2011 PTD 2220 (PLP)

JAVED IQBAL, J.

The above captioned appeals with leave of the Court are directed against order dated 10-10-2008 passed by learned Division Bench of High Court of Sindh, Karachi whereby the Special Customs Reference has been dismissed.

2. Leave granting order is reproduced herein below for ready reference:-- "This order shall dispose of Civil Petitions Nos. 30-K to 83-K of 2009 as common questions of law and facts are involved. (2) Learned counsel for the petitioner right at the outset submits that leave has already been granted in petitions raising similar issue. He has referred to the order of this Court reported at Collector of Customs and another v. Messrs Fatima Enterprises Limited and others (2005 SCMR 1493) and Civil Petition No.161-K of f 2006 which are still pending. (3) In view of the above since leave has already been granted in the afore-referred petitions (Civil Petitions Nos.161=K of 2006, 703-K and 704-K of 2003), leave is granted in these petitions as well and office is directed to fix these appeals along with the afore-referred cases."

3. Precisely stated the facts of the case are that "there was a difference between the manifested quantity of oil and actually recovered oil and the respondent has paid Customs duty on the recovered oil only and not on the manifested quantity of oil. Therefore, Show-Cause Notice was issued by the applicant under section 32(1) and (2) for the recovery of the revenue loss due to the action of the respondent. The learned tribunal after examining the facts of the case has come to the conclusion that the show-cause notice though issued under section 32(1) and (2) does not fall under this section as no allegation has been made that any forged document has been filed or the respondent has succeeded in paying the lesser duty due to collusion with some Custom Officer. On perusal of the show-cause notice we find ourselves in full agreement with the conclusion reached by the Tribunal."

4. Raja Muhammad Iqbal, learned Advocate Supreme Court entered appearance on behalf of appellant and contended that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice and on this score alone the order impugned is liable to be set aside. In order to substantiate the said contention, it is submitted that the provisions as enumerated in section 32 of the Customs Act, 1969 (hereinafter referred to as the `Customs Act') have been an interpreted and misconstrued. It is next argued that a Special Customs Reference should have been dilated upon and decided by the learned Division Bench as no question of fact was involved and therefore, the order impugned is not in consonance with the record which escaped the notice of learned Division Bench of High Court of Sindh causing serious prejudice against the appellant. It is also contended that the content of show-cause notice were neither perused by the learned High Court nor the Tribunal resulting in huge loss to the Government exchequer.

5. Mr. Aziz A. Sheikh, learned Advocate Supreme Court entered appearance on behalf of respondent and supported the order impugned for the reasons enumerated therein with the further submission that the provisions as enumerated in section 32 of the Customs Act could not be made applicable hence issuance of show-cause notice being illegal and badly barred by time has rightly been declared as without any base and legal foundation.

6. We have carefully examined the order impugned and perused the entire record with the eminent assistance of learned counsel on behalf of the parties. The opinion of learned High Court of Sindh was sought on the following points:-- (1) Whether on the facts and circumstances of the case, the learned Tribunal erred in law to hold that Show-Cause Notice for evasion of duty falls under section 32(3) of the Customs Act instead of section 32(2) of the Customs Act, 1969 ibid? (2) Whether on the facts and circumstances of the case the learned Tribunal erred in upholding the validity of the Show-Cause Notice under section 32(3) where in fact it had been issued under section 32(2) of the Customs Act, 1969? (3) Whether on the facts and circumstances of the case the learned Tribunal erred in law to not consider that same issue has been decided by the Hon'ble Division Bench of the Court reported in 2007 PTD 1608?"

7. The learned Division Bench has rejected the Reference vide order impugned with the following observations:-- "The finding of the Tribunal is a finding of fact and is unexceptionable. Even otherwise the alleged proposition of law canvassed by the learned counsel of applicant has already been decided by this Court, which is binding on us. We, therefore refuse to exercise our advisory jurisdiction and answer the proposed questions. All these Customs Reference Applications are therefore, dismissed in limine."

8. The pivotal question which needs determination would be as to whether the import levies should have been recovered on the "delivered quantity" of oil or "manifested quantity" of oil and whether show-cause notice could have been issued under section 32(1) and (2) of the Customs Act or otherwise? We intend to examine the provisions as enumerated in section 32 of the Customs Act which are reproduced herein below for ready reference:-- " ..32. False statement, error, etc.

(j) If any person, in connection with any matter of customs,- (a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or (b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. (c) Where, by reason of any such document or statement as aforesaid or by reason of some collusion, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within three years of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice. (d) Where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within (six months) of the relevant date requiring him to show cause why he should not pay the amount specified in the notice....".

9. Now here at this juncture it would be proper to examine as to whether the provisions as enumerated in section 32 of the Customs Act, reproduced hereinabove, can be made applicable in these cases or otherwise? The language as employed in section 32 of the Customs Act is plain and simple and no scholarly, interpretation would be needed. The provisions as envisaged in section 32 of the Customs Act would be attractive in the following cases: (i) On filing deceptive, false and fake declaration, notice, certificate, document or statement; (ii) Issuance of notice within a period of three weeks for payment of specified amount in case of short levied of duty, its non-payment, erroneously refunded as a result of some collusion; (iii) In case of inadvertence, error or misconstruction, non-levied or short levied of any charge/duty, the payment shall be made subject to notice within six months.

10. A careful scrutiny of the entire record would reveal that it is neither the case of forgery nor fraud and thus falls within the ambit of section 32(3) of the Customs Act for which issuance of notice within six months is a mandatory requirement. The details of issuance of notice are as follows: S. No. Appeal No. Date of Show- Cause Notice Date when expired Time barred by days

1. K-615/05 2-9-2002 20-5-1999 39 months

2. K-617/05 28-3-2000 16-1-2000 02 months

3. K-618/05 28-3-2000 18-3-2000 10 months

4. K-619/05 28-3-2000 9-12-1999 3 months

5. K-622/05 28-3-2000 5-7-1998 21 months

6. K-623/05 28-3-2000 7-3-2000 20 months

7. K-624/05 28-3-2000 27-8-1997 29 months

8. K-625/05 28-3-2000 5-3-1998 24 months

9. K-626/05 28-3-2000 23-4-1998 23 months

10. K-627/05 28-3-2000 10-10-1997 29 months

11. K-628/05 28-3-2000 1-1-1998 25 months

12. K-629/05 28-3-2000 14-3-2000 14 months

13. K-630/05 28-3-2000 22-5-1998 22 months

14. K-631/05 13-3-2001 27-12-1998 26 months

15. K-632/05 13-3-2001 18-2-2000 13 moths

16. K-633/05 13-3-2001 5-5-1998 34 months

17. K-634/05 13-3-2001 16-6-1998 33 months

18. K-635/05 13-3-2001 8-6-1998 33 months

19. K-636/05 13-3-2001 20-6-1998 33 months

20. K-637/05 13-3-2001 25-10-1997 40 months

21. K-638/05 13-3-2001 7-1-1998 38 months

22. K-639/05 13-3-2001 14-7-1997 44 months

23. K-640/05 13-3-2001 25-2-1998 36 months

24. K-641/05 13-3'2001 22-1-1998 37 months

25. K-642/05 13-3-2001 17-12-2000 3 months

26. K-643/05 13-3-2001 14-7-1988 32 months

27. K-644/05 13-3-2001 23-8-1998 30 months

28. K-645/05 13-3-2001 23-11-1997 41 months 29, K-646/05 13-3-2001 24-12-2000 2 months

30. K-647/05 27-1-1999 20-12-1997 13 months

31. K-648/05 27-1-1999 28-1-1998 12 months

32. K-649/05 25-1-1999 14-1-1998 12 months

33. K-650/05 27-1-1999 29-11-1997 14 months

34. K-651/05 25-1-1999 17-7-1998 6 months

35. K-652/05 27-1-1999 24-12-1997 13 months

36. K-653/05 25-1-1999 25-3-1998 10 months

37. K-654/05 25-1-1999 6-4-1998 9 months '

38. K-655/05 25-1-1999 7-5-1998 8 months

39. K-656/05 25-1-1999 28-8-1998 5 months

40. K-657/05 25-1-1999 18-8-1998 5 months

41. K-658/05 27-1-1999 16-9-1998 4 months

42. K-659/05 27-1-1999 28-9-1998 4 months

43. K-660/05 27-1-1999 17-12-1998 1 month

44. K-662/05 22-6-2000 17-6-2000 5 days

45. K-663/05 22-6-2000 24-6-1999 12 months

46. K-664/05 22-6-2000 1-1-2000 6 months

47. K-665/05 22-6-2000 19-5-1999 13 months

48. K-666/05 22-6-2000 23-6-2000 1 day

49. K-667/05 22-6-2000 10-5-1999 11 months

50. K-668/05 22-6-2000 18-7-1999 11 months

51. K-670/05 22-6-2000 26-6-1999 12 months

52. K-671/05 1-7-2000 26-6-1999 12 months

53. K-673/05 1-7-2000 6-4-2000 3 months

54. K-674/05. 1-7-2000 23-5-1999 13 months

11. It has been observed with grave concern that in a few cases, notices were issued after 44 and 38 months instead of six months for the reasons best known to the Customs Authorities. In our view such an inordinate delay cannot be ignored where a specific period pf six months has been provided under section 32(3) of the Customs Act and thus the factum of delay being a mandatory requirement of law has rightly been considered by the learned Division Bench. Even otherwise, the question as to whether the quantity of oil was manifested or recovered being a question of fact has rightly been determined by the learned Tribunal and besides that the conclusion as arrived at in the order impugned being well based does not warrant interference.

12. Before parting with the judgment, we have observed with anguish that a huge loss has been caused to Government exchequer mainly due to the negligence of relevant functionaries of the Customs Department against which action must be initiated by the concerned Collector Customs for dereliction of duty and being inefficient which amounts to misconduct and a report in this regard be furnished to the Registrar of this court within a period of one month for perusal of the Bench in chambers.

13. The upshot of the above discussion is that the appeals being meritless are dismissed. M.W.A./C-4/SC Appeals dismissed.