JUDGMENT SHABBIR AHMED, J.- This order shall dispose of the objection taken by the respondents about the maintainability of the above appeals filed by the Director, Directorate General of Intelligence and Investigation (Customs and Excise), Karachi, in above appeals, the plea raised emanates in the following facts and circumstances:- The respondents are manufacturer of footwear, allegation against them was that they imported raw material (Isocyanate and Polyol) from Thailand by under-invoicing on different dates. The difference of value was worked out to the tune of Rs. 5,61,85,978/-. A contravention report was forwarded by the staff of Customs Intelligence to the Collector of Customs (Adjudication) for initiation of adjudication proceedings, who served a show-cause notice to the respondent No. 1 and after hearing the Collector of Customs (Adjudication-I), Karachi passed Order-in-Original No. 57 of 2001, dated 23.5.2001 against the respondent No.
1. The respondent No. 1 aggrieved by the said order preferred an appeal before Tribunal which was allowed by impugned order, dated 18.7.2002. The Director, Directorate General of Intelligence and Investigation (Customs and Excise), Karachi has filed the appeal before this Court under the provisions of under Section 196 of the Customs Act. The provisions of Section 196 pertaining to the appeal to High Court, which reads as follows:-- "196. Appeal to High Court. -- (1) An aggrieved person or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under Section 194- B.
(2) The appeal under this section shall be filed within sixty days of the date upon which an aggrieved person or the Collector is served with notice of an order under Section 194-B.
(3) Where an appeal is filed under sub-section (1) by the aggrieved person, it shall be accompanied by a fee of one thousand rupees."
2. it was the contention of Mr. Farogh Naseem that the terms aggrieved person' and 'the Collector' used in Section 196(1) are significant. His contention was that term 'aggrieved person' is referable to the party and the Collector, the Department. He further contended that the Collector is exempted from the payment of Court-fee and the aggrieved party is required to pay a Court-fee of Rs. 1000/- in terms of sub-section (3) of Section 196. His further contention was that the Director could have filed the appeal provided the Director has been entrusted with the function and powers of the Collector.
3. Conversely, Raja Muhammad Iqbal maintained that the expression 'aggrieved party' is of wide connotation it includes the officers of the Customs as well, if the official is aggrieved by the impugned order. He pointed out that contravention report was submitted by the appellant, therefore, he is aggrieved person. To support his contention, he referred the provisions of appeal in other taxing enactments, such as, Central Excises Act, 1944, Sales Tax Act, 199Q. in Central Excises Act, the provision for appeal is contained in Section 36-C which is para materia to the provisions of Section 196 of the Customs Act, which reads as follows:-- "36-C. Appeal to High Court. -- (1) An aggrieved person or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under Section 35- C."
4. in Income Tax Ordinance, 1979 the provisions for appeal to the High Court (now repealed), the expression used was assessee or the Commissioner, whereas, in Sales- Tax Act the provision of appeal is contained in Section 47 particularly, sub-section (2) thereof provides for filing an appeal within sixty days of the date upon which the aggrieved persons or the Collector is served with notice of an order under Section 46, which is also para materia to the provisions contained in Customs Act.
5. Hid further contention was that 'aggrieved person' can file the appeal in view of the dictum of the apex Court in H.M. Saya and Co. v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65).
The question for consideration in the said case was whether a stranger to a suit or proceeding can file an appeal if he is adversely affected by an order in that suit or proceeding with reference to the Sections 96 and 104 of the Civil Procedure Code. The View taken was that it is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice, it was further observed that the Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and Section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that a decree or the order adversely affects a person he should be permitted to challenge the same in appeal even if he to made a party to the original suit or proceeding.
6. The dictum of H.M. Saya and Co. Supra) laid down by Supreme Court was followed by the Division Bench of this Court in Hussain A. Haroon v. Mrs. Laila Sarfaraz and others (2003 CLC 771). The judgment was recorded by one of us (Shabhir Ahmed, J.) and view taken was that a stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal against an order passed therein whereby he is aggrieved.
7. in the instant case, in terms of Section 196 as reproduced above, the expression 'aggrieved party' and 'the Collector' have been used. If term 'aggrieved party' is referrable to the any Officer of Customs authorized on his behalf then the expression 'the Collector' would be redundant, it is golden principle of the interpretation that the redundancy cannot be attributed to the legislation.
The right of appeal is not an inherent right but a statutory right. The legislation has confined the right of appeal on the Collector and has not left the right of filing appeal at the discretion of the Central Board of Revenue. Therefore, to contend that an Officer of the Customs can file an appeal, in our view, is not correct.
8. Next question which requires consideration is whether the Director, Directorate General of Intelligence and Investigation (Customs and Excise), Karachi has been clothed with the function and powers of the Collector to enable him to file the appeal. A reference has been made to the S.R
6. No. 388(l)/82, dated 22nd April, 1982 issued by the Central Board of Revenue in supersession of earlier Notification authorizing the Officers of the Directorate of Intelligence and Investigation Customs and Excise) specified in column (2) of the tables therein to exercise the powers and discharge the duties of the officers of custom under the provisions of the said Act specified in column (3) of the said table. The Director of Intelligence and Investigation (Customs and Excise) has been empowered to discharge the duties under the provisions of Sections 26, 48, 60, 91, 92, 139, 157(2). 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198,
199. The above SRO reads as follows:-- "Notification No. S.R.O. 388(l)/82, dated 22nd April, 1982. - in exercise of the powers conferred by Sections 3 and 4 of the Customs Act, 1969 (IV of 1969), and in supersession of its Notification No. S.R.O. 413(l)/73, dated the 21st March, 1973, the Central Board of Revenue is pleased to authorize the officers of the Directorate of Intelligence and Investigation (Customs and Excise) specified in ' column (2) of the table below to exercise the powers and discharge the duties of the officers of Customs under the provisions of the said Act specified in column (3) of the said table within the area of their respective jurisdiction:- TABLE S. No. Officers Provisions of the Customs Act, 1969
1. --------------- ------------------------------------------- 2 ---------------- ----------- ------------------------------------ 3 ------- -------------------------------------------- 4 -------- ------------------------------------------ -- 5 ------- ------------------------------------------------ 6 ------- ----------------------- ----------------------- 7. Director of Intelligence and Sections 26, 48, 60, 91, Investigation (Customs and 92, 139, 157(2), 158, 159, Excise) 160, 161, 162, 163, 164, 165, 166, 167, 168(1 )(3) and (4), 171, 174, 175, 198, 199.".
9. Circular No. I of 1997 issued under the Order No. 3(4) 111, dated 10th March, 1990 and Central Board of Revenue, by the Director, Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad, pertaining to the Charter of functions of Directorate General of Intelligence and Investigation (Customs and Excise) was also brought to our notice, whereby the Directorate was authorized, inter alia, to collect information and intelligence about evasion of Customs and Central Excise Duties and Sales Tax and smu ggling of contrabands including narcotics and to perform enforcement of duties and to carry out preventive operations throughout the country related to smuggling, evasion of Federal taxes through clandestine removal of dutiable goods, misdeclaration valuation frauds, fraudulent claims of refund and rebate etc. And to detect and investigate cases cognizable the prevention of Smuggling Act, 1977.
10. Except the above S.R.O, and the Circular, none, has been brought to our notice to show that the Director, Directorate General of Intelligence and Investigation (Customs and Excise), has been delegated with the powers of Collector to file an appeal under Section 196. The case of H.M. Sayo & Co. (supra) referred by Raja Muhammad Iqbal, learned counsel for the appellant is distinguishable with the facts of the instant case.
11. in Sections 96 and 104 of Civil Procedure Code, right of appeal has not been conferred to 'specified party', whereas under Section 196 of the Customs Act, two expressions have been used an 'aggrieved person' and 'the Collector' restricting the right of appeal to said parties. No doubt the right of appeal against the order of Collector (Appeal) has been provided to Board and or the Collector Customs in terms of sub-section (2) of Section 194-A. in the same line, the legislation could have extended the right of appeal to Officers of Customs against the order of the Tribunal, instead of to the Collector only.
12. We are of the view that the expression 'aggrieved person' and the 'Collector' used in Section 196 are significant. The expression 'aggrieved person' denotes a person who has got a legal grievance i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffer some sort of disappointment as in the instant case. The Director might have been disappointed for the reason that a proceeding initiated on his initiative has failed; but he has not suffered any personal injury.
13. The interpretation of term 'aggrieved party' is in line with the definition of 'aggrieved person' given in the Black's Law Dictionary, Sixth Edition which defines it as 'one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation, in the light of above definition, the Director cannot be termed to be an 'aggrieved party'.
14. in the light of the above discussion, we are of the view that the Director cannot be termed to be the 'Collector' in absence of any authorization for exercise and discharge of functions of the Collector nor he is an aggrieved person, the Director cannot file the appeal. Resultantly, the above appeals filed by the Director, Directorate General of Intelligence and Investigation (Customs and Excise), are not competently filed. Therefore, the appeals are not maintainable, which are dismissed in limine alongwith listed applications.