1989 PLP 4310 (MLD)

4. Being aggrieved by the above order, the petitioner preferred an appeal under section 188 of the Sea Customs Act, 1878. The Collector of Customs, Peshawar, by his judgment dated 26th June, 1981, held that the Customs Act, 1969, was not applicable, as it had not been extended to the Federally Administered Tribal Areas, and, therefore, no penal action under the same could be taken. He also held that section 167 (37) of the Sea Customs Act, 1878, way also not applicable, as it related to offences under sections 86 and 137 of the Sea Customs Act, which did not relate to misdeclaration. He, therefore, remanded the case to the Deputy Collector of Customs, Peshawar, for fresh decision.

5. Being aggrieved by the above decision, the petitioner filed a revision petition before the Central Board of Revenue under section 191 of Sea Customs Act, 1878.

6. Meanwhile on 27th September, 1981, the Deputy Collector of Customs, Peshawar, heard the case on remand and passed the same order as he had done on 31st March, 1981.

7. On 3rd December, 1981, the Central Board of Revenue heard the revision petition filed by the petitioner against the Collector's order dated 26th June, 1981. It upheld the said order, set aside the order of the Deputy Collector Customs, Peshawar, dated 27th September, 1981 and directed the Deputy Collector of Customs, Peshawar to reconsider the matter and give a fresh decision.

8. On 21st March, 1982, the Deputy Collector of Customs, Peshawar, reheard the case and passed the same order as he had done on 31st March, 1981.

9. Being aggrieved by the above order, the petitioner preferred an appeal before the Collector of Customs (Appeals). On 2nd November, 1982, the Collector of Customs (Appeals,) Lahore, issued notice to the petitioner under section 193 of the Customs Act, 1969, to show cause why the fine and penalty should not be enhanced. On 12th November, 1982 the petitioner filed its reply thereto. On 25th May, 1982, the learned Collector of Customs (Appeals), Lahore, heard the appeal, found the petitioner guilty of misdeclaration under section 39 of the Sea Customs Act, 1878, and ordered the petitioner to pay redemption fine of Rs. 2.00,000 and personal penalty of Rs. 50,000 under section 167 (9‑B) of the Sea Customs Act.

10. Being aggrieved by the above decision, the petitioner filed a W.P. No. 2223 of 1983 before the Lahore High Court, which was allowed on 4th June, 1983, with the direction that the Collector of Customs, Peshawar, should rehear the appeal against the order of the Deputy Collector of Customs, dated 21st March, 1982.

11. On 9th August, 1983, the Collector of Customs. Peshawar reheard the. appeal. He held that the Customs Act, 1969, was not applicable, as it had not been extended to the Federally Administered Tribal Areas, and that, therefore, the order passed by the Deputy Collector of Customs under the provisions of the said enactment and section 167 (37) of the Sea Customs Act, 1878, had no legal efficacy. He, therefore, allowed the appeal and vacated the penal action taken against the petitioner.

12. On 14th January, 1985, the Central Board of Revenue issued notice to the petitioner under section 195 of the Customs Act as to why the order of the Collector of Customs (Appeals), Lahore, dated 9th August, 1983 should not beset aside. The petitioner tiled a W.P. No. 575 of 1985 against the same, which was dismissed in limine on 16th February, 1985. The petitioner then sent its reply to the show‑cause notice on 3rd March, 1985. The Central Board of Revenue on 10th June. 1985 set aside the order of the Collector of Customs (Appeals), Lahore, dated 9th August, 198 and imposed redemption fine of Rupees Fifteen thousand (Rs. 15,000) and personal penalty of rupees Ten Thousand (Rs. 10,000).

13. Being aggrieved by the above order, the petitioner filed a writ petition in the High Court, which is now before me for disposal.

14. I have heard the arguments of the learned counsel for the petitioner and the respondents and have perused the record. This is a case relative to March 1981, when the goods were sought to be exported via Land Customs Station at Torkham. Prior to 1st January, 1970 the Sea Customs Act, 1878, was applicable at Torkham, as the President of Pakistan had extended the application of this Act to the Tribal Areas vide the Tribal Areas (Application of Acts) Regulation, 1965. On 1st January, 1970 the Customs Act, 1969, ‑came into force in Pakistan. By virtue of section 1 (2), it extended to the whole of Pakistan. By virtue of section 220, the Sea Customs Act, 1878, stood repealed in toto. In view of Article 247 (3) of the Pakistan Constitution, the provisions of the Customs Act, A 1969, could not apply to the Federally Administered Tribal Areas till the President of Pakistan extended the application of this Act to the said Areas. In the absence of fresh Regulations under Article 247 of the Pakistan Constitution by the President and the Governors making the Customs Act, 1969, applicable to the Tribal Areas, the said Act was not applicable in the Provincially Administered Tribal Areas and in the Federally Administered Tribal Areas. It was not until 2nd July, 1975 that the Customs Act, 1969, was extended to the Provincially Administered Tribal Areas by the North‑West Frontier Province (Application of Laws) Regulation, III of 1975. Likewise, it was not until 7th January, 1984, that the Customs Act, 1969, was extended to the Federally Administered Tribal Areas by the Customs Act, 1969 (Application to the Federally Administered Tribal Areas) Regulation I of 1984. Under section 3 (46) of the General Clauses Act, ' 1897, "Regulation" means a regulation made by the President or by the Governor under Article 247 of the Constitution of 1973. Since Regulation I of the 1984 did not impliedly repeal the Regulation of 165 till 7th January, 1984, the Seal Customs Act, 1878, continued to remain applicable to the Federal Administered Tribal Areas till 7th January, 1984. Thus the Sea Customs Act 1878, was applicable to the case of the petitioner.

15. Under section 188 of the Sea Customs Act, 1878, the order of the Collector of Customs (Appeals), Lahore, dated 9th August, 1983 passed in appeal was final, as under section 191 no revision lay in appealable cases. Section 191 of the said Act only empowered the Central Government, on the application of a person aggrieved by a decision or order passed under the Act and from which no appeal lay, to reverse or modify such decision or order. It did not confer suo motu revisional powers on the Central Government or the Central Board of Revenue. Suo motu revisional powers were conferred for the first time on the Central Board of Revenue and the Collector by section 195 of the Customs Act, 1909. However, till the date that the Customs Act, 1969, and its rules were extended to the Federally Administered Tribal Areas, there were no suo motu revisional powers with the Central Board of Revenue to disturb the finding of the Collector of Customs (Appeals), Lahore, dated 9th August, 1983. The notice issued by them Central Board of Revenue to the petitioner under section 195 of the Customs Act, 1969, on 14th January, 1985 could not be extended to open up a case under the Sea Customs Act, 1878, which had attained finality. The second proviso to subsection (l.) of section 221 of the Customs Act, 1969, prevents cases decided under the Sea Customs Act, 1878. from being opened, if the orders have attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which no suo motu revision lay under that Act.

16. For the foregoing reasons, this petition is accepted and the order of the Central Board of Revenue dated 10th June, 1985 is declared to have been passed without lawful authority and is set aside.

17. There shall be no order as to costs. A.A./W‑62/L. Petition accepted.