SYED ARSHAD ALI, J.- This Custom Reference has been filed under section 196 of the Customs Act, 1969 ("Act") to call in question the judgment of the worthy Customs Appellate Tribunal Peshawar Bench dated 18.12.2018 ("Tribunal").
2. Briefly stated facts of-the case are that it was reported by the Superintendent, Customs (Audit), MCC, Peshawar that an audit of the record pertaining to DTRE Approval No.PESH/4252/02032011 of M/S RG Match Industries (Pvt) Ltd. was conducted by an audit team. The contents of audit were discussed with the Management of the unit. The Management provided revised summaries and requested reconsideration of the documents provided at later stage. The audit team considered the said documents and accordingly revised audit report vide C.No. Audit/DTRE/66/2010/10863 dated 01.01.2014, the relevant portion of which is reproduced as under: i. Scope of DTRE. Under Rule 297(b), the DTRE user has to make value addition not less than 15%. This is the basic requirement (scope) of the DTRE rules, which the DTRE user undoubtedly violated as no value addition was made by the DTRE user, rather value of imported/local raw-materials procured duty free under this DTRE Approval was in excess of the value of exported finished goods, Status of the value of imported raw material, locally procured raw-material and value of the exported goods is tabulated below:- Table-A Value ofValue ofTotal Value ofValue ofTotal Diff:(3-6)%age imported raw material (Rs)locally purchased raw material (Rs)value of input raw material (Rs)exported goods via Karachi (Rs)exported goods via Torkham / Chamman (Rs)Value of exported goods (Rs)
1 2 3 4 5 6 7 8 56,699,79511,817,091 68,516,88637,772,518 27,970,89865,743,416(-)
2,773,4700% ii. Import DATA of the DTRE user was retrieved from PRAL, Customs House, Peshawar, in which it was observed that the following import GDs were neither available in the Sales Tax Returns of the unit nor in the import statement provided by the unit, meaning thereby that the DTRE user had imported that consignments under DTRE approval No.KCUS/4252/030211 which were misused / illegally disposed off. Duty/Taxes calculated thereon were recoverable from the unit as per table-B, below:- Table-B S.#GD No & DateDescriptionQTY (Kg)Value C.Duty S. Tax AIT Total KCSI- 25889 dated 20.02.2012Coated duplex Board47,6774,245,1601,061,290902,097310,4272,273,814 KCSI- 67610 dated 22.05.2012Potassium Chlorate27,0003,027,996151,400 540,497185,995877,892 86006, dated 18.04.2012Safely Matches 4700 Cartons33,8402,690,280672,570571,685196,7271,440,982 Total9,963,4361,885,2602,014,279693,1494,592,688 iii. The DTRE user stated vide letter dated 20.12.2013, that the quantity of duplex board imported vide GD No.KCSI-25889 dated 20.02.2012 was illegally taken by Mr. Zahid Maker (still Director of M/s RG Match) of Royal Group, and sold in open market. This was an internal matter between the Directors, but the Government duty/taxes are to be paid by the DTRE user, M/s RG Match Industries, Industrial Estate Hayatabad, and Peshawar. iv. The DTRE user admitted import of the above said raw material, but on query, the management failed to arrange stock taking of the imported raw material i.e. Potassium Chlorate at S.No 2 of the Table-B above, which affirmed that the raw material was disposed of illegally.
V. Regarding GD No.86006 dated 18.04.2011 the unit, vide letter dated 20.12.2013, stated that "those were 2 container of Marina Brand safety match boxes which were returned by our importer for some modification after required changes, the same had been exported (3 container because customer demanded further another) in the month of May, 2012 under GD No.E-DTRE 1858820- 17062011". Reply of the DTRE User was not tenable, because they could not prove that the import took place under section 22 of the Custom Act, 1969, and the subsequent re-export thereof.
3. It is alleged in the reference that an import G.D No.1738671 dated 02.03.2011 was found available as zero rated in the Sales Tax Returns of the DTRE user but it was not accounted for in the DTRE statements provided to the audit team. The Management, later, provided a copy of the said GD showing import of coated duplex board, but failed to arrange physical stock taking of the same, meaning thereby that the imported raw material had been illegally disposed off. Recoverable duties/taxes for the said GD have been worked out as below: Table-C S.#GD No & DateDescriptionQTY (Kg)Value CD ST AIT Total 1.1738671 dated 02.03.11Coated Board47,1654,199,5981,049,415892,415307,0962,249,410 Total 47,1654,199,5981,049,900892,415307,0962,249,410
4. The DTRE user M/s RG Match (Pvt) Ltd. Industrial Estate, Hayatabad, Peshawar, failed to make value addition up to 15%, hence, all the imports/local purchases made @ of zero of duty/taxes under DTRE Approval No.PESH/4252/0203011 become null and void under the DTRE Rules, 2001. Duty/Taxes for all the imported/locally purchased raw material are tabulated below, which are recoverable from the DTRE user:- Table-D Detail of imported raw material for which duty/taxes are recoverable GD No:DATE DESCRIPTIONPCTQty (kg)VALUE CD ST AIT TOTAL DTRE 03.05.2011Potassium 2829-270002211556 1809453 Chlorate 1910 DTRE 30.05.2011Potassium 2829-270002209121 1839554 Chlorate 1910 DTRE 11.08.2011Potassium 2829-270002367789 1917320 Chlorate 1910 Total 8100067884663394231211741 4169811968146 DTRE 17.05.2011Coated Duplex4810-112,0857137668 1824796 Board 9200 DTRE 17.05.2011Coated Duplex4810-63,5285031037 1824817 Board 9200 DTRE 24.05.2011Coated Duplex4810-470975031037 1832102 Board 9200 DTRE 01.10.2011Coated Duplex4810-478953503863 1965484 Board 9200 DTRE 21.10.2011Coated Duplex4810-1112497476022 1979424 Board 9200 DTRE 30.11.2011Coated Duplex4810-471693193209 2007662 Board 9200 Sub Total 429,0232985791774644796344807218336015992646 KCSI 04.05.2011Red 2804-5000 1805781 95488 Phosphorus7000 DTRE-05.07.2011Paraffin Wax2712-205003071037 1877841 9090 KCSI- 20.02.2012Paraffin Wax2712-200003105348 23963 9090 DTRE-21.03.2011Paraffin Wax2712-205002894834 1579000 9090 Sub Total 610009071219136068317734236102663744372 G.Total92548749,652,3033,321,52722,228,705 Table-E Detail of locally purchased raw material for which Sales Tax is recoverable S. No DESCRIPTION QUANTITY VALUE SALES TAX REMARKS Cartons 160354 3,591,971610,635 Default surcharge is Recoverable under Sales Tax Act /Rules enforced. Glue (Adhesive)2840 142,000 24,140 BOPP Film 31789 8,083,1201,374,130 Total 11,817,0912,008,905 ABSTRACT S. No Particulars of observation TableAmount involved in 1.Duty/taxes un-accounted for imported materialB 4,592,688
2. Un-accounted for import GDs C 2,249,410
3. Un-authorized for exemption of Duty / Taxes on imported raw materialD 22,228,705 4.Un-authorized exemption of S.Tax on local purchasesE 2,008,905 Total 31,079,708
5. It is alleged that the DTRE user could not justify misuse / illegal disposal of the duty free imports & local purchases under DTRE approval No.PESH / 4252 / 02.03.2011 and was reluctant to pay the evaded amount of duty / taxes.
6. Accordingly, show cause notice was issued to the respondent, however, the Adjudicating Officer being not satisfied from the explanation offered by the respondent decided the case vide order dated 24.02.2015 in the following manner: "In the light of above, the charges levelled against the respondents in the show cause notice stand established. The respondents are directed to pay the outstanding amount of duty/taxes into Government Treasury, after deduction of the already paid amount as already accepted by the prosecution, alongwith default surcharge to be calculated at the time of payment. Since the respondents have failed to comply with the procedure laid down in the DTRE Rues to avail the benefit of DTRE Scheme, a penalty of Rs. 1 million is also imposed under Section 156(1) (10A) (14)
(14A) and (90) of the Customs Act, 1969 read with Section 33 and 34 of Sales Tax Act, 1990 for violation of above mentioned provisions of law."
7. Feeling aggrieved, the respondent filed appeal before the worthy Tribunal. The worthy Tribunal had allowed the said appeal vide judgment dated 18.12.2018. The operative paragraph of the judgment is reproduced as under: "9. In view of the above position, we allow this appeal and set aside the order dated 24.02.2015 of the Collector of Customs (Adjudication) to the extent of raw material worth of Rs.6,57,43,416/-, which after conversion into finished goods have already been exported as evident from audit report, while in respect of the remaining goods we remand this case to the Collector of Customs (Adjudication) who may pass an appropriate order, according to law."
8. On 15.02.2024, the learned counsel representing the respondent has raised the following objections to the maintainability of instant Reference. i. That the Reference has not been filed by the Collector of Customs as provided under section 196 of the Act and at the time of filing the Reference, even the learned counsel representing the Department had not signed the memo of Reference; therefore, the filing of Reference on the last date of filing of limitation was not competent as the order was passed by the Tribunal on 18.12.2018; its copy was received to the Collector on 06.02.2019 and the Reference was filed on 06.05.2019, however, on 21.05.2019, the same was returned to the learned counsel representing the Department on the ground that Annexure 'A', 'B' & 'C' were not certified; certain pages were not legible; the Index is complete and the signature of the learned counsel is not available on the Index & grounds of Reference; therefore, the learned counsel on the same date i.e. 21.05.2019 had requested for time which was granted to him till 06.06.2019, however, when the Reference was refilled on 27.05.2019; it was already barred by time. In support of his contention; he has placed reliance on PLD 2020 SC 736, PLD 2010 Lahore 666, KPRA vs. Legacy Pharmaceutical (Pvt) Limited, Peshawar (2023 PTD 56), CIR, Faisalabad v. Engineers Associated Precast (Pvt) Ltd (2023 PTD 393), The Director of Customs Valuation v. Hanna Dairies (2023 PTD 68), The Collector of Customs v. Dream Garments (2021 PTD 1042). ii. His second argument was that the Reference was supposed to have been signed and verified by the Collector; whereas the Collector has not signed the Reference, therefore, the said Reference is not maintainable and in support of his contention; he has placed reliance on Director, Directorate-General of Intelligence and Investigation vs. Messrs Al-Faiz Industries (Pvt)
Limited (2006 SCMR 129), Collector Customs, Peshawar vs. Iftikhar All Khan (2010 PTD 2136), Collector of Customs, Sales Tax and Central Excise, Hyderabad vs. Bawany Sugar Mills Badin (2008 PTD 356), Collector of Customs (Exports), Karachi vs. Messrs Tahir Fabrics, Lahore (2006 PTD 985), Collector of Customs, Model Customs Collectorate, Peshawar vs. Muhammad ARif (2024 PTD 316), Commissioner of income Tax vs. Caf Student Karachi (2016 PTD 1072), Travel Waljis (Pvt) Ltd vs. Commissioner Appeals, Income Tax, Islamabad (2015 PTD 550), United Bank Limited (UBL) vs. .Tamil Ahmed (2024 SCMR 164). iii. The third argument was that admittedly the matter pertains to the liability of M/s R.G. Match Industries (Pvt) Ltd ("Company") whereas Syed Aftab-ul-Hassan is only a Director of the Company; therefore, in absence of impleading the Company this Reference is not maintainable and in support of his contention; he has placed reliance on Collector Customs, Peshawar vs. Iftikhar Ali Khan (2010 PTD 2136), Additional Collector Sales Tax v. Messrs Associated Industries Ltd (2009 PTD 1799), Collector of Customs, Sales Tax and Central Excise, Hyderabad v. Messrs Bawany Sugar Mills Badin (2008 PTD 356), Director, Directorate-General of Intelligence and Investigation v. Messrs Al-Faiz Industries (Pvt.) Limited (2006 SCMR 129).
9. The learned counsel representing the petitioner/department sought time to file written synopsis to the aforesaid objections raised by the learned counsel representing the respondent, however, fifteen days time were granted to the learned counsel representing the petitioner/department to do the needful and the case was adjourned to a date in office. In compliance thereof, the learned counsel representing the petitioner/department has submitted the written synopsis in the office on 02.03.2024 and the case was re-listed for hearing on 05.06.2024.
10. The learned counsel representing the Department has argued that since the Reference was filed by the Collector through a counsel and the learned counsel at the time of filing the Reference had signed the memo of Reference except the Index; therefore, the Reference was validly filed and the absence of signature of the Collector Customs is not fatal to the proceedings. In support of his contention, he has placed on file unreported judgment of the Apex Court in Civil Appeal Nos. 1172- 1173 of 2012 decided on 05.10.2016.
11. In order to appreciate the respective contentions of the parties, let us first refer to the relevant provision of law.
196. Reference to High Court.--(1) Within ninety days of the date on which the aggrieved person or Collector or Director of Intelligence and Investigation or Director of Valuation, as the case may be, was served with order of the Appellate Tribunal under sub-section (3) of section 194B, the aggrieved person or any officer of Customs not below the rank of an Deputy Collector or Deputy Director, authorized by the Collector or Director in writing, may prefer an application, in the prescribed form alongwith a statement of the case, to the High Court, stating any question of law arising out of such order.
(2) The statement to the High Court, referred to in sub-section (1), shall set out the facts, the determination of the Appellate Tribunal and the question of law, which arises out of such order.
Ethics of Civil Practice High Court Rules & Orders (Civil) Chapter-1 Part-A Volume-V.
9. Power to return petition for amendment.-- The Deputy Registrar is authorized to return for amendment, within a time to be specified in an order to be recorded by him on the petition, any petition not drawn up is conformity with the foregoing directions.
12. In the present case, the admitted position is that the worthy Tribunal has passed the judgment on 18.12.2018 which was received by the Collector Customs, Peshawar on 06.02.2019 and the instant Reference was filed on 06.05.2019 along with power of attorney duly signed by the Collector on 30.04.2019 within a period of 88 days as the day upon which the copy was received and the day upon which the Reference was filed are to be excluded from the period of limitation. The Deputy Registrar of this Court has raised the following objections on 21.05.2019 for returning the Reference to the petitioner. i. Copies of show cause notice (Annexure 'A), reply to the show cause notice (Annexure '13), order- in-original (Annexure V) not certified. ii. Some pages not legible; iii. Index has been filed but incomplete; iv. Signature of the counsel wanted on the index and the grounds.
13. On 21.05.2019, the learned counsel representing the Department had requested for time, which was allowed till 06.06.2019, however, the Reference was completely resubmitted on 27.05.2019.
Objection to Limitation.
14. The period of limitation provided under section 196 of the Act is ninety days and admittedly the Reference was filed within a period of time, however, in the memo of Reference, Index and grounds; both were neither signed by the Collector nor by the learned counsel representing the Collector. In the case of Mst. Sabiran Bi v. Ahmed Khan and another (2000 SCMR 847), the issue before the Apex Court was that Mst. Sabiran Bi had filed a suit before the Civil Court, Jhelum, which was allowed in her favour, however, in appeal, Additional District Judge, Jhelum had reversed the finding of the trial Court, as such, civil revision was preferred by her before the worthy Lahore High Court, which was dismissed being barred by ten months. In the said case, the judgment/decree/order was passed by the Additional District Judge on 10.01.1996; its copy was provided to her on 23.01.1996 whereas the Revision was filed before the High Court on 16.04.1996 within the prescribed period of limitation. The Office, on the same day, had raised an objection and ordered for return of the petition for removing the said objection, however, the learned counsel for the petitioner had failed to even receive the said memo of petition which he though received but re-filed on 17.02.1997 after ten months when it was ordered to be returned to him. The High Court dismissed the case, however, the Apex Court while setting aside the judgment of the worthy Lahore High Court had observed that: 10, Thus, in view of above discussions we are inclined to old that once a suit, appeal or revision has been presented before the authorized officer of the Court within the prescribed period of limitation, it cannot be treated barred by time for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such like situation the Presiding Officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11 or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted It is also imported to note that parties/Advocates are also not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorized officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful.
Even if after notice the defect is not removed the case shall be listed for non-prosecution before the Presiding Officer who may in his discretion allow time to comply with objections of office.
15. The judgment in the case of Mst. Sabiran Bi ibid was passed by two Members Bench, however, when a similar issue arose before the Apex Court in the case of Asad Ali and 9 others vs. The Bank of Punjab and others (PLD 2020 Supreme Court 736), the Apex Court while thoroughly examining the series of the case-laws has distinguished the said judgment. The core issue before the Apex Court was that an appeal against the order of Labour Court was filed within time but the office returned the same by raising some objection and giving a specified time to remove such objection and re-filed the same. Whether it would become barred by time if the objections were not removed within the time specified by the office and the appeal is not re-filed within the period of limitation.
The paragraphs of the judgment of Asad Ali's case are relevant to the present controversy, which reads as under:-
15. The said principle of law has repeatedly been laid down, followed, approved, affirmed and reiterated in a large number of judgments of this Court as well as the High Courts. Starting from the judgment of the Lahore High Court Lahore reported as Ghulam Hussain v. Bahadar(PLD 1954 Lahore 361) till judgment of this Court reported as Lahore Development Authority v. Muhammad Rashid (1997 SCMR 1224), there is consistency in the principle that if objections raised by the office are not removed during the period allowed by the office and meanwhile the limitation period expires, the petition would become barred by time. There are two subsequent judgments of this Court reported as Mst. Sabiran Bi v. Ahmad Khan (2000 SCMR 847) and Farman Ali v.
Muhammad Ishaq (PLD 2013 SC 392) which are incorrectly understood to have decided that so long as the initial institution is within the limitation period, removal of objections raised by the office after expiry of the limitation period does not render the petition to be barred by time. The said judgments have been rendered in a different set of facts and circumstances, do not lay down the entire law on the subject and are distinguishable on points of law as well as facts.
16. Be that as it may, since the LDA case (ibid) was decided by three learned Judges, it has to be followed instead of the two subsequent judgments rendered by two learned Judges. In addition to the above, following judgments also hold that if objections raised by the office are not removed within the time specified by the office and in the meanwhile limitation for filing the appeal expires, the appeal would be rendered time-barred: Lahore Development Authority v. Muhammad Rashid (1997 SCMR 1224); Naheed Ahmad v. Asif Riaz (PLD 1996 Lahore 702); Ghulam Hussain v. Bahadar (PLD 1954 Lahore 361); Ellahi Bakhsh and 8 others v. Ahmad Bakhsh and 2 others (1999 YLR 777); Ghulam Dastgir Khan Lak v. Hayat (2000 CLC 781); Muhammad Idrees v. Abdul Rehman (2001 YLR 2294); Mazhar Iqbal v. Muhammad (2001 YLR 819); Protein and Fats International (Pvt.) Ltd. v. Capital Assets Leasing Corporation Limited (2005 CLD 857); and Controller Land Acquisition v. Fazal-ur-Rehman (2009 SCMR 767).
19. Amongst the objections raised in the Labour Appeal in the instant matter were the objections that signature of the Counsel was missing and no Power of Attorney had been filed. Cases reported as Sakhi Muhammad v. Taj Begum (1985 CLC 734); Ramzan v. Sohrab Khan (PLD 1990 Lahore 314) and Chhita v. Mt. Jaffo (AIR 1931 Allahabad 767) hold that appeal not signed by counsel or not accompanying a duly signed Power of Attorney cannot be considered as an appeal. Cases reported as Divisional Personal Officer, P.R. v. Chairman (1987 CLC 1397); Official Receiver, Aligarh v. Hira Lal (AIR 1935 Allahabad 727) and Sheikh Palat v. Sarwan Sahu (AIR 1920 Patna 581) hold that if the appeal when filed did not bear the signatures of the Counsel and also did not have attached to it a duly signed power of attorney, and these defects were made good after the expiry of the limitation period as a result of objections raised by the office, the appeal would be time-barred.
20. In addition, the objections raised in the instant matter, were the objections that court fee and revenue stamps were deficient. According to Shahna Khan v. Aulia Khan (PLD 1984 Supreme Court 157), if deficiency is pointed out by the office in respect of court fee and time is granted for making good the deficiency but the party fails to make good the deficiency within the time specified by the office, question of limitation might then arise and in terms of Siddique Khan v.
Abdul Shakur Khan (PLD 1984 Supreme Court 289) discretion to extend further time would be refused if the conduct of the appellant is considered to be contumacious and the appeal will be rejected.
21. In a case reported as Ghulam Hussain v. Mukarab Khan (1974 SCMR 364) the appeal to the High Court was deficiently stamped. In the meantime, the appeal was transferred to the Additional District Judge because of change in law. The appellant prayed for extension of time for making up the deficiency in court fee. Such extension in time was refused. Appeal to the High Court was also rejected. This Court held that a valuable right had accrued to the respondent of which he could not be deprived when the petitioners did not show due diligence and care in the prosecution of their appeal.
16. Regarding the ratio of Mst. Sabairan Bi's case, it was observed by the Apex Court in Asad Ali's case ibid that:
25. While going through Sabran Bi's case, we notice that distinction has been drawn between a situation where after raising of objections by the office the petitioner does not receive back the file and a situation where the petitioner receives back the file. The cases cited in which the petitioner had received back the file after raising of objections by the office and had not returned the same within the time allocated by the office and which were therefore held to be time-barred, were held to be distinguishable from cases where the file had not been received back. It was held that where the file had not been received back would not be held to be time-barred and such cases should be fixed before the Court for appropriate Orders for non-prosecution or any order in terms of Order VII, Rule 11 of the Civil Procedure Code. It is also instructive to note that the LDA judgment which as aforesaid was of three learned Judges of this Court was distinguished on the ground that it pertained to a situation where the file had been taken back by the Counsel, meaning thereby that in the instant case where the file had been taken back, even according to Sabiran Bi ibid, the matter had to be decided in terms of the LDA case ibid, which holds that failure to remove the objections within the time fixed (where the file had been received back) renders the appeal to be time-barred if in the time period between the raising of objections and removal thereof the period of limitation expires.
17. The worthy Lahore High Court in the case of Bank of Punjab vs. Punjab Labour Appellate Tribunal, Lahore and 2 others (PLD 2010 Lahore 66) has observed that:
20. After considering the above judgments, the case of Mst. Sabiran Bi (ibid) and the revised Rules of the Lahore High Court (2005 edition) the following legal position emerges: N That if objections are raised by the office of the Lahore High Court under the High Court Rules and Orders at the time of institution of the appeal, etc. the memo of appeal, etc. is returned, which means that the filing of the case has been invalid and therefore the appeal cannot be considered to have been instituted for the purposes of limitation.
(ii) The said objection is to be placed on the Notice Board by the office, the same evening along with the result of urgent cases by the office for the convenience of the parties and their counsel.
(iii) If the case is not "received back" or collected from the office by the appellant within seven days of the notice displayed on the Notice Board the case will be put up before the Court for non- prosecution of the case as held Mst. Sabiran Bi v. Ahmed Khan and another 2000 SCMR 847. As the case will not be allotted a number in such a situation only objection case will be put up for hearing and in case the said objection case is dismissed for non-prosecution, it will be consigned to record. However, if the party appears before the court and the objection is overruled, the question of condonation of delay is to be taken up by the court and appropriate orders passed.
(iv) If the case is "received back" by the appellant, etc. after the objections are raised by the office (before it is placed before the court as per Rule 9-A (ibid)) and the case is re-filed after meeting the objections, the period spent in removing the objections shall not be excluded for the purposes of Limitation Act, 1908 and in case the appeal, etc., is time-bared during this period of removing the objection the only course open to the appellant would be to apply for condonation of delay under section 5 of the Limitation Act, 1908. It is clarified that even the time specified for removing the objection by the Deputy Registrar (Judicial) does not stop the limitation.
(v) In case the appellant wishes to challenge the Objections raised, the same can be done immediately under Rule 9(ii) of the Lahore High Court Rules and Orders by requesting to place the case before the Court in terms of the aforesaid Rule.
18. As stated above in the present case though the impugned order was passed by the Tribunal on 18.12.2018 which was received by the Collector on 06.02.2019; he signed and provided vakalatnama to the learned counsel on 30.04.2019, however, for the reason best known to the department, the present Reference was filed before this Court on the last date of period of limitation i.e. 06.05.2019, however, it was incomplete in all material respect as neither the memo of reference was signed by the learned counsel nor by the Collector and when it was resubmitted on 27.05.2019 the Reference is barred by 21 days. Therefore, keeping in view the law laid down by the Apex Court in Asad Ali's case, the present Reference is barred by time.
Effect of the non-signature of the Collector on the memo/ 2round of Reference.
19. It is the requirement of section 196 of the Act that the order of the Tribunal, inter alia, is to be challenged by the Collector Customs. The vakalatnama appended with this Reference would show that the same was signed by the Collector Customs on 30.04.2019 authorizing Mr. Mukhtar Ahmad Maneri, Advocate, to present the Reference before this Court, however, the Reference has not been filed by the Collector. It has been the contention of the learned counsel for the respondent that since the Reference was not signed by the Collector Customs, therefore, the same is not maintainable. His first reliance is on the case of Director, Directorate-General of Intelligence and Investigation vs. Messrs Al-Faiz Industries (Pvt) Limited (2006 SCMR 129). In the said case, an appeal was filed by the Collector before the Sindh High Court, Karachi; an objection was raised on behalf of the respondent that in the first instance the appeal was required to be filed by the Collector of Customs (Adjudication) and not by the Collector of Customs (Appraisement) in as much as he was aggrieved by the order of Tribunal and the other objection was that even if the appeal filed by Collector (Appraisement) was deemed to have been filed by the Collector in view of the fact that section 196 of the Act did not specify as to which Collector would be competent to file the appeal. The crux of the matter was that though the name of the Collector appeared in the titled of the Appeal yet the memo of appeal was not signed and verified by him but was signed either by the Deputy Collector of Customs or Assistant Collector of Customs on his behalf. In this background, the Apex Court observed that:
18. Before concluding this judgment we would like to express our extreme dissatisfaction, discontentment and displeasure on the manner in which the Officers of the Customs Department, Law Officers/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. Such conduct of the persons involved has resulted in colossal loss to the Government as in view of the order-in-original passed by the Collector of Customs (Adjudication) the private respondents could ostensibly be held to be guilty of under invoicing, misdeclarations and misdescription of the material/goods imported by them. A copy of this judgment be sent to the learned Attorney- General for Pakistan as well as the Chairman, Central Board of Revenue so as to apprise them of the apathy, careless, casual and ignorant behaviour of the officers of the Customs and the Law Officers/counsel dealing with the Customs Department.
20. The learned counsel for the respondent has also relied upon the judgment of this Court in the case of Collector Customs Peshawar vs. Iftikhar Khan (2010 PTD 2136) wherein this Court while relying upon the judgment in the case of Director, Directorate-General of Intelligence and Investigation vs. Messrs Al-Faiz Industries (Pvt) Limited (2006 SCMR 129) has dismissed the appeal holding that it was not signed by the Collector. However, in the said case, the Reference was only signed by the learned counsel representing the Collector Customs. To the contrary, the learned counsel representing the department has produced unreported judgment of the Apex court in Civil Appeal No. 1172-1173 of 2012 decided on 05.10.2016. Para-5 of the judgment is reproduced as under: "5. We would like to mention here that it is not the case of respondents that the Reference Petitions were filed without the approval/consent of the competent authority. In the absence of any material on record to indicate that the competent authority was not intended to file the appeals/Reference Petitions, the appellants cannot be non-suited merely because memo of Reference does not bear the signatures. Order XLI Rule 1 of the CPC required that "...every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader ....".
Admittedly, the Reference Petitions were filed before the learned High Court duly signed by the learned counsel authorized in this behalf by the authorized officers to file the Reference Petitions.
Sub-section 1 of Section 196 of the Customs Act, 1969 reads as under;- "
196. Reference to High Court... (1) Within ninety days of the date on which the aggrieved person or Collector or Director of Intelligence and Investigation or Director of Valuation as the case may be, was served with order of the Appellate Tribunal under sub-section (3) of section 194B, the aggrieved person or any officer of Customs not below the rank of an Additional Collector or Additional Director authorized by the Collector or Director in writing, may prefer an application, in the prescribed form alongwith a statement of the case, to the High Court, stating any question of law arising out of such order".
21. We have perused the judgments stated above, however, the judgment passed in the case of Director, Directorate-General of Intelligence and Investigation vs. Messrs Al-Faiz Industries
(Pvt) Limited (2006 SCMR 129) is obviously distinguishable as in the said case, the Reference was though filed by the name of Collector but all the material documents were signed by the Deputy Collector/Assistant Collector whereas in the present case the Vakalatnama available on record would clearly suggests that the Reference was filed on the instruction of Collector Customs by the learned counsel representing the Department, however, was only signed by the learned counsel but at belated stage; therefore, keeping in view the latest verdict of the Apex Court in Civil Appeal Nos. 1172-1173 of 2012 decided on 05.10.2016 even if the Collector has failed to sign the memo of Reference but had consented to the filing of Reference that the same would be in accordance with law provided the learned counsel representing the Department not only sign the Reference in time but present before the Court within the time stipulated by the law.
22. Moving on to the last objection raised by the learned counsel for the respondent. It is the contention of the respondent that the liability admittedly relates to M/s RG Match Industries (Pvt)
Ltd whereas in the present Reference only Syed Aftab-ul-Hassan has been arrayed as respondent.
We have perused the judgment of the worthy Tribunal, which shows that the appeal was filed by Syed Aftab-ul-Hassan and not by the Company. Therefore, in the present Reference, the company was not a necessary party as the matter at hand only relates to adjudication of certain questions of law which are arising out of the judgment of the worthy Tribunal and the jurisdiction of the Tribunal was invoked by Syed Aftab-ul-Hassan and not by the Company, therefore, this objection is overruled.
23. In view of the above, the instant Reference being barred sent by time is decided in Negative.
Copy of this judgment be sent to the worthy Tribunal in terms of section 196 (5) of the Act.