1. This appeal under section 196 of the Customs Act, 1969 is directed against the order, dated 28-5- 2002 passed by the learned Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-I, whereby an application under section 194-B(2) of the Customs Act, 1969 was dismissed with finding that a review was sought through the said application, which was not available in law.
2. Although in the memo. Of appeal learned counsel for appellant has proposed as many as six questions of law. However, during the course of arguments he has stated that the sole question requiring consideration is, whether the rectification application was in substance a review application or a rectification application seeking rectification of a mistake apparent from the record.
3. Learned counsel for appellant was confronted with the scope of section 194-B(2) of the Customs Act, 1969 and was asked to dilate on the scope of rectification of the mistake apparent from the record. Learned counsel submitted that the scope of subsection (2) of section 194-B of the Customs Act, 1969 is much wider than the provisions contained in section 35 of the Income Tax Act, 1922 and section 156 of the Income Tax Ordinance, 1979. In support of his contention, he placed reliance on a Division Bench judgment of the Lahore High Court in the case of Muhammad Maqbool v. Additional Collector of Customs (2002 PTD 1587). In this judgment it has been held by a learned Division Bench of. Lahore High Court that the scope of the provision of section 194-B(2) of the Customs Act, 1969 is wider than the parallel provision contained in section 156 of the Income Tax Ordinance, 1979.
4. However, the learned counsel has frankly conceded that the words used in section 194-B(2) of the Customs Act, 1969 are exactly same as in section 156 of the Income Tax Ordinance, 1979. Learned counsel is not able to assign any reason as to how the scope of section 194-B(2) of the Customs Act, 1969 is wider to the similar provision contained in section 156 of the Income Tax Ordinance, 1979, in the were of similar words used in the legislature. On facts, he has conceded that rectification sought in the cited judgment was of trifle nature and actually fell within the ambit of mistake apparent from the record.
5. Coming to the facts of the present case the learned counsel for appellant has taken us through the operative part of the order, dated 23-5-2000 in Appeal No.1662 of 1999. The said operative part was sought to be rectified through the application under section 194-B(2) of the Customs Act, 1969.
6. Learned counsel has conceded that the operative part of the order passed by the Tribunal sought to be rectified is a deliberate order with conscious application of mind. He is not able to show that a wrong order, which has been made deliberately and with conscious application of mind, can be termed as an order suffering from mistake apparent from the record. While rejecting the application submitted by the appellant, the learned Tribunal has observed that, in fact, review of the order passed by the Tribunal is sought and no such jurisdiction has been conferred on the Tribunal, therefore, the application is not maintainable. We have gone through the rectification application and have found that the prayer in the said application was to modify the order passed by the Tribunal. There was no prayer that there is some mistake floating on the face of record which may be rectified.
(1) CIT v. Qureshi Brothers 1986 PTD 100, (2) CIT v. National Food Industries 1992 PTD 570 = 1992 SCM R 687 and (3) Baqar v. Muhammad Rafique (2003 SCMR 140).
7. For the foregoing reasons, the appeal is without substance which stands dismissed in limine along with listed application. .