1. ' Through instant reference application the applicant has initially proposed two questions, which, according to the learned counsel were the questions of law arising from the impugned Order dated 31.05.2012 passed by Customs Appellate Tribunal, Bench-II, Karachi in Customs Appeal No, K- 545/2010, however, during the course of arguments, learned counsel for the applicant submits that the applicant would press only question No,2, which reads as under:-- "Whether on the facts and circumstances of the case, the learned Tribunal misinterpreted sections 80 and 193 read with section 2(bb) of the Customs Act, 1969, and erred in law by holding that the order of assessment dated 16.12.2009 was not appealable before the Collector (Appeals) under section 193." ' impugned order dated 31.05.2012, passed by the Customs Appellate Tribunal, Bench-II in Customs Appeal No,K-545/2010 as well as the orders of the two authorities below, has submitted that the Customs Appellate Tribunal has seriously erred in fact and law by holding that the applicant could not have filed an appeal in terms of section 193 of the Customs Act, 1969 before Customs Appellate Tribunal against the assessm ent order passed under section 81 of the Customs Act, 1969, whereas, according to the learned counsel, the assessment order No 117/2009 dated 3.12.2009 in the instant case is not assessm ent under section 81 of the Customs Act, 1969 on any stretch of imagination as, according to the learned counsel, it is an order under section 80 of the Customs Act, 1969 whereby the dispute relating to PCT heading has been finally decided by the Deputy Collector of Customs, MCCA-III. Learned counsel for the applicant has also drawn attention of this Court to opening para 2 of the said assessm ent order wherein it has been stated that against such assessment order an appeal would lie before the Collector of Customs (Appeals), Karachi within 30 days from the date of receipt of this order. However, per learned counsel, the Customs Appellate Tribunal has seriously erred in fact and law by holding that such assessment was an assessment under section 81, which is contrary to the facts of the case. It has been further argued that as regards merits of the case relating to limitation provided for finalizing a provisional assessment the matter has been rightly decided in favour of the applicant based on correct proposition of law as already decided by a Division Bench of this Court in the case of-Sus Motors (Pvt.) Limited, Karachi v. Federation of Pakistan and others (2011 PTD 235). However, the Customs Appellate Tribunal in spite of deciding the case in favour of the applicant on merits has allowed the appeal of the respondent department on aforesaid ground which is factually as well as legally incorrect.
2. ' It has been prayed that the question proposed by the applicant may be answered in the affirmative in favour of the applicant and against the respondent department.
3. ' Conversely, learned counsel for the respondent submits that the delay caused in finalizing the assessm ent cannot be attributed to the respondent department as, according to the learned counsel, the matter was referred to the Federal Board of Revenue at the request of the importer and as soon as the issue was decided the assessment was finalized. However, when the learned counsel for the respondent was required to assist this Court with regard to the nature of the Assessm ent Order No, 117/2009 (available at page 77 Annexure "C"), he has candidly submitted that such cannot be termed as an order passed under section 81 of the Custom's Act, 1969, however, submits that neither it is an order under section 80 of the Customs Act, 1969.
4. ' We have heard learned counsel for the parties; perused the record with their assistance and have also examined the relevant provisions of law.
5. ' From bare perusal of assessm ent order No, 117/2009 dated 3.12.2009 (available at page 77, Annexure "C"), it is clear that the same cannot be treated as an order under section 81 of the Customs Act, 1969 by any stretch of the imagination as through the assessment order the dispute regarding the correct PCT heading has been finally decided by the Deputy Collector Customs, MCCA-HI. Moreover, the said officer, while passing the order, being conscious of the legal position, himself mentioned in the opening para 2 of the assessment order that an appeal would lie against the said order before the Collector Customs (Appeals), Karachi within 30 days from the date of its receipt.
6. ' We have further observed that before the Collector (Appeals) no such ground regarding the maintainability of the appeal has been raised on behalf of the respondent department, nor even before the Customs Appellate Tribunal such ground appears to have been agitated by the respondent department as evident from the impugned order passed by the Customs Appellate Tribunal in the instant case. It appears that such finding has been recorded by the Customs Appellate Tribunal either in view of the assertion made by the department all representative during the course of arguments or on their own without confronting the applicant with such factual assertion.
7. We have not been able to understand a to how the Customs Appellate Tribunal has formed an opinion regarding the nature of the assessment order as referred to hereinabove by treating the same as order passed under section 81 of Customs Act, 1969 which, on the face of it, is a final assessm ent order whereas reference to provisional release of the subject consignment in terms of section 81 of the Customs Act, 1969 has already been made in such assessment order as observed by the concerned Deputy Collector ' In view of the hereinabove facts and circumstances of the case, we are of the opinion that the Customs Appellate Tribunal has seriously erred in fact and law by holding that the appeal before the Collector (Appeals) was not maintainable in terms of section 193 of the Customs Act, 1969 against an order presumably passed under section 81 of the Customs Act, 1969. In the instant case, which in fact for all practical purposes, is final assessment order in terms of Article 80 of the Customs Act, 1969 which position has not been disputed by the learned counsel for the respondent.
8. ' Accordingly, we allow instant reference application holding that the question proposed is a question of law arising from the impugned order which is answered in affirmative in favour of the applicant and against the respondent department. The listed application also stands disposed of.