1. YAHYA AFRIDI, J.---Wali Shah, petitioner, has filed this Custom Reference seeking this Court's opinion on the following questions of Law:-- "(1) Whether in the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the impugned Order dated 22.5.2014, passed by the adjudicating officer was not barred by jurisdiction in terms of Section 179(1) of the Customs Act, 1969?
(2) Whether under the facts and circumstances of the case, the impugned proceedings are nullity in the eyes of law for being coram non judice as the learned Assistant Collector adjudicated the case, wherein, the amount of taxes involved was (Rs.3473623) on 22.5.2014, beyond their pecuniary limits (Rs.500,000) prescribed under section 179 of the Customs Act, 1969?
(3) Whether the Hon'ble Tribunal has failed to correctly appreciate the principle laid down by the Supreme Court of Pakistan in their judgments reported as 2003 SCM R 1505, 2006 SCM R 129, where it was held that "it is a well settled proposition of law that if a thing is required by law to be done in certain specific manner must be done in the same manner as prescribed by law"?
(4) Whether in the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the impugned show cause notice dated 12.5.2014 was not against the mandatory provisions of Section 180(c) of the Customs Act, 1969?
(5) Whether in the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the impugned show cause notice dated 12.5.2014 and subsequent proceedings were not without lawful authority?
(6) Whether in the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the impugned order dated 22.5.2014, was not against the first and golden principle of natural justice i.e. "audi alterm partem" which literally means that no man shall be condemned unheard?
2. Whether the violation of principle of natural justice cannot be equated with violation of provisions statutory instruments, as held by the Superior Courts in different cases?
(7) Whether the impugned order of the Tribunal would not create discrimination for the appellant, when the same Tribunal in case of similar/identical nature vide order dated 29.6.2012, has allowed appeal in terms of subsection (1) of Section 181 of the Customs Act, 1969?
(8) Whether in the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the order dated 22.5.2014, passed by the adjudicating officer was not discriminatory?
(9) Whether Article 25 of the Constitution of the Islamic Republic of Pakistan ordains equality of citizens before law or not? Section 24-A of the General Clauses Act, 1897 obliges the public functionaries to exercise their legal empowerment reasonably, fairly and justly or not?
(10) Whether the respondents impugned order/notice passed in violation to spirit of Section 179 of the Customs Act, 1969 cannot be treated as without lawful authority as held by the Superior Courts given in cases?
3. FACTS.
2. Brief and essential facts of the case are that the petitioner hails from North Waziristan (FATA); that while the petitioner was earning his livelihood abroad, he purchased a Nissan Skyline Car bearing Chassis No.R35-003261 ("Vehicle") and on his return to Pakistan brought the same with him and filed GD No.507 dated 21.03.2014 ("GD") at Customs Dry Port, Peshawar under Personal Baggage and T.R. Scheme ("Scheme"), as prescribed in "Appendix E" of the Import Policy Order, 2013 ("Import Policy"); that according to Import Policy, vehicles more than five years old were not allowed to be imported under the Scheme; that on physical examination of the Vehicle by the Examining Officer at Dry Port, Peshawar, the declared particulars of the Vehicle stated in GD were found correct except the model, which was found as 2008 and not 2010 model and thus violating the limit permissible under Import Policy, thereby exposing the Vehicle to confiscation; the Vehicle was seized vide Seizure Report No.2 dated 9.5.2014, wherein the duties/taxes assessed were Rs.3.474 Million; and that the Assistant Collector, Dry Port, Peshawar issued Show Cause Notice to the petitioner at his permanent residence in North Waziristan on 12.5.2014, wherein he was directed to appear before the adjudicating officer at Peshawar on 14.5.2014; and that on the first date of hearing, the adjudicating officer passed an Ex parte Order for confiscation of the Vehicle vide Order-in-Original dated 22.5.2014; that the said Order-in-Original was challenged by the petitioner before the Collector Customs (Appeals) Peshawar, who also dismissed the appeal of the petitioner vide Order-in-Appeal dated 18.8.2014; that still feeling aggrieved, this Order-in-Appeal was challenged before the Customs Appellate Tribunal, Peshawar Bench, which too was rejected .
4. Hence, the instant Customs Reference.
3. The worthy counsel for the petitioner urged the Court to first render its opinion on the question of law relating to jurisdiction, which for reference is as follows:- "(I) Whether in the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the impugned Order dated 22.5.2014, passed by the adjudicating officer was not barred by jurisdiction in terms of section 179 (1) of the Customs Act, 1969?"
5. SUBMISSIONS.
4. The contention of the worthy counsel for petitioner was that section 179 of Customs Act, 1969 ("Act") clearly stipulates the pecuniary limit of an Assistant Collector of Customs not to exceed five hundred thousand rupees, while the show cause notice dated 12.5.2014 issued to the petitioner by the Assistant Collector Dry Port, Peshawar, clearly exceeded his pecuniary limit. Hence, the entire proceedings and orders, which were passed in pursuance thereof were illegal and without lawful authority. In rebuttal, the worthy counsel for the Revenue vehemently opposed the above contentions and pleaded that SRO. 886(1)/2012 dated 18.7.2012 ("SRO 886") issued under section 3 read with section 179 of the Act, has clearly ousted the jurisdiction of the adjudicating officers of Collectorate of Customs (Adjudication); and that the Assistant Collector Customs at the Dry Port was the competent authority to issue the show cause notice to the petitioner, as the matter involved technical violation of import, without the involvement of any evasion of duty or taxes, for violating the stipulation provided under the Import Policy. Hence, the Show Cause Notice and the proceedings which followed were with lawful authority.
6. OPINION.
7. In essence, the general theme envisaged under the Act is for the Officers of Customs to be appointed under section 3, and then to be assigned, entrusted or delegated clear and well defined functions and duties, under sections 4,5 and 6 of the Act. Thus, the appropriate officer, as provided under subsection (b) of section 2 of the Act, is the Officer of Customs, who has been assigned, delegated or entrusted the powers and functions, as provided under sections 4,5 and 6 of the Act.
8. For reference, this Court has considered the said provisions of the Act, which read:-- "Section 2(b)
9. Appropriate Officer.---The Customs Act confers certain powers imposes various duties and provides for the performance of various functions by the different categories of officers of customs. The Central Board of Revenue however under Sections 4, 5 and 6 has certain powers.
10. Section.3. Appointment of officers of customs.- For the purposes of this Act, the Board may, by notification in the official Gazette, appoint, in relation to any area specified in the notification, any person to be-
(a) a Chief Collector of Customs;
(b) a Collector Customs;
(c) a Collector Customs (Appeals);
(d) an Additional Collector of Customs;
(e) a Deputy Collector of Customs;
(1) an Assistant Collector of Customs;
(g) an officer of Customs with any other designation.
11. Section.4. Powers and duties of officers of customs.- An officer of customs appointed under section 3 shall exercise such powers and discharge such duties as are conferred or imposed on him by or under this Act [or the rules made there under; and he shall also be competent to exercise all powers and discharge all duties conferred or imposed upon any officer subordinate to him: Provided that, notwithstanding anything contained in this Act or the rules, the Board may, by general or special' order, impose such limitations or conditions on the exercise of such powers and discharge of such duties as it thinks fit.
12. Section 5. Delegation of powers. -
(1) The Board may, by notification in the official Gazette and subject to such limitations or conditions as may be specified therein, empower by name or designation-
(a) any Additional Collector of Customs or Deputy Collector of Customs to exercise any of the powers of a Collector of Customs under this Act.
(b) Any Deputy Collector of Customs or Assistant Collector of Customs to exercise any of the powers of an Additional Collector of Customs under this Act;
(c) Any Assistant Collector of Customs to exercise any of the powers of a Deputy Collector of Customs under this Act; and
(d) Any other officer of customs with any other designation.
(2) Unless the Board in any case otherwise directs, the Directorate General, Director, and Collector may authorize any officer to exercise within any specified area any of the powers of the Director General, Director, Collector or any other officer of Customs under this Act.
13. Section.
6. Entrustment of functions of customs officers to certain other officers.-
(1) The Board may, by notification in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and Scheduled Banks: Provided that where any officer in performance of his functions under this section commits any offence under this Act, such officer shall, in addition to any other penalty which may be imposed under any other law for the time being in force, be liable to such punishment as is specified in subsection (1) of section 156 for the offence committed by him.
(2) No officer entrusted with any functions of any officer of customs under subsection (1) shall interfere in any manner in the performance or discharge of any duty by an officer of customs in places notified under section 9."
14. The jurisdictional contours of the authority of the Officers of Customs, appointed under section 3 of the Act, have been further stipulated under section 179 of the Act, which reads:- "179. Power of adjudication.
(1) Subject to subsection (2), in cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under this Act or the rules made -thereunder, the jurisdiction and powers of the Officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows namely:-
(i) Collector no limit.
(ii) Additional Collectornot exceeding three million rupees.
15. (iii)Deputy Collector not exceeding one million rupees.
(iv) Assistant Collectornot exceeding five hundred thousand rupees.
(v) Supdt: not exceeding fifty thousand rupees.
16. (vi)Principal not exceeding fifty thousand rupees. [Provided that in cases of goods to be exported, the above officers of Customs shall have their jurisdiction and powers in terms of FOB value and twice their respective monetary limit.]
2. Notwithstanding the provisions of subsection (I), the Board may, by notification in the official Gazette, fa or vary the jurisdiction and powers of any Officer of Customs or a class of officers, and may also assign or transfer [by an order] any case to any [Officer] of Customs, irrespective of the territorial jurisdiction."
17. (emphasis provided)
18. The jurisdictional attributes apparent in the aforementioned section require some elaboration and are thus discussed hereunder; SUBJECT MATTER FOR ASSUMING JURISDICTION.
19. Officers of Customs can assume jurisdiction regarding the matters, which relate to the following;
(i) Confiscation of goods to recovery of duty and other taxes not levied, shortly levied or erroneously refunded,
(ii) Imposition of penalty,
(iii) Any other contravention under the Act or Rules.
20. CRITERIA FOR DETERMINING JURISDICTION.
21. What determines the jurisdiction of the Officer of Customs is the amount of duties/taxes of the subject goods/articles under examination. It would be pertinent to note that while determining the same, the value of the conveyance carry or containing the subject articles/goods are not to be considered.
22. PECUNIARY LIMITS OF ASSUMING JURISDICTION.
23. The pecuniary expressly stipulated; (i)Collector no limit.
24. (ii)Additional Collectornot exceeding three million rupees.
25. (iii)Deputy Collector not exceeding one million rupees.
26. (iv)Assistant Collectornot exceeding five hundred thousand rupees.
(v) Supdt: not exceeding fifty thousand rupees.
27. (vi)Principal not exceeding fifty thousand rupees."
28. SUPERVISORY ROLE OF FBR IN VARYING TERMS OF JURISDICTION.
29. What is also very crucial to note is that, the provisions of subsection (1) of section 179, has been made subject to variation by FBR, under subsection (2) ibid. It was in this context that, SRO 886 of 2012, was issued by the FBR, wherein the jurisdictional aspects of Officers of Customs in the Adjudication Collectorate were stipulated. These provisions superceded, certain jurisdictional attributes provided under subsection (1) of section 179 of the Act. The relevant provisions of the SRO 886 reads as under:-- "Government of Pakistan, (Revenue Division)
30. Federal Board of Revenue.
31. Islamabad, the 18th July, 2012.
32. NOTIFICATION (CUSTOMS)
33. S.R.O. 886(1)/2012, in exercise of the powers conferred by section 3 of the Customs Act, 1969 (IV of 1969), read with section 179 thereof the Federal Board of Revenue is pleased to direct that, subject to para-graph 3, the Collector Collectorate of Customs (Adjudication), specified in column (2) of the Table below shall adjudicate the cases relating to areas falling in the jurisdiction of the Collectorates and Directorates mentioned in column (3) of that Table, namely: S.No.Collector (Adjudication)Collectorate or Directorate 5 Collector, Collectorate of Customs (Adjudication), Islamabad(i) Model Customs Collecto-rate
(ii) Model Customs Collecto rate Gilgit, Baltistan,
(iii) Model Customs Collecto rate, Peshawar, and
(iv) Directorate of Transit Trade, Peshawar.
3. The cases of following categories shall not be adjudicated by the adjudicating officers of Collectorate of Customs (Adjudication), namely:
(a) cases involving rejection of refund or rebate,
(b) cases involving technical violations of manifest clearance;
(c) cases involving violations of baggage rules;
(d) cases involving technical violations of import or export restrictions without the involvement of any evasion of duty or taxes,
(e) cases involving determination of value under section 25-A of the said Act, w cases specifically remanded by superior courts to the officers of the concerned Collectorates by name or by designation, and
(g) cases involving routine condonations or extensions of time limit or procedural omissions,
5. This notification shall take effect from the 1st August, 2012.
34. (Muhammad Irfan Wahid)
35. Secretary (Law and Procedure)"
36. (emphasis provided)
37. The bare reading of SRO 886, inter alia, would reveal that the territorial jurisdiction of the five Collectors of Customs (Adjudication) has been clearly defined. However, the jurisdiction of the said Officers of Customs has been expressly excluded to entertain certain subject matters, stipulated in para-3 thereof, which includes issues relating to technical violation of Import Policy.
38. It would be also very pertinent to note that, SRO 886 did not vary the pecuniary limits of the Collector of Customs (Adjudication) and it remained, as expressed in subsection (1) of section 179 of the Act. The Revenue was unable to provide any other order of FBR, varying the pecuniary limits expressed in subsection (1) of section 179 of the Act.
39. Thus, it would be safe to state that, SRO 886 of 2012 determined the territorial jurisdiction of Collector of Customs (Adjudication) and excluded from their jurisdiction cases, expressly mentioned therein, including cases relating to technical violation of Import Policy. The pecuniary limit, expressly provided under subsection (1) of section 179 of the Act, was not disturbed and it remained applicable to all Officers of Customs, irrespective of whether they were in the Adjudication Collectorate or other Collectorates, such as Preventive or Intelligence.
40. In view of the above, the case of the petitioner could not be adjudicated by any Officer of Customs in the Adjudication Collectorate, as there was a clear bar provided under para-3 of SRO 886 of 2012. To this extent both parties are in consonance. The matter of contention, as stated earlier, was essentially,"
41. Whether the Assistant Collector Dry Port, Peshawar, could assume jurisdiction or otherwise."
42. As the matter in issue related to violation of Import Policy, which if established, was to lead to confiscation of the Vehicle, the provisions of subsection (1) of section 179 of the Act, were surely attracted. Keeping in view the pecuniary limit prescribed in subsection (1) of section 179 of the Act, the Assistant Collector Customs Dry Port, Peshawar, was not authorized to issue the Show Cause Notice or adjudicate the case of the petitioner, which was beyond its pecuniary limit. The appropriate Officer in this regard would be the Collector Customs, Peshawar.
43. For the purpose of clarity, it may be appropriate to summarize our opinion in terms that;
(I) The Officers of Customs appointed under section 3, have been assigned, entrusted or delegated clear and well defined functions and duties, as provided under sections 4,5 and 6 of the Act.
44. Thus, the appropriate officer, as provided under subsection (b) of section 2 of the Act, is the Officer of Customs, who has been assigned, delegated or entrusted the powers and functions, as provided under sections 4,5 and 6 of the Act.
(II) Officers of Customs can assume jurisdiction regarding the matters, which relate to the following;
(i) Confiscation of goods to recovery of duty and other taxes not levied, shortly levied or erroneously refunded,
(ii) Imposition of penalty,
(iii) Any other contravention under the Act or Rules.
(III) What determines the jurisdiction of the Officer of Customs is the amount of duties/taxes of the subject goods/articles under examination.
(IV) The provisions of subsection (1) of section 179 of the Act, has been made subject to variation by FBR,
(V) S.R.O. 886 of 2012 determined the territorial jurisdiction of Collector of Customs (Adjudication) and excluded from their jurisdiction cases, expressly mentioned therein, including cases relating to technical violation of Import Policy.
(VI) The pecuniary limit, expressly provided under subsection (1) of section 179 of the Act, would remain applicable to all Officers of Customs, irrespective of whether they were in the Adjudication Collectorate or other Collectorates, such as Preventive or Intelligence, unless the same was varied by FBR under subsection (2) of section 179 of the Act.
45. CONCLUSION.
46. In view of the above legal discourse, this Court opines that the Assistant Collector Dry Port, Peshawar, who had issued the impugned Show Cause Notice lacked the pecuniary jurisdiction to issue the same. Hence, all the impugned orders based thereon were without lawful authority, as the very 'foundation' of the Revenue's case was illegal, then the entire superstructure built thereon must also fall. Accordingly, the impugned decisions are set aside, and the Collector Customs, Peshawar, may proceed in the matter in accordance with law, as discussed hereinabove.
47. The question of law relating to jurisdiction is answered in the above terms.
48. Office is directed to send a copy of this judgment under seal of the Court to the worthy Appellate Tribunal, Inland Revenue, Peshawar.