2002 PLP 290 (CLC)

Mr. Sattar Silat requests that he wants to seek instructions from his client as to when he would be in a position to start payment of installments in terms of his alleged agreement with the Collector Central, Excise. The case is, therefore, adjourned to 12‑2‑1998. (Sd.) Member Technical (Sd.) Member (Judicial)" On 7‑1‑1998 when neither the Department's Representative nor their Counsel was present an order was assed which is reproduced as follows: "7‑1‑1998 Mr. Sattar Silat, Advocate for the Appellant. None for the Respondent. Mr. Sattar Silat, Advocate has filed application stating therein that his client is prepared to pay the installment in terms of settlement made with the Collector Central Excise, Karachi on 8‑6‑1996. Arguments heard. Appeal allowed by order written and separately filed. (Sd.) (Member Technical) (Sd.) Member (Judicial)" Mr. Saeed Khan Ghouri, learned Advocate for the appellant, has argued that during the course of the proceedings before the learned Tribunal, while hearing the arguments of the counsel for Raji Aviation (Pvt.) Limited, respondent No.1 abovenamed, it was observed by the Bench that payment of duty could not be postponed for an indefinite period whereupon Mr. Sattar Silat, learned counsel for the respondent No.1 requested for sometime to seek instructions from his client and the matter was adjourned to 12‑2‑1998 but it was later ante‑dated and heard on 7‑1‑1998 without any notice to the petitioner. After relating the facts of the case and the arguments of Mr. Silat, the Tribunal recorded the explanation for ante‑dating the appeal in para. 11 of the impugned as follows:‑‑ . . "Having reached this conclusion, we told Mr. Sattar the learned Advocate for the appellants that the levy of duty cannot be postponed for an indefinite period. The appellants should make a definite commitment as to the time from which they would start paying the installments. Mr. Sattar thereupon sought time to seek instructions from his clients and the case was adjourned to 12‑2‑1998. However, on the very next day he appeared before us and filed a statement in writing that his clients were prepared to start payment from April, 1998. In view of the above statement we thought it unnecessary to wait upto 12‑2‑1998. Accordingly we ante‑dated the case to dispose it of forthwith. " Without prejudice to his objections on the reasoning of the Tribunal on other aspects of the payment of C.E.D., the learned Counsel for the petitioner submitted that the petitioner had not at any time conceded to the postponement of the payment of duty nor would they have agreed to the same, if the matter would have been taken up in his presence on 12‑2‑1998. However, as the matter was ante‑dated to 7‑1‑1998 without notice to the learned Counsel for the petitioner, the petitioner was condemned unheard. He contended that the order of the Tribunal allowing payment of the outstanding amount of Central Excise duty of Rs.8,23,850 by meager installments of Rs.10,000 per month was illegal, unreasonable and unjust. He placed reliance on Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1961 SC 119 wherein the Honourable Supreme Court held that if the Court refuses to issue notice to the opposite party, the latter would trot be a party to the proceedings and not bound by anything decided therein. In Muhammad Swaleh and another v. Messrs United Grainla d Fodder Agency PLD 1964 SC 72, where a day fixed for hearing was subsequently declared a Court holiday and the Court took up the proceedings on the following day, without notice to the defendant and on his failure to appear ordered ex parte proceedings, the Supreme Court held the proceedings to be void and set aside the ex parte order. In the present case it is evident that no notice of the hearing of 7‑1‑1998 was given to the petitioner by the Appellate Tribunal, the said order is therefore, prima facie, illegal and liable to be set aside. Mr. Abdul Rauf, learned counsel for respondent argued that a vested right had accrued in favour of his client as they had paid a number of installments pursuant to the impugned order, dated 8‑6‑1996, which cannot be varied or set aside now. The argument advanced by Mr. Abdul Rauf cannot be accepted as an investigation against the fabrication of a letter from Dr. Zulfiqar Malik by forging his signature is under investigation by F.I.A. Dr. Zulfiqar Malik has categorically denied his signature on the alleged letter, dated 8‑6‑1996 and therefore, it cannot be relied upon at all. Further, any payment made under a forged and fabricated letter which is denied by the writer himself would not create any vested right in favour of any person. The contention raised is, prima facie, based on a fraudulent document and is rejected. It may be mentioned here that it is not possible to believe that the Collector Central Excise would pass an order for payment of an amount of C.E.D. of Rs.8,23,850 at the rate of Rs.10,000 per month which would take more than 82 months i.e. 6 years and 10 months to pay and that also after Raji Airlines resumes operation which may take several years or which operation may not resume at all. A prudent officer in his senses would not pass such an unreasonable order for recovery of Government Revenue against a person who is in aviation business which is carried on by persons possessing huge finance. In the instant case the petitioner has been prejudiced and prevented from placing the correct facts on record before the Tribunal as no notice of write‑‑dating the case was served on the petitioner. The petitioner was not given opportunity to show that the alleged impugned letter dated 8‑6‑1996 was forged and fabricated, it was denied 'by Dr. Malik, the alleged writer of the letter and that the said document was under investigation by F.I.A. which deficiency led the learned Tribunal into passing the impugned order. The fact of ante‑dating of the hearing from 12‑2‑1998 to .7‑1‑1998 coupled with the fact of non‑issue of notice of hearing to the petitioner for 7‑1‑1998 is not disputed by the respondent and is also borne out from the record. This renders the impugned order void and of no legal effect. The proceedings before the Appellate Tribunal on 7‑1‑1998 were, therefore, without jurisdiction and are liable to be set aside as laid down in the cases of Lt.‑Col. Nawabzada Muhammad Amir Khan (supra) and Muhammad Swaleh's (supra). In view of the conclusion reached above, it is necessary to discuss other arguments advanced by the learned Advocates. This petition is accordingly allowed, the impugned order of the Customs Excise and Sales Tax Appellate Tribunal passed in Appeal No.2‑A of 1997, dated 7‑1‑1998 is hereby set aside and the case is remanded to the Customs, Excise and Sales Tax Appellate Tribunal for disposal of the case on merits after giving proper opportunity to the petitioner. The petitioner shall also be entitled to costs. It is clarified that the Tribunal shall provide full opportunity to the Department to prove by evidence before the Tribunal that the letter dated 8‑6‑1996 allegedly written by Dr. Zulfiiqar Malik is fabricated and not genuine. H.B.T./D‑20/K Petition allowed.