Collector Customs vs Lucky Cement Ltd

2014 P T D 383

[Peshawar High Court]

Before Yahya Afridi and Nisar Hussain Khan, JJ

COLLECTOR OF CUSTOMS

Versus

Messrs LUCKY CEMENT LTD.

Custom Reference No.102 of 2011, decided on 4th July, 2013.

Customs Act (IV of 1969)---

----S. 196---Limitation Act (IX of 1908), S.5---Reference to High Court---Time barred--- Condonation of delay---Scope---Government on question of limitation could not be treated differently from ordinary litigant---Where, government in spite of enormous resources and facilities at its disposal, continued to delay filing of cases in time, detrimental to its own interest, opposite party could not be penalized for such negligence---Each day of limitation must satisfactorily be explained which petitioner had failed to do---Customs Reference filed by Collector of Customs /petitioner was hopelessly barred by time and reasons provided for the condonation of delay had not been accepted---Reference was not entertained by High Court.

Central Board of Revenue Islamabad through Collector of Customs, Sialkot, Dry Post, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 and Food Department, Gujranwala through Deputy Director and others v. Ghulam Farid Awan 2010 SCMR 1899 rel.

Abdul Rauf Rohaila for Appellant.

Isacc Ali Qazi for Respondent.

Date of hearing: 4th July, 2013.

JUDGMENT

YAHYA AFRIDI, J.---Collector Customs, Model Custom Collectorate, Jamrud, Peshawar has made this reference to answer as many as eight questions.

2.The brief and essential facts leading to the institution of this Reference are that Messrs Lucky Cement Company Ltd. ("Company") had submitted various repayment claims of customs duty on account of export of cement to Afghanistan; that during the course of scrutiny, it was observed that all the cases were filed after the expiry of the limitation period but they failed to produce cogent and convincing reason to justify its claim that the delay was beyond control; that accordingly a show-cause notice was issued to Company; that the date of hearing was fixed for 17-12-2008 but no one appeared on behalf of the Company for hearing and the date was adjourned for 30-12-2008; that one Muhibullah Afridi, representative of the Company submitted an application for extension of time to submit reply to the show-cause notice but the Superintendent (Rebate Cell) Model Customs Collectorate, Custom House, Peshawar/adjudicating authority vide Order-in-Original dated 30-12-2008 rejected the rebate claims without granting condonation for the delay in filing the same beyond the mandatory period of 210 days under Chapter XIII (Paragraph 47 read with Paragraph 49) of Customs General Orders No.12 of 2002 dated 15-6-2002; that being aggrieved by the said order, the respondents filed an appeal before the Collector of Customs (Appeals) Peshawar, which was dismissed vide order-in-appeal dated 27-2-2009 and maintained the said order-in-original; that the respondents still aggrieved filed appeal before the Custom Appellate Tribunal, who remanded the case back to the Collector (Appeals) vide impugned order dated 17-3-2010; that the Collector (Appeals) allowed the appeal of the respondents vide Order-in-Remand dated 3-11- 2010; that dissatisfied with the Order-in-Remand, the Collector Customs MCC Peshawar filed

appeal before the Customs Appellate Tribunal Peshawar Bench ("Tribunal"), which was rejected on 31-5-2011. Hence, this Reference.

3.Before this Court dilates upon the questions of law raised in the instant reference, the record reveals that the instant petition is barred by time. The present petition was filed beyond the prescribed period provided in section 196 of the Customs Act, 1969 ("Act"). Furthermore, no application for condonation has been filed.

4.According to section 196 of the Act, appeal shall be filed within ninety days of the date upon which an aggrieved person or the Collector or Director Intelligence and Investigation, as the case may be, was served with order of the Appellate Tribunal, under subsection (3) of section 194-B, 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 from along with a statement of the case, to the High Court stating any question of law arising out of such order.

5.In the present case, this Court has noted that the Tribunal decided the case on 31-5-2011; the impugned judgment of the Tribunal was served upon the Collector Customs on 8-6-2011; and that the appeal was filed on 7-12-2011. Thus, the appeal has been filed beyond the prescribed period of limitation, hence hopelessly barred by time.

6.The Revenue has attempted to provide this Court with the reason for the delay in filing the instant reference in para.12 of the Memo of the Petition, in terms that:-- "That the order of "The Tribunal" was conveyed to the appellant on 8-6-2011 and was referred to Superintendent Legal, However, such incumbent officer, placed the order of the tribunal in another file which has no been made available on 7-12-2011, therefore, the attached reference application is filed in this honourable Court."

7.The Hon'ble Supreme Court in the case of Central Board of Revenue Islamabad through Collector of Customs, Sialkot, Dry Post, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307), while facing with similar situation, observed that:--

"Government on question of limitation could not be treated differently from ordinary litigant---Where Government, in spite of enormous resources and facilities at its disposal, continued to delay filing of cases in time detrimental to its own interest, opposite-party could not be penalized for its negligence---Each day of limitation must satisfactorily be explained which petitioner had failed to do---Petition for leave to appeal being barred by 217 days and there being no sufficient ground for condonation of such delay, same must fail on ground of limitation.

The above quoted judgment has been followed by the Hon'ble apex Court in the case of Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan

(2010 SCMR 1899).

In view of the "ratio decedenti" of the aforementioned judgments this court would not accept the reason provided by the Revenue to be a sufficient cause for the delay in filing the instant reference.

8.Accordingly, for the reasons stated hereinabove, this court would not entertain the instant reference and answers the same in negative.

9.The office is directed to send copy of this judgment under seal of the Court to the Customs, Appellate Tribunal, Peshawar Bench, Peshawar.

JJK/583/P Reference answered in negative.