed with competence by the Tribunal. It is relevant to reproduce Section 194-C of the Act, which reads as under: "[194-C Procedure of Appellate Tribunal.

(1) The powers and function of the Appellate Tribunal may be exercised and discharged by Benches constituted by the Chairman from amongst the members thereof. (2) Subject to the provisions contained in subsections (3) and (4), a Bench shall consist of one judicial member and one technical member. (3) Every appeal against a decision or order [deciding a case involving duty, tax, penalty or fine exceeding five million rupees] shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member [Provided that the Chairman may, for reasons to be recorded in writing, constitute Benches including special Benches consisting of (a) two or more technical members; or (b) two or more judicial members: [(3A) Notwithstanding anything contained in subsections (2) and (3), the Chairman may constitute as many Benches consisting of a single member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing, specify.] (4) The Chairman or any other member of the Appellate Tribunal authorised, in this behalf by the Chairman may, sitting singly, dispose of any case which has been allotted to the bench of which he is a member where-- (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or [(b) ***] [(e) in any disputed case, the difference in duty or tax involved or the duty or tax involved, or the amount of fine or penalty involved does not exceed "[five] million rupees.] "

8. The Act empowers the Chairman to constitute from amongst the judicial and technical members, benches which are to exercise and discharge the functions of the Tribunal. Section 194-C (2) of the Act states about one Technical and one judicial member, subsections (3) and (4) of Section 194-C provides that every appeal against a decision or order involving duty, taxes, penalty or fine exceeding five million rupees shall be heard by Special Bench constituted by the Chairman for hearing such appeal and such Bench shall consist at least one judicial member and one technical member. Subsection (3-A) begins with non-obstante clause and provides that notwithstanding anything contain in subsections (2) and (3), the Chairman may constitute as many benches consisting of a single member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing specify. The only limitation is that such benches consisting of single member can only hear the class of cases as Federal Government may, by order in writing specify.

9. In instant cases no such notification or order in writing for delegating the authority issued by the Federal Government, notifying the cases to be assigned to a Single Member Bench is available on record nor produced the same by the respondents or rebutted by way of filing counter affidavit. Whereas subsection (04) of the Section 194-C is concerned. The subsection (4) authorizes the Chairman himself or any other member of the Appellate Tribunal to dispose of case, sitting singly, where value of the case related to duty, tax and fine are not exceeding five million rupees or which goods are confiscated without option to pay fine in lieu of confiscation under Section 181.

10. The language of subsection (4) suggested that Division Bench shall request Chairman for entrusting of case to one of the member of bench. A collective reading of this subsection shows that it is contemplating a situation where the Division Bench to whom case was allotted is non-functional due to absence or non-availability of one member for any reason under this situation. The Chairman may himself (if he is member of division bench) dispose of the case, sitting signally, provided one of the condition under clause (9) (c) is fulfilled. The word "sitting singly" denotes constitution of single bench, therefore, in subsection (4) the word authorized is used instead of allotment of a case. It means that the case is already to the bench, which non-functional. These cases falling under the clauses (a) (c) may be authorized for decision by one of the available member of the bench, which is non-functional. Reliance in this respect is placed on case titled Collector of Customs, Customs House, Karachi v. Syed Rehan Ahmed (2017 SCMR 152), wherein the Hon'ble Supreme Court reads as under: "Section 194-C(4) provides for an exception, where the Chairman or any other member of the Tribunal authorized by the Chairman, may sit singly and decide a case which has been allotted to the Bench of which he is a member. The pre-requisite for this is that such member (or Chairman) must already be a member of a Bench constituted by the Chairman under subsection (2) and the case must have been allotted to such Bench. But such member (or Chairman) can only decide such cases sitting singly where: (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181 does not exceed five million rupees; or (b) in any disputed case, the difference in duty or tax or the duty or tax involved or the amount of fine or penalty involved does not exceed five million rupees.

6. We would like to observe at this stage that the phrase "any case which has been allotted to the bench of which he is a member" appearing in section 194-C(4) of the Act is of immense importance which clearly suggests that there must have existed a Bench constituted under section 194-C(2) of the Act consisting of two members (or Chairman and a member), out of which the Chairman or a member authorised by the Chairman, may sit singly and dispose of a case already allotted to such Bench. To hold otherwise would be to render the aforesaid phrase redundant and superfluous. This is precisely why subsection (2) of section 194-C has been made subject to subsection (4), the latter of which purports to create an exception to the former. Further, such decision by the Chairman to allow himself or any other member of a Bench to sit singly to dispose of cases falling within the ambit of section 194-C(4) should not be as a matter of course or right, rather should be done upon proper application of mind by the Chairman who shall himself make such decision, and not delegate it to any other officer to undertake as an administrative action. The Chairman is obliged to examine the circumstances warranting the decision of letting him or another member of a Bench to dispose of a matter sitting singly before taking such step. This is precisely what has been held by the learned Lahore High Court in the case of Bagh Ali (supra) as relied upon by the learned counsel which to our mind is good law."

11. In the instant case from the contents of the impugned judgments and record, it is apparent that question of duty, taxes, penalty and fine exceeding five million rupees was involved and in term of subsection (3) of Section 194-C of the Act, the entrustment of cases/appeals to the learned Single Bench of the Tribunal is not in accordance with law, therefore, impugned judgments arising out of above customs references applications passed by the Single Member of the Tribunal are without jurisdiction Coram-non-judice, thus impugned judgments are not sustainable. The above are the reasons of our short dated 26-6-2024, which reads as under, "For the reasons to be recorded later on, Custom Reference Applications Nos.52 to 86 of 2024 are partly allowed. The Impugned judgments dated 21-02-2024, 22-02-2024 and 02-04-2024 respectively passed by Customs Appellate Tribunal Bench Quetta are set aside being coram-non-judice and not sustainable under the relevant provision of law, consequently the cases are remanded to the Chairman concerned, who is direct reconstitute a Bench in accordance with law and fix the cases for de novo hearing and to decide the same in accordance with law with in a period of two months; since in the impugned judgments already Customs Appellate Tribunal had expressed his opinion, therefore, he should not be included in the Bench. Copy of this order be sent to concerned Chairman and learned Customs Appellate Tribunal Bench Quetta for information and compliance." Copy of this judgment be sent to the learned Customs Appellate Tribunal Bench-Quetta and Chairman concerned for information and compliance in accordance with law. MH/10/Bal. Case remanded.