2021 PLP 1870 (PTD)

Through instant Reference Application under Section 196 of the Customs Ordinance, 1969, the following question of law, asserted to have arisen out of impugned judgment dated 04.08.2015, passed by learned Customs Appellate Tribunal, Bench-I, Lahore ("Appellate Tribunal"), has been pressed and argued for our opinion:- "Whether the learned Appellate Tribunal has not erred in waiving off the imposition of penalty by the respondent without any justification and lawful reasoning?"

2. Brief facts of the case are that respondent-taxpayer was granted DTRE approval for import of input goods i.e. PVC Resin, Release Paper, Ethyl Hexanol, Phthalate Anhydride, Colors, D.O.P., Stablizer and Fabric Yarn for manufacture and export of "Artificial Leather". The applicant-department received information that respondent-taxpayer mis-appropriated the input goods imported under the said DTRE approval, which resulted in issuance of show-cause notice and the same culminated in passing Order-in-Original dated 05.11.2013. Feeling aggrieved, respondent-taxpayer filed appeal before learned Appellate Tribunal, which was disposed of and penalty imposed by applicant-department was waived off, vide order 04.08.2015, which has been impugned through instant reference application.

3. Learned counsel for the applicant was confronted with the impugned findings given by learned Appellate Tribunal that are of facts, hence, no question of law arises out of the impugned order. Despite arguments at some length, he could not give any satisfactory response.

4. Arguments heard. Record perused.

5. Perusal of record shows that respondent-taxpayer challenged the order passed by learned Collector (Appeals) on the ground that approval of DTRE was available to the appellant till 24th of November, 2013, whereas the contravention report was formulated on the basis of show cause notice which was issued by the applicant-department on 11.09.2012, well before the expiration of DTRE approved period, whereas the impugned order was passed on 29.10.2013 i.e. much before expiry of approved DTRE time period. Keeping in view the background, learned Appellate Tribunal waived the impugned penalty and it has also not been denied by learned counsel for applicant-department that controversy in hand has already been settled by this Court in Commissioner Inland Revenue v. Messrs Adeel Brothers (2017 PTD 1579), operative part of which is reproduced hereunder:- "

12. It is now well-settled that High Court has to decide reference application on facts and circumstances founded by Appellate Tribunal, in the exercise of advisory jurisdiction, which is the last fact finding forum. High Court cannot change findings of facts arrived at by the Appellate Tribunal unless the same are shown to be perverse and contrary to record. Reference can be made to Messrs F.M.Y. Industries Ltd. v. Deputy Commissioner Income Tax (2014 SCMR 907), Commissioner Inland Revenue, Zone-II Regional Tax Office-II v. Messrs Sony Traders Wine Shop (2015 PTD 2287), Messrs Pak Suzuki Motor Company Limited, Karachi v. Collector of Customs, Appraisement Collectorate, Custom House, Karachi (2015 PTD 2600) and Commissioner of Income Tax, Legal Division, R.T.O. v. Messrs Matrix Press (Pvt.) Ltd. (2016 PTD 97).

13. Since the decision by learned Appellate Tribunal is based on findings of facts, therefore, we decline to exercise advisory jurisdiction.

14. This Reference Application is decided against applicant department."

6. Needless to say that the findings of facts recorded by learned Appellate Tribunal, unless found to be either perverse or contrary to record, cannot be interfered with by the High Court, while examining questions of law proposed under the law. Scope of reference jurisdiction under the law is restricted only to the extent of examining questions of law arising from order passed by learned Appellate Tribunal and not to decide questions of facts, or for determining disputed facts. Reference is made to Messrs F.M.Y. Industries Ltd. v. Deputy Commissioner Income Tax (2014 SCMR 907), Commissioner Inland Revenue, Zone-I v. Messrs Industrial Chemicals (Pvt.) Ltd. (2017 PTD 756), Commissioner of Income Tax v. Ghee Corporation of Pakistan (Pvt.) Ltd. (2017 PTD 1167), Commissioner Inland Revenue v. Messrs Adeel Brothers (2017 PTD 1579) and Commissioner Inland Revenue, Zone-II v. Al-Hamad International Container Terminal (Pvt.) Ltd. (2017 PTD 2212).

7. Since the decision by learned Appellate Tribunal is based on findings of facts, therefore, we decline to exercise advisory jurisdiction. This Reference Application is decided against applicant-department.

8. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Customs Act, 1969. SA/C-20/L Reference dismissed.