Abid Aziz Sheikh, J.--This judgment will disposed of Custom Reference Applications Nos. 85, 86, 87 and 88 of 2011 as common questions of law are involved in these applications and further these are also arising out of the same consolidated impugned judgment dated 28.7.2011 passed by learned Customs Appellate Tribunal, Lahore ("Tribunal") in Custom Appeals Nos. 41, 42, 43 and 45/LB of 2011 whereof said appeals of the applicant were dismissed.
2. Learned counsel for the applicant, at the very outset, submits other than questions of law raised; the following jurisdictional question of law pertaining to the constitution of Bench of learned Tribunal is common in all these applications which may be decided at the first instance:-- "Whether the judgment passed by the Division Bench of the Appellate Tribunal Customs, which was constituted in violation of the provision of Section 194-C of the Customs Act, 1969 is sustainable in the eye of law?"
3.Learned counsel for the applicant argued that the impugned judgment dated 28.07.2011 is not sustainable as the same was passed by the learned Bench of the Appellate Tribunal which consisted of only two Judicial Members in violation of Section 194-C of the Customs Act, 1969 ("ACT"). Learned counsel referred to Section 194-C(3) of the Act to state that a Special Bench should consist of not less than two Members with at least one judicial and one technical member.
Adds that even otherwise no reasoning in writing was given for the constitution of the Special Bench consisting of two Judicial Members therefore, the impugned judgment is without jurisdiction.
4. Conversely learned counsel for the respondent department supported the impugned judgment and argued that once the applicant acquiesced and participated in proceedings before the learned Tribunal, it cannot subsequently challenged the order to be without jurisdiction, because it went against the applicant. Reliance is placed on Feroz Shah and 02 other (petitioners) vs. Manzoor Hussain Shah and 84 others (respondents) (1969 SCMR 96).
5. We have given our anxious consideration to the contentions of learned counsel for the parties on the question of jurisdiction and perused the record.
6. In order to answer the question raised above, it is expedient to reproduce sub-section (2), (3) and proviso to Section 194-C:-- "(2) Subject to the provisions contained in sub-sections (3) and (4) a Bench shall consist of one judicial member and one technical member.
(3) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessm ent, shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member: Provided that Chairman may, for reasons to be, recorded in writing, constitute Benches including Special Benches consisting of:--
(a) Two or more technical members; or
(b) Two or more judicial members; ' Provided further any Bench referred to in clause (a) shall not hear the matters involving questions of law.
7. Bare reading of the above provision shows that under Section 194-C the powers and functions of the Appellate Tribunal are to be exercised by a Bench constituted by a Chairman from amongst the Members. Sub-section (2) clearly provides that Bench shall consist of one judicial and one technical member whereas in a case of a Special Bench under sub-section (3), the Bench shall not consist of less than two members, which will include one judicial member and one technical member. However, the proviso to sub-section (3) of Section 194-C postulates that Chairman may for the reasons to be recorded in writing constitute Benches including Special Benches consisting of two or more Judicial Members.
8. Though Office Order No. CHN/LB/P.S/11/305 dated 14.05.2011 placed on record by the applicant referred to Office Order No. CHN/LB/P.S/11/304 dated 14.05.2011 under which Special Division Bench was constituted, however despite direction of this Court dated 23:10.2012 neither said Office Order has been produced by the respondents to prove that it was a reasoned and not a routine and ministerial letter nor is shown to us that Bench of two Judicial Members ,was constituted by the Chairman after application of mind and giving reasons in writing and therefore, it is covered under proviso to sub-section (3) of Section 194-C. The plain reading of Section 194-C shows that the concept, of Bench under the Act is founded on the principle of having a broad based adjudication panel covering both - Judicial and Technical expertise, however, in order to meet certain exigencies, the Chairman may Under proviso to sub-section (3) of Section 194-C after giving reasons to be recorded in writing constitute a special Bench consists' of two or more judicial Members. In our view the authority of a Chairman under aforesaid proviso to constitute a Bench is not routine, incidental and ministerial in nature rather it require application of mind and reasons in writing for constitution of a Bench of two Judicial Members on account of nature and question involved in the matter. No material placed on record to show that reasoning, in writing after application of mind was given by. The Chairman in the present case and therefore, in our opinion, the constitution of Bench consisting of two Judicial Members was not in accordance with Section 194-C. The case law relied upon by the respondent is not relevant to the facts and circumstances of the present case.
9. A similar question of law was earlier raised before this Court in Customs Reference' No. 79/2012 titled Additional Director Intelligence & Investigation vs. Pak Star Automobiles (Pvt.) Ltd., etc. Wherein the learned Division Bench of this Court held as under:- "The, concept of a Bench under the Act is founded on the principle of having a broad based adjudicating panel covering both judicial and technical expertise. Reference is also made to Office Order dated 13.12.2012 issued by the Chairman of the Customs Appellate Tribunal, Islamabad wherein a Special Larger Bench, has been constituted including two judicial Members and one Technical Member. Even as a matter of policy it is in the interest of both the taxpayer and the revenue to have a broad based bench, that has both judicial and technical background; ' For the above reasons, we are of the view that the constitution of the Bench in the present case is in violation of Section 194-C as a result, the impugned judgment cannot stand and is, therefore, set aside. The appeal of the petitioner shall be deemed to be pending before the Chairman, Customs Appellate Tribunal to be marked to an appropriate Bench, strictly in terms of Section 194-C of the Customs Act, 1969."
10. In view of above discussion, the question of law raised in Para 2 above is answered in negative.
Accordingly all reference; applications are decided against the respondent-department.
11. As a result, the impugned consolidated judgment cannot stand and is therefore set aside. The appeals of the applicant shall be deemed to be pending before the Chairman Customs Appellate Tribunal to be entrusted to an appropriate Bench under Section 194-C of the Customs Act, 1969.
12. Office shall send a copy of this judgment under the seal of the Court to the learned Customs Appellate Tribunal Bench-I, Lahore as per Section 196(5) of the Customs Act, 1969.