2002 PLP 3118 (YLR)

‑‑‑‑S.196‑‑‑Appeal to High Court‑‑ Maintainability‑‑‑Question of law‑‑‑Failure to raise such question‑‑‑Validity‑‑‑Appeal under S.196 of the Customs Act, 1969, was only permitted in. respect of any question of law, arising out of an order under S.194‑B of the Customs Act, 1969, viz. order of Appellate Tribunal‑‑‑Where the appellant failed to raise any question of law as prescribed in S.196 of the Customs Act, 1969, appeal was not competent. Mansab Ali v. Amir and 3 others PLD 1971 SC 124 ref. (c) Customs Act (IV of 1969)‑‑‑ ‑‑‑‑S.196‑‑‑Appeal to High Court‑‑ Concurrent findings of fact by the Courts below‑‑‑Interference in such findings‑‑‑Both the Tribunals below had given concurrent findings of fact against the appellant after proper appreciation of evidence ‑‑‑Effect‑‑ Well‑considered concurrent findings of facts justified by the record, would not be interfered with by High Court, unless there was any illegality or material irregularity‑‑ Appeal lies when same is expressly permitted by the statute or by the rules having the force of law‑‑‑Appeal though was continuation of original proceedings yet its scope was to be determined by the law or rule under which it was preferred‑‑‑Appeal was preferred under S.196 of the Customs Act, 1969, and there being no illegality or material irregularity committed by the Tribunals below and no question of law having arisen out of the orders passed by the said Tribunal‑‑‑High Court declined to interfere with the concurrent findings of fact by the Tribunals. Tariq Najeeb Chaudhry for Appellant. Jawahar A Naqvi for the Custom Deportment. The brief facts out of which the present appeal arises are that the staff of the Directorate of Intelligence and Investigation (Customs & Excise), Lahore kept a secret surveillance on the factory premises of appellant holding Central Excise Licence No.L‑1/21, were allegedly involved in the clandestine removal of raw‑material imported against concessionary rate of duties and taxes under S.R.O. 501(I)94, dated 9‑6‑1994 and 24(I)96 dated 8‑1‑1996 without payment of Custom duties or taxes and without any lawful Authority. The goods of the appellant was seized on 29‑3‑1997 and the report was submitted to the competent Authority. The Collector issued show‑cause notice to the appellant for committing the aforesaid offences or irregularities. The appellant filed reply of the show‑cause notice controverted the allegation levelled in the show‑cause notice.

2. Respondent No.1 after providing proper hearing to both the parties decided the case against appellant vide judgment dated 28‑7‑1997. The appellant being aggrieved, filed appeal before the Appellate Tribunal. The Appellate Tribunal decided the appeal against the appellant vide order dated 15‑2‑1999, hence the present appeal.

3. The learned counsel of the appellant submits that impugned orders of the Tribunal below are not sustainable in the eyes of Law. He further submits that allegation of shortage of raw‑material in R.G.2 Godown was proved wrong in the proceedings before the Collector, therefore, basic link is found to be without lawful authority. The super. Structure should have been fallen on the ground automatically, but this fact was not considered by the both Courts below. He further submits that impugned judgment of the Tribunal below are in the violation of the mandatory provisions of sections 162, 163 and 171 of the Customs Act, 1969. He further submits that notice was not served appellant in terms of section 171, this fact was not considered by both the Courts below in its true perspective. He further submits that the Deputy Director of Intelligence and Investigation (Customs & Excise) Lahore vide letter dated 14‑6‑1997 illegally and without jurisdiction directed the Deputy Collector of Customs not to release the Bank Guarantee of the appellant till the decision of the case. He further submits that rights and liabilities created under S.R.O. 501(I)/94 and S.R.O.24(I)/96 being special provision of law will supersede, but this fact was not considered by the Tribunal below.

4. The learned counsel of the respondents submits that Muhammad Hameed, Managing Partner had given confessional statement before the respondents which was scrutinized by all the authority below, therefore, appellant could not be wriggled out from the statement of his Managing Partner. He further submits that the appellant knowingly tried to circumvent the relevant provisions of law malafidely by disposing of raw‑material in the local market. He further submits that Tribunal below had given concurrent findings of the fact against the appellant and the appellant's counsel failed to point out any irregularity or illegality in the judgment of Tribunal below and did not raise any question of law before this Court, therefore, appeal is not competent.

5. We have given our anxious consideration of the contentions of the learned counsel for the parties and perused the record our-self. It is admitted fact that Managing Parnter, Muhammad Hameed had given confessional statement before the respondents, which was scrutinized by the Tribunal below, therefore, appellant is estopped to wriggle-out from his statement on the well‑known principle of approbate and reprobate as a principle laid down in Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (P.L.D 1971 Supreme Court 376). The appeal has been preferred under section 196 of the Act. The scope of this section is limited. It only permits appeal in respect of any question of Law, arising out of an order under section 194‑B viz. order of Appellate Tribunal, which is a condition precedent to exercise power under section 196 of the Act. Appellant failed to raise any question of law as prescribed in aforesaid section, therefore, appeal is not competent as per principle laid down in Mansab Ali v. Amir and 3 others (P.L.D 1971 Supreme Court 124). It is pertinent to mention here that both the Tribunals below have given concurrent findings of fact against the appellant after proper appreciation of evidence.' It is settled Principle of Law that well‑considered concurrent findings of facts justified by the record, will not be interfered with by this Court, unless there is any illegality or material irregularity, which is not the case here. Appeal lies when so is expressly permitted by the statute or by the rules having the force of statute. It is a continuation of original proceedings but its scope is to be determined by the law or rule under which it is preferred under section 196 of the Customs Act, 1969. The appeal lies of any question of law arise out of impugned order. In this case, no question of law has been specifically raised at the time of arguments before us and the points agitated are substantially of facts, which have been resolved by two forums below. Under the circumstances the appeal is not‑maintainable and has no force and the same is dismissed. Q.M.H./M.A.K./M‑1093/L Appeal dismissed.