IMTIAZ ALI, J.---This reference application filed by Collector Customs Peshawar under section 196 of the Customs Act, 1969 is directed against the order of Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar Bench order dated 22-10-2008, whereby on acceptance of appeal filed by respondent, learned Tribunal was pleased to order the release of vehicle in question, unconditionally.
2. Brief facts of the case are that a Toyota Hiace Van bearing Registration E-4662-Peshawar was intercepted near Toll Plaza Mansehra, respondent who was driving the car at the relevant time on demand produced registration book of the vehicle. During investigation vehicle was referred to FSL Crime Branch Peshawar for examining of chassis number. FSL opinion dated 9-4-2004 is reproduced below:-- Observation The chassis number of the vehicle bearing Registration No, Peshawar-E/4662 was subjected to chemical treatment and observed the following: - No's Before Chemical Treatment No's After Chemical Treatment Chassis No.LH115-0000411 Chassis No.LH115-0000411 Opinion No other number was deciphered. However, the metallic piece measuring 2X3 bearing number LH115 is welded and refitted. The other portion of the chassis plate bearing figures is genuine one.
3. On receipt of above report of FSL vehicle in question was formally seized and a show-cause notice was issued to the respondent who is response to the notice, besides registration book also tendered bill of entry of the vehicle. The vehicle was confiscated by Adjudicating Officer vide order- in-original dated 24-3-2007, wherein, it was held that since as per report of FSL referred to above chassis number had been welded and refitted and also because bill of entry submitted by respondent could not be verified by Collectorate of Appraisement, Customs House Karachi for the reasons that record for the relevant period i,e, 1991 had been destroyed, therefore, it stood established that vehicle in question is non-duty paid and brought into the country through unauthorized routs and was hence, liable to outright confiscation.
4. Appeal filed by respondent against order-in-original was also dismissed by Collector Customs vide his order dated 2-7-2007. However, further appeal filed before Customs Federal Excise and Sales Tax Appellate Tribunal, Peshawar has been accepted and the Tribunal has ordered release of vehicle to the respondent, unconditionally. Learned Tribunal after examining the record of the case held that it was an old vehicle of 1991 model and as due to damage because of rusting etc. Some digits of chassis numbers were not legible, therefore, respondent had duly applied to Motor Registration Authority seeking permission for repair of said portion of the chassis number which permission was granted to him after due examination of the vehicle by MVE Mansehra and this fact was duly supported by documentary evidence produced by respondent.
5. We have heard learned counsel for the parties at length and have also gone through the record of the case.
6. At the outset learned counsel for respondent raised preliminary objection to the maintainability of present reference application. His first contention is that no question of law arises from the judgment of learned Appellate Tribunal to call for interference by this Court in its advisory jurisdiction under section 196 of the Customs Act, 1969 because question involved in this case was purely a question of fact.
7. Perusal of relevant provisions relating to appeal and revisions provided under Chapter-XI of the Customs Act reveals that under section 193 thereof an appeal is provided to Collector (Appeals) against any decision or order passed under section 179 of the Act by an Officer of Customs. Any order passed thereon is subject to a further appeal to the Appellate Tribunal under section 194-A of the Customs Act. Finality is attached to the order passed by the Appellate Tribunal on appeal because sub-clause (4) of subsection 194-B provides that save as otherwise expressly provided in section 196 an order passed by the Appellate Tribunal in appeal shall be final. This brings us to the provisions of section 196 of the Customs Act which is subject-matter of present discussion.
Section-196 titled Reference to High Court provides that an aggrieved person or the Collector may prefer an application, to the High Court, stating any question of law arising out of such order and the High Court if satisfied that a question of law arises out of the order, may proceed to hear the case. The scheme of the provisions referred to above, unambiguously lays down that Appellate Tribunal is final arbiter of determining questions of facts as well as mixed questions of the facts and law and finality is attached to such orders, so far as hierarchy provided by the Customs Act, 1969 is concerned. A reference could only be made to the High Court under section 196 where a pure question of law arises out of the order of Appellate Tribunal. So much so that the High Court cannot even enter upon the controversy brought before it and proceed to hear the case unless it is satisfied that a question of law arises out of such order. A question of law simply stated would be a question which either requires interpretation of a provision of law or applicability or otherwise of any such provision to a particular set of facts. Even a question which requires determination of scope and/or area of mischief of a statutory provision would also be covered in the term question of law. A question of law did not require investigation of facts and thus a question involving factual inquiry into facts or to which answer could only be given after examining and assessing the facts will not be a question of law. The intention of legislature as expressed in section 196 is clear in that this Court has been given a limited advisory jurisdiction to the extent indicated above and is neither empowered nor required to determine propriety, legality or merit of each and every decision rendered by Appellate Tribunal. It has been noticed that the parties aggrieved of orders of Appellate Tribunal invariably approached this Court as if it was an appellate or revisional court and was required to reexamine and decide all cases decided by the Tribunal. This tendency is required to be discouraged because it tends to defeat the intent of legislature.
8. Applying the above criteria to present case, neither any legal question was raised nor has been decided by the Tribunal. The Tribunal in this case has only held that the findings of facts of two forums below that because of part of the chassis had been welded and refitted the vehicle in question was proved to be non-duty paid was not maintainable for the reasons that as per report of FSL chassis number of vehicles in question before and after chemical treatment was found to be the same and also because before such welding re-fitting respondent had obtained permission of MRA concerned. What possible question of law arises out of the above order is beyond our comprehension. The frivolity of the claim of appellant in this regard is evident from the so-called questions of law proposed in the present application which are reproduced below:--
(1) Whether a vehicle having tampered chassis number can be released under the law.
(2) Whether the Appellate Tribunal has not exceeded from its vested jurisdiction while releasing a vehicle with a tampered chassis plate.
(3) Whether changing of the first digits which show the type of body of vehicle, does not convert non-duly paid vehicle into duty paid one.
(4) Whether owner of the vehicle has proved any relevancy of the bill of entry with the tampered chassis number vehicle at the time of adjudication.
(5) Whether the owner of the vehicle is liable for any favour/ leniency who repaired the said vehicle from an unauthorized person having no adequate equipment for the said purpose.
9. Whether repairing of vehicle through unauthorized person does not show mala fide intention of the respondent. The above are pure questions of facts which could only be raised before an appellate/revisional forum provided by law and not before this Court exercising advisory jurisdiction under section 196 of the Customs Act, 1969. Besides, in a number of cases including SAO No,4 of 2005 decided on 22-11-2005 this Court had held that mere fact that chassis number was refitted and in absence of any evidence that with such chassis number some other vehicle is plying, this seizure, forfeiture/ confiscation of the vehicle would thus be beyond the jurisdiction of the Customs authorities while in C.P.L.A. No,117 of 2006 leave was refused against such judgment by apex Court.
10. This brings us to the second objection raised by learned counsel for the respondent who while drawing our attention to the application in present case has asserted that under section 196 of the Customs Act, 1969 only Collector can prefer an application, to the High Court stating any question of law arising out of such order and such application has to be signed and verified by Collector but in the instant case neither application in hand was signed by Collector nor was verified by him, therefore, the application was not maintainable and was liable to be dismissed on this score alone.
Reliance in this behalf is placed on 2006 SCM R 129 and 2006 PTD 985. Objection of learned counsel seems to be correct as although application is showing Collector of Customs as the appellant but the same is signed only by Advocates and not the Collector while the accompanying affidavit has been furnished by the Law Officer of Customs Department. In the case reported as 200'6 SCMR 129, it was held that an appeal filed by any authority/officer of the Customs Department other than Collector of Customs OR if filed by Collector but not signed and verified by him would not be maintainable while in 2006 PTD 985 it was observed that Memo. Of appeal even if subsequently signed by Collector will not cure the illegality if by then the appeal had become barred by time. The apex Court in the above referred judgment even expressed its displeasure over the manner in which the officer of customs department conducted themselves while filing such petition. Relevant portion of the judgment is reproduced below:- Before concluding this judgment we would like to express our extreme dissatisfaction, discontentment and displeasure on the manner in which the Officer of the Customs Department, Law Officer/Standing Counsel engaged by the Customs Department and the Advocates-on- Record involved in the filing/institution of these petitions had conducted themselves. From the facts it is abundantly clear that neither the officers of the Customs Department as well as the Central Board of Revenue had bothered to find out the correct provision of law relating to the filing of appeals in the High Court and to obey and comply with the legal requirements. The Customs Department as well as C.B.R. Had at their disposal the Law Officers of the Federal Government to advise them on the question of law besides the Standing Counsel engaged by them but it appears that either such advice was not sought for or if sought for was not provided correctly. The counsel who were engaged to file the appeals had also acted in a most negligent, careless, casual and imprudent manner and in spite of clear dictates of law filed appeals either in the name of wrong person/officer as petitioner and in appeals where nomenclature of petitioner was correctly spelt out, they did not get the memos. Of appeals signed by the authorized person.
It is pertinent to note here that although this objection was raised at the time of arguments but was not controverted by representative of customs department or counsel for the appellant.
11. The upshot of the above discussion is that decision of Tribunal neither suffers from any illegality or infirmity nor contrary to or in violation of any provision of Customs Act, therefore, no question of law is before this Court which was necessary pre-condition for C maintainability of application under section 196 of the Customs Act. This application is, therefore, not maintainable for the above grounds and also because it has not been signed and/or verified by Collector as required by law.
This reference application is dismissed.