2008 PLP 565 (PTD)

Despite the above conclusion, the Secretary agreed with the Department's view that the revision powers. of the Federal Government having been withdrawn consequent on creation of Customs, Central Excise & Sales Tax Appellate Tribunal (hereinafter called the Tribunal) vide Finance Act, 1989 (established with effect from 30-3-1995), jurisdiction no longer vested with the Federal Government to adjudicate on Revision Petitions under Section 196 of the Customs Act. He, then closed the proceeding with the following observation:

"In view of the above Honourable Lahore High Court, Multan Bench, Multan is requested that if it deems fit, it may agree to transfer the case to the above Appellate Tribunal for adjudication to meet the ends of justice". When the Complainant approached the High Court, their Judicial Branch informed him that Writ Petition No.7175 of 1998 stood finally disposed of and, therefore, observations by the Secretary, Finance Division in his administrative capacity do not warrant action by the High Court which may be invoked by the party or parties concerned through fresh petition. The Complainant has now moved the present complaint pleading that he has no financial resources to pursue the case before the High Court.

3. The Respondents have forwarded para-wise comments by the Collector (Customs), Multan which admit facts as set out but contend that the High Court has been requested to transfer the case to the Tribunal for decision hence the matter being sub judice is beyond the jurisdiction of the Federal Tax Ombudsman to entertain the complaint in view of the bar as per Section 9(2) of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 (hereinafter called the FTO Ordinance).

4. Sheikh Abdul Hakeem, Chief Executive of the Complainant appeared personally and dilated at length on the chronology of events and emphasized that inter-linking of SRO 962(I)/90 with SRO 722(I)/89 was found to be unworkable and the two were delinked. According to him, whereas others were given benefit of delinking, he is discriminated by way of withdrawal of exemption and imposition of penalty. The Complainant gave a detailed account of the financial set-back he suffered due to Attachment of the Mill and recovery of duties/penalty through coercive measures. The injustice in the process was highlighted by submitting that though he acted vigilantly and promptly at each stage, the Department slept over the matter for long and his Revision Petition of 1994 remained unattended for four years compelling him to file Writ Petition in 1998. It was vociferously insisted that the Department's apathy was glaring because they did not care to carry out the directions of the High Court to decide the Revision Petition "within four months". The Complainant expressed astonishment that despite having found that (i) the "balance in favour of the Appellant", (ii) more so when "in at least two identical cases" relief as allowed was not extended to the Complainant, and (iii) "the SRO under which the Complainant had been punished" had to be delinked due "to anomalies which later on were removed by the Government", the Secretary still passed on the buck to the Lahore High Court. This, according to the Complainant, was an example of "maladministration" as also of grave injustice.

5. Mr. Habib Ahmad, Deputy Collector (Headquarter) Customs, Multan, representing the Respondents, had no way from agreeing with the findings by the Secretary, Finance Division that the balance lay in favour of the Complainant and submitted that (a) the changes in law, (b) the deletion of Revisionary power of the Federal Government, and (c) the establishment of the Tribunal, left no choice with the Secretary but to request the High Court for transfer of the case. The DR further submitted that the complaint is not competent for admission as pointed out by the Collector due the matter being pending before the Lahore High Court.

6. The objection by the Respondents to the competence of the complaint is overruled because no evidence has been tendered to show that the Department has addressed any communication directly to the High Court nor any Miscellaneous Application moved seeking amendment of High Court order dated 9-10-2003.

7. The scrutiny of record and the arguments by the two sides revealed no disagreement as respects facts of the case and their chronology. The Respondents Representative appeared equally keen to resolve the issue but felt handicapped by changes in law. However, there is no explanation as to why:

(i) the Revision Petition was not promptly decided when filed in 1994, and (ii) when section 195A was omitted vide Finance Ordinance, 2001 (reported as PTCL 2000 BS.17) and the Tribunal created through insertion of section 194C, pending proceedings were not transferred to the new Forum as required by section 196(4). The complainant's case has shuttled vertically and horizontally from one authority to another, although evident discrimination and legally strong favourable grounds support his case, he is still being denied justice and is suffering inconsequence. Maladministration is established.

8. At this point of time the position is that Complainant's Revision Petition moved under the then Section 196 of the Customs Act filed in 1994 lies unattended despite directions by the High Court. The Finance Secretary, Federal Government feels that he cannot adjudicate the matter as his jurisdiction for Revision has ceased to exist on the creation of the Tribunal with effect from 1995. At the same time it is hard to ignore that issues raised in this pending petition warrant judicious resolution.

9. The long drawn proceedings have adversely affected the Chief Executive of the complainant in as such as during the hearing of the case he fainted and emergency medical aid had to be provided.

10. The case as stated above is admittedly a hardship case which has caused undue suffering to the complainant financially, mentally and health-wise. To resolve the dispute the complainant has stated that he is prepared for Alternate Dispute Resolution as provided under section 195C of the Customs Act which has been inserted by Finance Act, 2004. He further stated that the complaint filed before the Federal Tax Ombudsman may be treated as an application for Alternate Dispute Resolution under section 195C of the Customs Act.

11. The provisions of section 195C are beneficial in nature and start with non-obstante clause "notwithstanding any other provision of this Act or the Rules", Therefore any person in connection with any matter of Customs specified in section 195C may apply to the C.B.R. for appointing a Committee for the resolution of any hardship or dispute mentioned in detail in the application for Alternate Dispute Resolution. The complaint is admittedly a hardship case and fulfils all the conditions for referring the matter for Alternate Dispute Resolution.

12. It is therefore recommended that:

(i) C.B.R. to treat and accept the complaint filed by the complainant before the Federal Tax Ombudsman bearing No. 506/2004 as an application under section 195C of the Customs Act. (ii) C.B.R. to take necessary action as provided under section 195C and pass such orders as provided by law. (iii) Compliance be reported within 30 days. C.M.A./367/FTO Order accordingly.