2010 PLP (Trib (PTD)

The instant miscellaneous application has been filed with the prayer to stay the recovery of demand outstanding against the applicant.

2. The facts leading to the filing of this miscellaneous application, in brief, are that the Islamabad High Court vide order dated 15-5-2008 remanded the case of the applicant to this Tribunal with the observation that this Tribunal could not dismiss the appeal on the ground of limitation without considering the question whether the delay was condonable or not. Against the order, the respondent-Department filed leave to appeal before the honourable Supreme Court of Pakistan which was granted by the august Court vide its order dated 3-8-2009 to consider the following questions:- (a) Whether the Court had jurisdiction to condone the delay within the scope of section 358(5) of the Central Excise Act. (b) What is the effect of the substitution of petitioner in place of Collector of Customs (Adjudication); and (c) What effect this substitution would have on the filing of appeal as well as the limitation involved.

3. The learned counsel for the applicant vehemently pleaded for the grant of stay and stated that the honourable Supreme Court of Pakistan, while granting leave to appeal had not restrained this Tribunal to proceed further in the matter. The learned AR referred to Order XX of the Supreme Court of Pakistan Rules, 1980 to contend that there was no bar for considering the application for stay because the Supreme Court had not restrained this Tribunal from exercising jurisdiction in this regard. To fortify his stance the learned AR of the applicant also referred to the judgment of the Lahore High Court, Lahore reported as 2008 PLC (C.S.) 551 and PLD 2008 Lahore 57, wherein implications of Order XX of the Supreme Court of Pakistan Rules 1980 were considered. The honourable High Court held that: -- "Order XX of Supreme Court Rules, 1980 requires mention, whereby the execution of an order appealed against, cannot be prevented through filing of a petition for leave to appeal or an appeal. The order of a Court or a forum appealed against in the honourable Supreme Court, can only be stayed when an injunctive order is passed. Honourable Supreme Court took serious notice when Executing Court (Civil Judge 1st Class, Sheikhupura) adjourned the matter i.e. execution proceedings titled "Bashiran Bibi v. Muhammad Ramzan" on a number of dates of hearing and directed the judgment-debtor to furnish copy of stay order. The apex Court observed that implementation of an order or execution of a decree cannot be stayed, merely on assailing of judgment or order, through petition for leave to appeal or through appeal."

4. The learned Legal Advisor, appearing on behalf of the department vehemently opposed the request for stay of demand and contended that the questions framed by the Supreme Court for determination through its order dated 3-8-2009 are of far-reaching implications in terms of their impact on the assumption of jurisdiction by this Tribunal in pursuance of the order of the Islamabad Court dated 15-12-2008. He submitted that the initiation of proceedings by this forum for the disposal of appeal of the applicant in compliance with the order of Islamabad High Court may result into a finding which may be in conflict with the judgment of the honourable Supreme Court of Pakistan as and when passed. He explained that the issue on which the Islamabad High Court had remanded the case to the Tribunal-is embodied in one of the questions framed by the honourable Supreme Court for its consideration and the judicial propriety demands that when a higher forum is seized of a matter the lower forum should restrain itself from adjudicating the said issue. The learned AR stated that precisely for this reason the Tribunal had been granting adjournments from time to time because it was conscious of the fact that the adjudication by it in pursuance of the order the High Court would amount to transgressing into the jurisdictional domain of the Supreme Court of Pakistan.

5. Regarding the prayer for stay of demand the learned AR pleaded that the Tribunal, in the presence of the order of the Supreme Court of Pakistan, could not grant temporary relief because an order to that effect would amount to adjudication upon issues incidental and ancillary to the main, appeal, which by virtue of the order of the Supreme, Court of Pakistan, no longer remained within the jurisdiction of the Tribunal.

6. We have given due consideration to the arguments of both the sides and also perused the relevant record and the case-law cited at the Bar. We are of the considered opinion that the direction of the Islamabad High Court contained in its order dated 15-12-2008 regarding adjudication by this Tribunal cannot be carried out because jurisdiction with regard to the issue to be adjudicated by this Tribunal has been assumed by the Supreme Court of Pakistan itself. The order of the honourable Supreme Court, in our view, has the effect of ousting the jurisdiction of this Tribunal vis-a-vis the issue remanded by ' the Islamabad High Court to this Tribunal for consideration. We are of the considered opinion that because of judicial propriety we cannot record any finding even upon an issue ancillary to the main appeal. The cases relied upon by the learned AR of the applicant are distinguishable from the facts of the case in hand because in the cases relied upon by him mere filing of leave to appeal/appeal was not approved as a bar preventing exercise of jurisdiction by the lower Court whereas in the instant case the Supreme Court has clearly identified and specified the issues on which it would dilate. Under these circumstances, we express our inability to grant stay to the applicant because the jurisdiction of this Tribunal stands ousted even with reference to the issues incidental and ancillary to the main appeal.

7. The application stands rejected. C.M.A./111/Tax (Trib.) Application rejected.