Assistant collector cant decide case 2 karor 80 lakh.

**کلیکٹر آف کسٹمز، لاہور بمقابلہ ساؤتھ ایسٹ ٹریڈنگ** میں لاہور ہائی کورٹ نے اس بات پر فیصلہ دیا کہ کیا اسسٹنٹ کلیکٹر کے پاس اتنی بڑی رقم کے معاملات کا فیصلے کا اختیار ہے جو کہ کسٹمز ایکٹ 1969 کے تحت طے شدہ حدود سے تجاوز کرتا ہے۔

### عدالتی فیصلہ کے اہم نکات:

1. **دائرہ اختیار کی حدود**: کسٹمز ایکٹ 1969 کے سیکشن 179 کے تحت، بڑی رقم کے معاملات کی سماعت کا اختیار کلیکٹر کے پاس ہے، نہ کہ اسسٹنٹ کلیکٹر کے پاس۔ اسسٹنٹ کلیکٹر کا اختیار کم رقم کے معاملات تک محدود ہے۔

2. **معاملے کی تفصیلات**: اسسٹنٹ کلیکٹر نے ایک کیس کا فیصلہ کیا جس میں رقم 28,000,000 روپے سے تجاوز کر گئی تھی۔ یہ ان کی دائرہ اختیار سے باہر تھا جیسا کہ قانون کے تحت طے شدہ حدود ہیں۔

3. **اپیلیٹ ٹریبونل کا فیصلہ**: کسٹمز، ایکسائز اور سیلز ٹیکس اپیلیٹ ٹریبونل نے صحیح طور پر پایا کہ اسسٹنٹ کلیکٹر کی طرف سے فیصلے کی کارروائی دائرہ اختیار سے باہر ہونے کی وجہ سے غلط تھی اور اسے مسترد کر دیا۔

4. **عدالت کا فیصلہ**: لاہور ہائی کورٹ نے اپیلیٹ ٹریبونل کے فیصلے کو برقرار رکھا۔ عدالت نے واضح کیا کہ اگر کوئی اتھارٹی اپنی دائرہ اختیار سے تجاوز کرتی ہے تو اس کی کارروائی قانونی طور پر کالعدم ہوتی ہے۔ کسٹمز ڈپارٹمنٹ کی اپیل مسترد کر دی گئی کیونکہ اسسٹنٹ کلیکٹر نے اپنے اختیار سے تجاوز کیا تھا۔

یہ فیصلہ اس بات پر زور دیتا ہے کہ قانون کی جانب سے طے شدہ دائرہ اختیار کی حدود کی پابندی ضروری ہے، اور ان حدود سے تجاوز کرنے والی کارروائیاں غیر قانونی قرار دی جاتی ہیں۔

2014 P T D 199

[Lahore High Court]

Before Ayesha A. Malik and Abid Aziz Sheikh, JJ

COLLECTOR OF CUSTOMS, LAHORE

Versus

SOUTH EAST TRADING

Custom Appeal No.54 of 2000, decided on 6th May, 2013.

Customs Act (IV of 1969)---

----Ss.179 & 2(a)---Adjudicating authority---Power of adjudication---Import of goods---

Enhancement of value---Scope---Issue of valuation was adjudicated upon by Assistant Collector

who found that the value of goods had been understated and directed the respondent / importer to

pay different amount for customs duties and taxes---Said order of Assistant Collector was set

aside by Appellate Tribunal on the ground that under S.179(1) of the Customs Act, 1969 the

Assistant Collector did not have jurisdiction to adjudicate upon the matter---Customs

Department impugned said order of Appellate Tribunal---Validity---Perusal of S.179 of the

Customs Act, 1969 revealed that each authority working under the hierarchy of the customs

department had been assigned a job to perform its duties within the parameter as specifically

provided under the law and said hierarchy did not include Assistant Collector---Admitted on the

record that adjudication was done by Assistant Collector regarding an amount of Rupees

28,876,294 whereas under S.179(1) of the Customs Act, 1969 the authority to adjudicate upon

the case exceeding Rupees 15,000,00 vested only with the Collector----Order-in-original was

therefore, without jurisdiction making the entire proceedings coram non judice---Any

transgression to the responsibility assigned within the parameters of S.179(1) of the Customs

Act, 1969 would render the entire exercise of authority ab initio void and illegal----Findings of

Appellate Tribunal could not be interfered with---Appeal was dismissed, in circumstances.

Mansab Ali v. Amir PLD 1971 SC 124; Faqir Abdul Majeed Khan v. District Returning

Officer and others 2006 SCMR 1713 Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD

1958 SC 104; Saeed Farooq v. State and 2 others 1996 MLD 434 and Collector of Customs,

Model Customs Collectorate of PACCS, Karachi v. Messrs Kapron Overseas Supplies Co. (Pvt.)

Ltd. Karachi 2010 PTD 465 rel.

Miss Amna Warsi for Appellant.

Mian Abdul Ghaffar for Respondent.

Date of hearing: 18th April, 2013.

JUDGMENT

ABID AZIZ SHEIKH, J.---Through this custom appeal a number of questions were formulated

by the appellant which were said to have arisen from the impugned judgment dated 17-11-2000

passed by the Customs Excise and Sales Tax Appellate Tribunal Lahore in Custom Appeal

No.699/LB of 2000. On 7-11-2012, at the time of arguments of this appeal only one question of

law was formulated:--

"Whether the officer passing the impugned judgment had the jurisdiction to pass the said

judgment. While the stance of the appellant is that the said officer had such jurisdiction, the

respondent is of the view that the impugned order was passed without jurisdiction."

Briefly, the facts of the case are that the respondent imported various consignments of

plastic scrap and waste during May, 1996 and sought their clearance on payment of customs duty

and other taxes. The customs staff examined the goods and it was found that their value was

under stated. The staff ascertained the value of the subject consignment at U.S. $ 185 per M. Ton

as against the declared value of U.S.$ 50 per M. Ton. The assessment was thus completed by the

appraisal officer and customs duty and other taxes were worked out on the basis of the enhanced

value. As per direction passed in writ petition, the Customs Authorities released the consignment

in question on payment of customs duty and other taxes on the basis of the declared value and

subject to indemnity bond for different amount. Subsequently issue of valuation was adjudicated

by the Assistant Collector Dry port, vide order dated 14-9-2000 who held that the value was not

correctly declared and directed respondent to pay the differential amount. The order dated 14-9-

2000 was challenged and the same was set aside vide impugned order dated 17-11-2000 passed

by Custom Excise and Sales Tax Appellate Tribunal.

The learned counsel for the appellant argued that the order dated 14-9-2000 was not

without jurisdiction. The learned counsel referred to section 2(a) of the Customs Act, 1969

containing definitions of "Adjudicating Authority" to argue that any authority including

Assistant Collector is competent to adjudication and such adjudication is not restricted to officers

mentioned in section 179. It is argued that the order passed by the Adjudicating Officer was

under section 80 of the Act read with S.R.O. 56(I)/93 dated 19-1-1993; that the conceding

statement of the departmental representative before the Tribunal to the effect that Adjudicating

Officer acted beyond jurisdiction was result of misunderstanding and there is no estoppel against

the law.

Conversely, the learned counsel for the respondent argued that order dated 14-9-2000

passed by the Assistant Collector of Customs was absolutely without jurisdiction and she was not

competent to pass such order as per pecuniary jurisdiction provided under section 179 of the

Customs Act, 1969 to adjudicate. The learned counsel for the respondent pointed out that the

representative of the department herself conceded before the Tribunal that Adjudicating Officer

was not authorize under the law to decide this case and suggested that the same 'be remanded for

de novo consideration.

We have heard the learned counsel for the parties and perused the record as well as the

impugned judgment passed by the Appellate Tribunal and the relevant provisions of law in the

instant case with their able assistance. In order to adjudicate the question of law, we have to

briefly reiterate the events of facts. It is admitted position as specified in order dated 14-9-2000

that the concerned officer completed the assessment of goods under section 80 of the Customs

Act, 1969 on the enhanced value of US $ 185/M.T. in exercise of the powers conferred upon him

in terms of notification No. S.R.O. 56(I)/93 dated 19-1-1993. Thereafter the proceedings for

recovery of outstanding Government dues amounting to Rs.27775263 were initiated vide letters

dated 2-4-1998, dated 10-11-1999 and 20-11-1999. Finally, in letter dated 11-2-2000 the total

liability was calculated to Rs.28876294.00 by way of making addition of Rs.459901 and

Rs.684434 which was subject matter of the adjudication vide order Original No.50 of 1997 dated

18-12-1997 and No.49 of 1997 dated 18-12-1997.

Simultaneously, the importer/respondent agitated against enforcement proceedings and

desired that issue of valuation may be decided through the process of normal assessment.

Accordingly, adjudication was done and impugned order in original dated 13-9-2000 was passed

by the Assistant Collector.

The above facts show that the order in original dated 14-9-2000 was the result of

adjudication under section 179 of the Customs Act.

Section 179 of the Customs Act, 1969 relates to the powers of Adjudication which is

reproduced hereunder:--

"179 Power of adjudication.---(1) Subject to subsection (2) in cases involving

confiscation of goods or imposition of penalty under this Act or the rules made thereunder, the

jurisdiction and powers of adjudication of the Officers of Customs in terms of amount of duties

and other taxes involved, excluding the conveyance, shall be as follows:-

(i)

Collector

Without limit.

(ii)

Additional Collector

Confiscation of goods the value of which

does not exceed Rs.1,500,000 excluding

the value of conveyance and the value of

non-dutiable goods, and imposition of the

penalty under the rules.

(iii)

Deputy Collector

Confiscation of goods the value of Which

does not exceed Rs.500,000 excluding the

value of conveyance and the value of nondutiable goods, and imposition of the

penalty under the rules.

A perusal of the above referred section reveals that each authority working under the

hierarchy of the customs department has been assigned a job to perform his duties within the

parameter as specifically provided under the above law. This hierarchy does not include

Assistant Collector.

It is admitted fact that the adjudication was done by Assistant Collector on 14-9-2000

regarding amount of Rs.28,876294.00, whereas under section 179(1) the authority to adjudicate

upon the case exceeding Rs.1500,000 vests only with the Collector. The arguments advanced by

the learned counsel for the appellant that Assistant Collector was competent to adjudicate the

matter due to the definitions of "adjudicating authority" under section 2-(a) and power of

Assessment under section 80 of the Act read with S.R.O. 56(I)/93 dated 19-1-1993, has no force

because under section 80 read with S.R.O. 56(I)/93 dated 19-1-1993, only

Superintendent/Principle appraisal could do Assessment of duty, which assessment was already

done by the competent Authority, much before adjudication dated 14-9-2000. Therefore, the

order was without jurisdiction making the entire proceedings coram non judice. Reliance is

placed on Mansab Ali v. Amir (PLD 1971 SC 124); Faqir Abdul Majeed Khan v. District

Returning Officer and others (2006 SCMR 1713) Yousaf Ali v. Muhammad Aslam Zia and 2

others (PLD 1958 SC 104) and Saeed Farooq v. State and 2 others (1996 MLD 434).

10.

Any transgression to the responsibility assigned within the parameter of section 179(1) of

the Customs Act would render the entire exercise of authority to be ab initio void and illegal.

Reliance is placed on Collector of Customs, Model Customs Collectorate of PACCS, Karachi v.

Messrs Kapron Overseas Supplies Co. (Pvt.) Ltd., Karachi (2010 PTD 465).

11.

Under the circumstances, we are not inclined to interfere with the findings of the

Appellate Tribunal. Accordingly, the Question No.1 is answered in negative. Accordingly, this

appeal stands dismissed.

KMZ/C-16/L Appeal dismissed

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