JUDGMENT JUSTICE (R) AKHTAR HASS AN, CHAIRMAN.--1.
This judgment will also simultaneously dispose of appeals Nos. 143/96 and 144/96, as in all these three appeals almost the same questions of law arise.
2. These appeals assail the Orders-in-Appeal dated 13.10.96 (despatched on 16.10.96) of the learned Collector (Appeals) Central Zone, Lahore, whereby he dismissed out of hand the appeals brought before him against the Orders-on-File, dated 5.6.96 of the Addl: Collector, Customs, Dryport Lahore purely on the technical ground that these were not 'in the form of Orders-in-Original'. He however directed the appellant to approach the authorities of the Collectorate for issuance of formal Orders-in-Original and to come up again in appeal against the same.
2-A. It appears that in compliance with the said order, the appellant moved the adjudicating officer (Deputy Collector) to draw formal Orders-in-Original and to provide him copy thereof so that he could avail his vested remedy of appeal but finding no response, he thought it appropriate to bring the instant appeals asserting that the Orders-in-Original were amenable to the appeal, that definition-wise, it was not required to be in any specific format; and that the adjudicating officer had quite arbitrarily avoided issuance of the formal Order-in-Original with view to deprive him of his legal right. He asserted that he had contravened no provision of the Customs Act, 1969, nor had he made any misdeclaration etc. So as to have been subjected to the liability in question.
3. Criticising bitterly the order of the learned Collector (Appeals), whereby his appeal was summarily dismissed out of hand as stated above, he maintained that besides the fact that it was not a speaking order, it was not judicial either in as much as it was patently slipshod, capricious and passed in total disregard of its broad-based concept visualised by section 193 of the Customs Act, 1969 which uses the open ended expression "any decision or order" in the context.
4. It would be appropriate to reproduce the order in question dated 5.6.96 of the Deputy Collector thought to be lacking in formalism. It reads:- "The subject goods are confiscated for violation of sections I6 and 32 of the Customs Act, 1969. The importer is, however, given an option to redeem the subject goods on payment of redemption fine equal to 50% (fifty per cent) of the ascertained value. As regards the violation of section 219 the whole consignment is confiscated. However, the importer is given an option to redeem the same on payment of fine equal to 2% (two per cent) of the total value of goods".
Probably due to persuations of the appellant and serious objection taken by him in the present appeal, the Deputy Collector lately issued a fromal Order-in-Original dated 2.6.97 (a year later) and the same has been annexed.
5. Since the learned Collector (Appeals) took a stance to dismiss the appeal summarily for want only of a formal Order-in- Original, it really called for comment from us at least to lay down authoritatively if such dismissal was permissible by law. Section 193 of the Customs Act, 1969 deals with such appeals. It reads:-- "Section 193...................... (1) any person aggrieved by any decision or order passed under this Act by................................................................. May appeal to the Collector (Appeals).........................
(2) An appeal under this section shall be in such form............................... As may be specified by rules made in this behalf.
It is quite discernible that such appeal lay from "any decision or order" passed under this Act. It is pertinent to note that the expression "any decision or order" has not been defined in the Act, nor even in the General Clauses Act. Commentary appearing at page 797 of the Customs Act, 1969 by Najib A. Chaudhry, Seventh Edition 1997 may be usefully reproduced for seeking guidance in this behalf. It runs- "The words 'Order' or 'decision' have not been defined in the Customs Act or in the General Clauses Act, and taking its dictionary meanings the word 'Order' connotes a mandate, a command or a direction. It is issued by a person who has real or assumed authority to give a direction. It is a command to act or to refrain................................................................................................................ ; they include decisions by an officer of Customs as to the rate of duty applicable............... Adjudication to confiscation, increased rate of duty or penalties and fines under the powers conferred by section 182 are decisions, or orders within the meaning of section 188 (now section 193) (AIR 1940 PC 105)
It will have been seen that the above excerpts amply make it clear that the. Order or decision is circumscribed by no specific form or format. All that it requires is that it should be adverse to the person concerned to the extent that he should feel "aggrieved" of it. Conversely speaking, if it does not cause grievance to him or in other words, is to his advantage, he will have no right to appeal against it of course the grievance should arise from....... .................. The rate of duty............. Determination of the particular category in the tariff classification into which the goods I fall adjudication to confiscation, increased rate of duty or penalties and fines............................. Applying this acid test to the order of the Deputy Collector dated 2.6.97 we have no doubt whatsoever that it had all the salient attributes of an 'order' or 'decision' amenable to appeal notwithstanding some omissions. Evidently those omissions could have been supplied by calling and examining the original record which of course would have helped advance justice rather than to stifle it unceremoniously.
6. We feel equally persuaded to deprecate avoidance on the part of the Deputy Collector in failure to pass a detailed order which could have given a proverbial look of being an Order-in- Original to the appellate forum. He was reminded of this duty separately but he overlooked it in a manner none too responsible. It was his neglect that put the appellant to the throes of summary dismissal of his appeal and the agony of waiting for a year to get such a formal order issued on 2.6.97.
7. Be that as it may now when the so-called Order-in- Original has been placed before us, we have two options; either to remand the case to the learned Collector (Appeals) or to scan it ourselves in the entire milieu of the case. The latter course seems more savoury as it would cut short the proceedings.
8. The appellant declared his imported consignment to contain Woven Pulp fabric (stock lot) cardroy velvateen from Japan @ US $ 795/KG. The bill of entry showed its particulars as under:- "Total value US $ 2466.09 Net weight on B/E: 3102 Kg.
" Physical examination of the goods revealed it to be Woven Pile Fabric (Cardroy Valvateen) of job lot quality of Japan origin. Since the identical goods of prime quality were being assessed @ US $ 2.50 Kg, the value of job lot quality goods after allowing 30% depreciation in terms of CGO 6/84 was held to be US $ 1.75/Kg.
9. Since job lot quality of such goods was banned under the Import Policy for the year 1995-96, the appellant was held to have contravened sections I6 and 32 of the Customs Act, 1969, section 3(1) of the Import and Export (Control) Act, 1950 and SRO 1108(l)/94. He prayed for summary adjudication as result whereof the goods were confiscated of course allowing their release on payment of redemption fine equal to 50% of the ascertained value. Like-wise their confiscation order u/s 219 of the Customs Act, 1969 was allowed to be redeemed on payment of 2% of the total value of the goods. These fines were in addition to the duties and taxes leviable on the goods.
10. Counsel for the appellant could not show us anything substantial in favour of the appeal.
Primarily a question of fact was involved. His declaration as to having imported a stock lot was found to be incorrect in that instead goods in the quality of job-lot were found in the consignment.
He offered no explanation for this misrepresentation except that the pitch of fine was harsh.
11. That being so, we uphold the confiscation but reduce the fine of 50% to 25% of the assessable value.
12. The appeal is allowed to the extent of reduction of fine indicated above which should be refunded forthwith if otherwise in order.