2002 PLP 2585 (PTD)

8. The complainant's representatives have vehemently challenged the aforesaid observation of the Department and have contended that the so‑called Order‑in‑Original dated 1‑10‑2001 has neither been issued nor served on them till 31‑12‑2001 i.e. last date of hearing in this case. The departmental representative, Dr. Nasir Khan has not been able to produce copy of Order‑in‑Original dated 1‑10‑2001.

9. The copy of the relevant order sheet has been filed on 31‑12‑2001 by Mr. S.A. Sajjad Rizvi, AC Customs Appraisement. The order sheet entry dated 1‑8‑2001 shows that the case was fixed for hearing on 8‑8‑2001: The AC Customs made an entry on 8‑8‑2001 as under: "Mr. Muhammad Ilyas, Senior Assistant of the Company appeared and submitted that the order of the Hon'ble Supreme Court does not require the claimant to produce any proof whatsoever. Hence they are not required to present any proof. Their claim is hereby rejected for non‑presentation to proof as required vide O.M. of Ministry of Law and Justice and communicated by CBR vide their C.No. 9(20)/99 dated 16‑2-2000 in respect of bearing the incidence of 2 % PSI service charges. Please put up Order in Original."

10. It is pertinent to note that the aforesaid directions have been corrected and the 'Order in Original' has been replaced by the word "SCN".

11. The Department issued a show‑cause notice subsequently on 19‑9‑2001 whereby the hearing of the case was fixed on 29‑9‑2001. The order‑sheet entry dated 1‑10‑2001 is as under:‑‑ "Their claim has already been rejected and orders have been issued. To put up O.in.0 Please comply."

12. The departmental representative was asked to clarify as to why a show‑cause notice was issued on 19‑9‑2001 when the alleged Order‑in‑Original had already been passed on 8‑8‑2001. He could not explain the discrepancy and that the show‑cause notice dated 19‑9‑2001 was erroneously issued.

13. The above facts clearly show that the complainant's claim of refund has been processed and dealt with in a very casual and' irresponsible manner by the officers of Group VIII. This amounts to maladministration and delinquent officials deserve to be reprimanded.

14. The AC Customs, Dr. Nasir Khan during the course of hearing pointed out that in Complaint No.703‑L/2001, the complainant's claim of refund on account of payment of 2% service charges has been rejected by this Organization. He has furnished a copy of the decision/findings in this behalf. The reliance of the departmental representative in the aforesaid complaint is quite misplaced as in that case the complainant neither produced accounts books maintained for sales tax purposes nor furnished Certificate from the‑Chartered Accountant stating that the burden of 2% was not passed on to the customers. Here in the instant case the complainant's representatives have contended that requisite documents alongwith the certificate of Messrs Hyder Ali Bhimjee & Co., Chartered Accountants have already been filed with the Custom Department in support of their claim of refund.

15. In the parawise comments filed by the AC Customs Incharge Group IV it is stated that the representatives of the complainant last appeared on 12‑11‑2001 and requested for a period of 15 days for producing the required documents. The complainant's representatives have stated that the required documents alongwith the Certificate of Chartered Accountant have already been filed in the office of the Collectorate Group IV.

16. After the final hearing and before the decision in this complaint was delivered the complainant by its letter dated 10th January, 2002 submitted a copy of the order of the Deputy Collector of Customs (Appraisement) Group 8, rejecting the claim for refund of the PSI charges. The main ground for rejection is that the complainant has failed to furnish proof that the burden of 2% PSI service charges have not been passed on to the consumers and public. It was further stated that although opportunity was given to the complainant by letter, dated 14‑7‑2001 and 31‑7‑2001 to provide proof it failed to do so.

17. From the perusal of the facts discussed above it seems that the claim for refund was pending with the Customs Authorities from August, 1999 which was continuously perused by the claimant. The manner in which case has been dealt with by the relevant officer shows that no serious application of mind was made and pretext was sought to delay and ultimately to reject the claim. The most amazing part is that the Department time and again stated that the claimant had failed to provide any proof but the claimant's assertion is otherwise which is borne out from the record. On 27th October, 2001 notice was issued to the respondent and by that time no decision had been made by the Deputy Collector of Customs. After the arguments had been completed in this complaint the officer representing the Department had promised to furnish documents but nothing was supplied instead the order was passed in haste, ignoring the documents which had been received by the Department on 1‑1‑2002. The document was a certificate from Haider Bheemjee & Co. Chartered Accountant ,certifying that 2% PSI charges had not been passed on to its customers or anybody else. In the face of this certificate there was no occasion to pass order dated 7‑1‑2001 rejecting the claim. There are only two possibilities either the Deputy Collector of Customs did not examine the certificate of the Chartered Accountant or he completely ignored it as he had predetermined his mind to reject the claim. The delay in the disposal of the claim seems to be 'motivated and mala fide otherwise the grounds stated in the order dated 7‑1‑2002 were available to the Deputy Collector from the very beginning and he could have passed this order much before. The delay in making the order is also an attempt to forestall the present complaint. The order on the face of the certificate of the Chartered Accountant is mala fide, illegal and contrary to law and facts.

18. The officer responsible for deciding cases where rights of the parties are adjudicated is expected to be fair, just and free from mala fide and bias. The delay in deciding the case is not based on any reasonable or just ground. Such delay causes complaints of serious nature and motives are attributed which in many cases turn out to be correct. If the Customs Department has to build image of a credible institution on which persons dealing with it should have faith then they must work hard to show their honesty and integrity even in small and routine matters not to talk of huge claims.

19. In view of the above it is recommended: (i) The order dated 7‑1‑2002 passed by the Deputy Collector of Customs (Appraisement) Group 8 be cancelled. (ii) Refund be allowed to the complainant after examining the certificate issued by Haider Bheemjee & Co. Chartered Accountant. (iii) Mr. Imran Khan, Deputy Collector of Customs (Appraisement) Group VIII be reprimanded for the manner in which the case was dealt with and decided by him. (iv) Compliance be reported within 30 days C.M.A./M.A.K./377/FTO Order accordingly.