' Through this Customs Reference, the petitioner assails judgment dated 30-3-2006 served on the applicant on 17-4-2006 in terms of section 194-B(3) of the Customs Act, 1969 passed by the Customs Excise and Sales Tax Appellate Tribunal, Lahore.
2. The facts of the case have been narrated in sufficient detail in the impugned judgment. We do not feel the need to burden our order with the said facts. From the impugned judgment four questions of law have been raised by the petitioner. The first three questions of law need not be answered at this stage, if we come to the conclusion that fourth question which is reproduced below is answered in the affirmative:- "(d) Whether the learned Appellate Tribunal has fallen in error of law by dismissing the appeal vide short order dated 15-11-2005 without affording an opportunity of hearing to the counsel of 'appellant who was not present on that day in Lahore and the learned Appellate Tribunal was informed in this behalf."
2. The case of the petitioner is that the learned Tribunal erred in law in passing a short order on 15- 11-2005 in the absence of the petitioner and without hearing him. Thereafter, the detailed order which is the impugned order was purportedly passed on 30-3-2006 which was served on the petitioner on 17-4-2006. It is submitted that the learned Tribunal had no jurisdiction to pass a short order. Even otherwise, the detailed order was passed more than six months after the short order was recorded/ announced. The detailed order was also passed without hearing the petitioner as is apparent from the order sheet itself. Therefore, it is submitted that the impugned order is not sustainable in law as it suffers from a fatal legal flaw.
3. The learned counsel for the respondents on the other hand has defended the impugned order.
She submits that the reference has been tiled against the detailed judgment and not against the short order. She submits that paragraph 16 of the impugned order clearly indicates that the petitioner was heard, his arguments were reproduced in the said paragraph and were duly dealt with. Therefore, the order is legally valid and sustainable. As such no interference by this Court is warranted.
4. We heard the learned counsel for the parties and gone through the record with their assistance.
It is apparent from the short order dated 15-11-2005 that the same was passed in the absence of the learned counsel for the petitioner and without hearing him. The short order indicates that the clerk of the learned counsel for the petitioner had A appeared and apprised the learned Tribunal that the learned counsel was not available in Lahore as he had gone to Karachi. Yet, the learned Tribunal proceeded to dismiss the appeal on merits without recording any reasons for the same. It was however, stated in the short order that the judgment in detail follows.
5. The record shows that the judgment in detail, did not follow for the next six months. It was ultimately written on 13-3-2006 and was communicated to the petitioner one month's later.
Although, some arguments attributed to the learned counsel for the petitioner have-been mentioned in paragraph 16 of the judgment it is obvious that the same were not addressed by the learned counsel for the petitioner. They have obviously been picked up from the "Grounds of Appeal" filed by the Petitioner. Reproduction of certain grounds of appeal does not constitute "hearing" as required by law. The title page of the judgment clearly states that the petitioner was not represented and was obviously not heard. Therefore, argument of the learned counsel for the respondents that the arguments of the learned counsel for the petitioner were reproduced and addressed does not carry much weight and is not substantiated by the record. The question requiring determination by this Court is whether the learned Tribunal had the consideration of the arguments of the learned counsel for the parties and examination of the record as well as the case-law cited at the bar the answer of the said question has to be negative. In case title reported as Pakistan State Oil Company Limited v. Collector of Customs (2005 PTD 709), learned Division Bench of this Court has already settled, that issue by holding as follows:-- "It is pertinent to note that in the above reproduced order it was nowhere mentioned by the Tribunal that it was a short order which was to be followed by separate reasons to be recorded by the Tribunal later on. The practice followed by the Tribunal even otherwise does not seem to be warranted by law as there is no such provision available in the Customs Act/Sales Tax Act, which empowers/enables the Tribunal performing judicial work to decide the fate of an appeal by passing short order in the first instance and recording its reasons later on. In our view unless such power is expressly conferred by Statute, which seems to be lacking in the instant case, it cannot be exercised by any Tribunal or Court specially when dealing with its judicial work."
' In Writ Petition No,10767 of 2007 a learned Single Bench of this Court also came to the same conclusion by relying on the afore-noted judgment in the case of Pakistan State Oil Company Limited. In view of the foregoing, we find that the answer to question No,4 ibid has to be in the affirmative. We, therefore, hold that the learned Tribunal fell in error in dismissing the appeal of the petitioner vide short order dated 15-11-2005 without affording an opportunity of a meaningful hearing to the learned counsel for the petitioner. In view of the foregoing and on the basis of our findings regarding issue No,4, this reference is answered in the affirmative. As a result the matter is remanded to the Customs ' Appellate Tribunal, Lahore to proceed with the matter in accordance with law.