' This writ petition impugns the show-cause notice, dated 13-7-2001 issued to the petitioner by the Collector (Adjudication), Lahore. The petitioner had imported a consignment of plastic scrap in respect of which the Additional Collector (Adjudication) had issued to the petitioner a show-cause notice, dated 9-4-2001. The petitioners contested the said, show-cause notice before the Additional Collector (Adjudication) who was the competent adjudicating authority. The said adjudicating authority passed Order-in-Original, dated 2-5-2001. According to the said Order-in- Original, the contentions of the petitioner were accepted by the Additional Collector (Adjudication) in part while in respect of the remainder an adjudication was made on the basis of an admission made by the petitioner in respect of the use to which the scrap could have been put.
2. No appeal was preferred either by the petitioner or by the respondent-Department, before the Appellate Tribunal within the sixty days' period prescribed by law. I earned counsel for the petitioner, in these circumstances, has contended that the Order-in-Original, dated 2-5-2001 attained finality because of the fact that neither party had challenged the same. The impugned show-cause notice, dated 13-7-2001, which has now been issued to the petitioner on behalf of the Collector (Adjudication) purports to reopen the 'case which was decided by the competent adjudicating authority vide Order-in-Original, dated 2-5-2001. Learned counsel for the petitioner contends that the Collector (Adjudication) has no power to reopen the case and, as such, has no jurisdiction to issue the impugned show-cause notice.
4. On the other hand, learned counsel for the respondent-Department has referred to the provisions of section 195 of the Customs Act to assert that the Collector (Adjudication) has revisional powers to reopen the matter to satisfy himself as to the legality or propriety of any decision or order passed by a subordinate officer. He has also objected to the maintainability of this petition on the ground that the decision of the Collector (Adjudication) to issue the impugned show-cause notice is appealable before the Appellate Tribunal under section 194-A of the Customs Act. On this basis he has contended that an alternate remedy being available to the petitioner, this petition is liable to be dismissed.
5. In the adjudicatory scheme, which has been incorporated in the Customs Act by the Finance Ordinance of 2000, an hierarchy has been established for adjudication of disputes between the Customs Department and persons dealing with it such as importers. Such hierarchy is separate and distinct from the Collectorate of Customs exercising the function of administering the Customs Act and effecting recoveries thereunder, on the executive side. The Collectorate on the executive side, entrusted with the collection of revenue has been deliberately and consciously removed from the adjudicatory process.
6. Section 195 of the Customs Act, which has been relied upon by learned counsel for the respondents to oppose the present petition and to provide justification for the issuance of the impugned show-cause notice, has to be read in the context of the adjudicatory scheme which now forms part of the judicial process under the Customs Act. The revisional power set out in section 195 also needs to be examined and circumscribed in the light of various statutory provisions including section 179 of the Customs Act and the Notification No,S.R.O.448(I)/2000 issued thereunder by the C.B.R. It is clear from the aforesaid Notification read in the context of section 179 and section 5 of the Customs Act that Adjudication Authorities have been created to deal with matter of contention between the Customs Department and those having dealings with it such as the petitioner.
7. Learned counsel for the respondent-Department emphasized the fact that section 195 did not contain any distinction between a Collector of Customs on the executive side and a Collector of Customs working as an Adjudicating Authority. This contention, however, loses sight of the distinction between the two species of Collector which are envisaged by the various provisions of the Customs Act and in I particular section 194-A, section 179, section 5 and section 3 thereof. B The aforesaid distinction between the two is now very much an essential feature of the Customs Department.
8. In the present, case the Collectorate of Customs, which was responsible for collecting revenue, being the aggrieved party should have filed an appeal before the Appellate Tribunal to challenge the Order-in-Original, dated 2-5-2001, within the period of limitation prescribed in the Customs Act.
This, however, was not done. In the light of the segregation of functions between collection and adjudication which now forms an integral part of the Customs Act, the officers of Customs designated as Adjudicating Authorities have to remain conscious of the C fact that they are no longer collectors of revenue but are meant to be impartial adjudicators whose decisions are subject only to the appellate jurisdiction of the Appellate Tribunal and of this Court as provided for in the Customs Act.
9. The power of revision in general terms, which has been provided for in section 195 of the Customs Act, has to be read in the context of the Customs Act as amended by the Finance Ordinance, 2000.
In this respect, as noted above, the distinction between an Adjudicating Authority on the one hand and a Collector or other Customs functionaries has been well-recognized in the legal provisions referred to above and in particular, from the wording employed in section 194-A(1) of the Customs Act which provides as under:-- "Appeals to the Appellate Tribunal.--- (1) Any person [or an officer of Customs] aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders:--
(a) a decision or order passed by Ian officer of customs] : an Adjudicating Authority.
[(b} ,
(c) .
(d) an order passed by the Board or the Collector of Customs under section 195 []:"
10. In the light of the aforesaid statutory provision it needs to be seen if it is open to the petitioner (as asserted by the respondents) to challenge the issuance of the impugned show-cause notice under subsection (1)(a) of section 194-A and also as to whether the issuance of the impugned notice or any order which may be passed pursuant thereto , by the Collector (Adjudication), can be construed-as an order passed by "the Collector of Customs" under section 195 of the Customs Act so as to make it subject-matter of an appeal to the Appellate Tribunal under clause (d) of subsection (1) of section 194-A.
11. I take up the second question first. It is clear from the statutory provisions reproduced above that an officer of Customs deciding a matter as an Adjudicating Authority, has been treated as a genus distinct from other officers of the Customs Department including the Collector of Customs referred to in section 195 of the Customs Act. This would be evident from the wording expressly and consciously used by the Legislature in clauses (a) and (d) of section 194-A(1) of the Customs Act.
12. At this point I consider it necessary to note the nature of the revisional jurisdiction of statutory functionaries generally under our system of jurisprudence and specifically to the revisional power set out in section 195 of the Customs Act. Revisional jurisdiction is in essence a supervisory jurisdiction whereby a superior, forum or functionary is empowered to oversee the functioning of a subordinate forum or functionary. The revisional power is thus essentially a matter between the revising authority and the subordinate forum or authority whose action is being overseen. In this sense it is distinguishable from the power vested in an appellate forum and that which is exercised by an Adjudicating Authority of first instance.
13. The aforesaid general legal principle, in my opinion, is equally applicable to the revisional powers which have been set out in section 195 of the Customs Act. The recognition of this essential feature of revisional power is also relevant for the purpose of answering the question noted above as to whether it is open to the petitioner to challenge the issuance of the impugned show-cause notice under clause (a) of subsection (1) of section 194-A of the Customs Act.
14. It is clear from the aforesaid statutory provision that only such decision or order can be assailed in appeal under clause (a) of subsection (1) of section 194-A of the Customs Act which has been passed by an officer of Customs functioning as an Adjudicating Authority. The decision of the Collector (Adjudication) to issue the impugned notice has been made by him in purported exercise of revisional powers and not as an Adjudicating Authority. It is clear that the Additional Collector (Adjudication) while passing the Order-in-Original, dated 2-5-2001 acted as an Adjudicating.
Authority. The issuance of the impugned notice, in view of the above discussion, cannot be termed as a decision of the Collector (Adjudication) functioning as an Adjudicating Authority. It is, therefore, not a decision which can be assailed before the Appellate Tribunal under clause (a) of subsection (1) of section 194-A of the Customs Act. In the circumstances, I find that this petition is maintainable because the law does not provide an alternate remedy to the petitioner against the decision of the Collector (Adjudication) to issue the impugned show-cause notice.
15. The conclusion in the preceding paragraph also strengthens the opinion expressed earlier in this judgment that the term "Collector of Customs" used in section 195 of the Customs Act, does not include a Collector acting as an Adjudicating Authority. This is so because any construction of the law to the contrary would result in the odd situation where an aggrieved person such as the petitioner, who has obtained relief from the Additional Collector (Adjudication), would stand deprived of its remedy before the Appellate Tribunal against an adverse revisional order passed by the Collector (Adjudication) because the revisional order, not being an adjudication, would fall outside the scope of clause (a) of subsection (1) of section 194-A of the Customs Act.
16. Based on the forgoing discussion, I am of the opinion that the Collector (Adjudication) was not empowered to reopen the case of the petitioner which had attained finality and resultantly it follows that the Collector (Adjudication) had no jurisdiction to issue the impugned show- cause notice, dated 13-7-2001.