2002 PLP 556 (MLD)

NASEEM SIKANDAR, J.

This further appeal under section 196 of the Customs Act, 1969 assails an order, recorded by the Customs, Excise and Sales Tax Appellate Tribunal on 19-4-2001. Through that order while interpreting the provisions of section 195 of the Customs Act, 1969 the Tribunal opined that the Collector could re-open the case decided by the Additional Collector Customs but he could not pass it on to adjudication Collectorate. Accordingly the order of the learned Collector (Adjudication) was found to have been passed without jurisdiction. 2. .From the order in Original No. 41 ,, of 2000 recorded by Mr. Ghulam Sarwar Qaisrani, Additional Collector (HQ) Lahore dated 28-2-2000 it appears that adjudication proceedings were started against the driver of a Truck bearing registration No.QAE-218 which was found carrying goods of foreign origin. During checking of the vehicle its chassis number was also found to have been tampered with. A show-cause notice was accordingly served upon the driver. However, after usual proceedings the aforesaid Additional Collector as adjudicating authority concluded that detecting agency had not been able to substantiate the claim that the Truck was brought into the country without import authorization/payments of duties and taxes. It was further concluded that the respondent had purchased the vehicle (truck) from Messrs Hino Pak Motors Karachi vide their Invoice No. 1474 dated 25-4-1988 which was imported into the country on payment of leviable duties and taxes. It was accordingly directed to be, released unconditionally.

3. Subsequently, it appears that the Collector concerned in exercise of his powers under section 195 of the Customs Act, 1969 proceeded to serve a show-cause notice upon the respondent driver expressing his intention to revise the aforesaid order-in-original dated 28-2-2000. Subsequently after issuance of S.R.O. No.448(I)/2000, dated July, 2001 by C.B.R. in exercise of power conferred upon it by section 179 of the Customs Act, 1969, the case was transferred to the adjudicating Collectorate. After transfer, the Collector of Customs (Adjudication) again served the respondents with a notice and on usual proceedings concluded that the chassis number of tile truck had been tempered with. Accordingly the respondents driver Nawab Khan son of Abdul Zahir resident of Quetta was found guilty of the offences charged and the aforesaid truck was confiscated outrightly.

4. On appeal, the- Tribunal, has noted earlier, agreed with the submission made before it that the original proceedings initiated by the Collector under section 195 of the Act could not have been transferred to adjudication side nor the Collector (Adjudication) could adjudicate the matter which had already been adjudicated upon by his counter-part through the order, dated 28-2-2000.

5. Heard the learned counsel for the parties. Learned counsel for the Revenue has attempted his best to make us believe that a Collector on executive side could validly transfer the proceedings to the Collector (Adjudication) as per direction of the C.B.R. According to him that direction was made to carry out the order of the C.B.R. contained in the aforesaid S.R.O. and further explained by them through a letter dated 27t1a March, 2001. The learned Tribunal in his view was patently wrong in accepting the contention made by the respondent that Collector (Adjudication) could not proceed on the matter earlier initiated on revisional side of the jurisdiction.

6. Learned counsel for the respondents, however, supports the impugned order of the Tribunal by submitting that words of law being absolutely clear, the instructions circulated through C.B.R. letter, dated 27-3-2001 had no authority. at all. Also seeks supports from a unreported judgment of this Court recorded in Writ Petition No. 13890 of 13-8-2001 in re: Khan Trading Co. v. Collector of Customs.

7. On hearing the parties we are of the view considered view that the order of the Tribunal is perfectly in accordance with law. In the aforesaid judgment relied upon by the respondent his Lordship Mr. Justice Jawwad S. Khawaja has examined the issue in detail. In the view of his Lordship the revisional jurisdiction is in essence a supervisory jurisdiction whereby a superior forum or functionary is empowered to oversee the function of a subordinate forum or functionary. Thus, the revisional power is a matter between the revising authority and the subordinate forum whose action is being overseen. In that sense according to his Lordship it was distinguishable from the power vested in an appellate forum.

8. The petitioner before his Lordship imported a consignment of plastic scrap. He was issued a show-cause notice which was successfully contested by him. The Additional Collector (Adjudication) on usual proceedings allowed part of his submissions while, the remainder was decided on his statement. Accordingly the order in original recorded on " 5-2001 attained finality as none of the parties challenged the same. Subsequently the Collector (Adjudication) issued a show-cause notice on 13-7-2001 expressing his intention to re-open the case. Notice so issued was assailed through the above said Constitutional petition. His Lordship observed that the adjudicatory scheme introduced in the Customs Act by the Finance Ordinance, 2000 provided for two separate and distinct Collectorates of Adjudication and administering. Further that the Collectorates on the executive side entrusted with the collection of Revenue had deliberately and consciously been removed from the adjudicatory process. Therefore, the provisions of section 195 had to be read in that context. The contention of the Revenue that section 195 did not contain any distinction between the Collector of Customs on the executive side and Collector of Customs working as an adjudicatory authority was rejected by referring to provisions of sections 3, 15, 179 and 194-A of the Customs Act, 1969. While declaring the issuance of notice for re-opening of the case by Collector (Adjudication) to have been without lawful authority, his Lordship expressed the view that the term "Collector of Customs" as used in section 195 of the Customs Act did not include a Collector acting as an adjudicating authority.

9. In the present case, admittedly there has been two adjudications. The first order in original was recorded on 28-2-2001 and the second on 25-10-2001 which was assailed before the Tribunal. Obviously the second order was recorded after recent amendment made in section 179 of the Customs Act? 1969 providing for the creation of adjudication hierarchy in the department. It will be noted that the first order in original dated 28-2-2001 -having not been assailed before the Tribunal attainted finality. The Central Board of Revenue through' a Letter C. No.9(66) CEJ) 2000, dated 27-3-2001 attempted to interpret and explain the impact of the amendment. Two questions were addressed. Firstly if the Collectorates of Adjudication were empowered to re-open the cases under section 195 of the Customs Act, 1969 and secondly whether the cases re-opened prior to 1-7-2001 needed to be disposed of by the authority which re-opened them. According to the contents of the letter, the Board was of the view that Collectors Adjudication as well as Executive Collectors were empowered to re-open the cases within the confines of their legal jurisdiction. Secondly, the cases opened before 1-7-2000 by the Executive Collectors except those covered under sub-rule (2) of the aforesaid S.R.O. should be transferred to the adjudication Collectorates for disposal. Lastly that the cases covered under rule 2 of the aforesaid S.R.O. were to be disposed of by the Executive Collector themself.

10. The interpretation of C.B.R. as made in the above letter does not appear to be a correct statement of law. As observed by his Lordship in the aforesaid judgment in re: Khan Trading Co. (supra) the word "Collector of Customs" as used in section 195 does not include a Collector on adjudicating side. For exercise of revisional jurisdiction by a Collector (Adjudication) in respect of an order recorded by the Additional Collector or Deputy Collector, no provision has been made in section

179. To us it is also clear that in section 179 the three categories of the officers given with reference to limits of their pecuniary jurisdiction do not make them an officer or, subordinate to the other. A Collector adjudication empowered to adjudicate cases without any pecuniary limit does not by that reason become the appellate revisional or supervisory authority of the Additional Collector or the Deputy Collector as far the adjudication of cases is concerned.

11. In they present case as adjudication having already been made before change in section 179' introduced by the i4mance Ordinance, 2000, the Executive Collector, could exercise his jurisdiction under section

195. However, he could not transfer the matter to Collector (Adjudication) as the latter did not enjoy any revisional jurisdiction in respect of another adjudicating authority irrespective of its designation or pecuniary jurisdiction. It appears that C.B.R. did not appreciate the difference between adjudication and exercise of revisional jurisdiction. An adjudication per se implies an original decision on the merits of a case both legal as well as factual. A revisional jurisdiction on the other hand is vested in an authority higher in the hierarchy and the purpose of such jurisdiction is to supervise the function performed by a lower authority. It appears that due to lack of corresponding amendment in the provisions of subsection (1) of section 195 to match those made in section 179, the exercise of revisional jurisdiction by an Executive Collector has been reduced to nullity. Also the Collector (Adjudication) cannot exercise revisional power under section 179 nor can re-open the decision made on adjudication side by an Additional Collector or a Deputy Collector. Likewise the Collector on executive side cannot touch an order of adjudication recorded by any of the three authorities, the Collector, Additional Collector or Deputy Collector as identified in section 1799. The reasons simply being that none of them is an officer subordinate to him, which is a condition precedent for exercise of revisional jurisdiction under section

195. Therefore, except for the cases wherein adjudication was made before 1-7-2000 the Executive Collector cannot touch any order which decided "confiscation of goods or imposition of penalty under this Act and the rules made there under". After amendment in section 179 the Executive Collector is not empowered to interfere in adjudication matters directly or indirectly by invoking his revisional power under section

195. In fact after 1-7-2000 the revisional jurisdiction has remained relevant only to the extent of the C.B.R. MID.

12. For what has been said above, we will maintain the findings of the learned Tribunal. It means that the Collector acting on executive side could not transfer the matter which had already been adjudicated upon to the Collector (Adjudication). Secondly, the order having been recorded before the amendment in section 179 he could himself proceed to revise the same if the stated conditions of law were answered. Thirdly, the Collector Adjudication had no authority to re-open or revise the order of adjudication irrespective of the official designation or to pecuniary limit of the Officer making the order. Q.M.H./M.A.K./C-166/L ?????????????????????????????????????????????????????????????????? Appeal dismissed