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CHAPTER XIX
APPEALS AND REVISIONS

193 Appeals to Collector (Appeals).--(1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Collector of Customs , other than a notice of demand served under section 202, may appeal to the Collector (Appeals) within thirty days of the date of the communication to him of such decision or order:

Provided that an appeal filed after the expiry of thirty days may be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not filing the appeal within that period.

(2) An appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf.

NOTES

General.--This section corresponds to Section 188 of the Sea Customs Act. It confers a right on any person feeling himself aggrieved by any decision or order passed by an officer of Customs, to challenge that decision or order by filing an appeal before a competent authority which is either Deputy Collector of Customs or Collector of Customs or the Central Board of Revenue, as the case may be. At present Collector of Customs (Appeals) and the Appellate Tribunal are the Appellate Authorities.

Nature and scope of Appellate powers.--See Section 193-A.

Meaning of an appeal.--According to the webster's Dictionary the first meaning in law of the noun "appeal" is "the removal of a cause or a suit from an inferior to a superior judge or court for re-examination or review". The explanation of the term in Wharton's Law Lexicon, which is only different in words, is "the removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court." (1908 A.W.N. 211). In other words, under the Customs Act an appeal is an act by which a person (natural or legal) who deems himself to be aggrieved by a decision, or an order of the Customs Authorities, seeks redress before a competent authority.

Nature of the right of appeal.--A right of appeal is not a natural or birth right of a party to the proceedings. It must be expressly given by statute or by some authority equivalent, otherwise there lies no appeal (1941 I.T.R. 246). The right of appeal is, therefore, creation of statute. (PLD 1969 Lah. 636). The only remedy of the aggrieved person in regard to appeal against decision or order, is to be found within the four corners of the Act. (AIR 1948 P. C. 102).

What is, therefore, essential is that the party desirous of appealing should have the right of appeal and the court or the body to which he would prefer the appeal should have the right to entertain it. (13 I.C. 232). The parties to a proceeding cannot by mutual consent create right of appeal where none is allowed. (13 I.C. 170).

Appeal against a notice of demand served under section 202.--No appeal lie against the notice of demand served under section 202 as there is a specific bar under section 193.

Right of appeal is a substantive right.--The right of appeal is not a mere matter of procedure but is a substantive right. The right of appeal, being the creating of statute, is a substantive right and can be conferred and taken away retrospectively by express words or necessary implications. [PLD 1956 S.C. (Pak.) 256].

Appeal only a continuation of original proceedings.--The proceedings under the Act do not come to an end with the passing of order. If the party files an appeal, the proceedings are kept alive; the appeal being only a continuation of the original proceedings and any legislation passed during the pendency of the appeal would govern the proceedings (12 P.W.R. 1919). The legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceedings all connected, by an intrinsic unity are to be regarded as one legal proceeding. [PLD 1957 S.C. (lnd) 448].

Mere presentation of appeal would not suspend or interrupt original order. (PLD 1969 Kar. 546).

Matter becomes subjudice on filing of appeal.--On filing of appeal, entire matter reopens and becomes subjudice. (PLD 1969 S.C. 1).

Letter of protest not bearing any Court fee stamp cannot be treated as an appeal.--A letter of protest addressed to the Appellate Authority and not bearing any court fee stamp cannot be treated as a formal appeal.

Appeal is to be governed by the law prevailing at the time lis commences.--The right of appeal is a vested right and such a right to enter the superior court accrues and exists as on and from the date the lis commences and although it may actually be exercised when adverse judgment is pronounced. Such right is to be governed by the law prevailing at the date of institution of the proceeding and not by the law that prevails at the date of its decision or at the date of filing of an appeal. The vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. [PLD 1957 S.C. (Ind) 448].

"Any person aggrieved".--Having regard to the provisions of the section it cannot be said that the aggrieved person must of necessity have been a party to the order appealed against. The expression used is "any person aggrieved" and not "any party aggrieved" as occurs in Section 97 of the Civil Procedure Code. It is quite sufficient if the order affects the person prejudicially and he feels aggrieved by it. He is entitled to prefer an appeal if an order passed behind his back affects him adversely. (1929 All 912 + AIR 1957 Pat. 235).

An aggrieved person does not. mean only not aggrieved party, but includes any person who is really affected adversely by the order which may have been passed behind his back (1932 All 159+1931 Oudh 305 contra). A man aggrieved is a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. (AIR 1939 Nag. 9).

The detecting officer or any such agency representing the prosecution is not an "aggrieved person" (C.B.R. in an Appeal filed by F.I.A. in a case detected by that Agency).

"Order" or "decision".--An appeal under this section lies only against an "order" or "decision" passed by an officer of customs under the Customs Act.

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 do an act or to refrain from doing an act, and, in the case of a valid and effective order, it is a command which the law protects so that a penalty is attached to its disobedience.

The words "order" or "decision" in Section 188 of the Sea Customs Act (Now Section 193) are of a more general nature than the adjudications referred to in Section 182 (Now Section 179) which are also referred to in Section 186 of the said Act and not confined to the adjudication under Section 182 (Now Section 179); they include decisions by an officer of Customs as to the rate of duty applicable to particular goods, which necessarily involve the determination of the particular category in the tariff classification into which the goods fall. Adjudications to confiscation, increased rate of duty or penalties and fines made under the powers conferred by Section 182 are decisions or orders within the meaning of Section 188 (Now Section 193) (AIR 1940 P. C. 105).

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 and he has a right of appeal against it (PTCL 1997 CL. 206).

"Order of assessment" and "order of confiscation."--In principle there is no difference between an order of assessment under a taxing statute and an order of confiscation, with an alternative penalty, for both are orders of a quasi-judicial authority, under a taxing statute. (Indian contention AIR 1963 S.C. 734).

Appeal implies a right of audience.--The right of appeal given by Section 188 of the Sea Customs Act (Now Section 193) to a person aggrieved by a decision or order passed by an officer of customs, would become illusory if the appeal could be disposed of merely after perusing departmental reports. The word "appeal" in itself implies a right of audience and the Central Board of Revenue failed to discharge its statutory duty in deciding the appeal, in the manner that it did. This was quasi-judicial proceeding of which the substance of a fair hearing and opportunity for defence at the appropriate stage are essential incidents. (PLD 1959 S. C. 25).

A right of appeal under the section postulates a right of hearing with regard to the subject matter of the appeal. If the appellate authority fails to give personal hearing to the appellant, the order so passed is no order in the eye of law in as much as it was made in total disregard of the principles of natural justice, the Appellate Authority having denied the appellant an opportunity of being heard. (PLD 1962 Dacca 162 = (1962) 14 DLR 296).

From a reading of the section, it is clear that a hearing is contemplated, though not in express terms. The provisions for holding further enquiry is a point to that end. It is apparent that at the time of disposal of the appeal this function cannot be properly discharged unless the appellant is given an opportunity of hearing and also producing or rebutting any evidence in the course of the enquiry by the Appellate Authority. (1970 DLC 431 = 22 DLR 308).

Conclusion different from Court of Law not permissible.--It is against the principles of natural justice that any customs officer should come to a different conclusion on the same fact and evidence as arrived by a court of law. (PTCL 1988 CL. 172 + PTCL 1994 CL. 112).

Dismissal-of time-barred appeal without hearing the appellant.--Though the Appellate Authorities dismiss an appeal which is out of time as barred by limitation without hearing the appellant. It was held that there was no violation of the rules of natural justice. (AIR 1957 S.C. 648).

Power of remand.--The power to refer the case back to the adjudicating authority has been expressly given by section 193-A.

Effect of appellate order which annuals original order.--Jurisdiction can be revived in the original tribunal only if there are specific directions in the appellate order to that effect. If the appellate order merely annuls the original order without containing any other directions, there is no power in the original tribunal to initiate de novo proceedings and impose a fresh penalty. (AIR 1964 Mad. 111).

Date of filing the appeal.--The date of receipt by the Appellate Authority of the memorandum of appeal is the date of filing the appeal and not the date of posting the memorandum of appeal. (AIR 1957 S.C. 648).

That the delay in filing the appeal was due to the arrest of the appellant is no excuse for filing the appeal beyond limitation when the order was not mala fide and there was ample time for filing the appeal before the arrest. (AIR 1957 S.C. 648).

Limitation and computation of time.--The limitation for preferring an appeal against any order or decision of an officer of customs under the Act is 30 days from the date of receipt of such order of decision. The day on which the order passed and the period upto issue and receipt of the order is to be excluded in computing the period of limitation of 30 days. It is the practice in the Customs Department that copy of the decision or order is supplied by the Department to the person without any application. As such the period of limitation is to be computed from the date when the decision or order is received by the aggrieved person. (See Section 196-H).

Extension of limitation.--It is well established that, although the parties themselves cannot extend the time for doing an act in any court or office, yet if the delay is caused not by an act of their own, but by some act of the court or office itself, such as the fact of the court or office being close, they are entitled under Section 10 of the General Clauses Act, 1897, to do the act on the next day afterwards on which the court or office is open i.e., on the first opening day.

Condonation of delay.--The Collector (Appeals) has been empowered to condone the delay in filing the appeal if he is satisfied that the appellant had sufficient cause for not filing the appeal within time.

The expression sufficient cause ought to receive a liberal construction so as to advance substantial justice by disposing matters on merits. It must always be remembered as was pointed out by Lord Buck master in Montreal Street Railway Company vs. Normandin (1917) AC 170 (PC) that all rules of this type are nothing but provisions intended to secure proper administration of justice. It is therefore essential that they should be made to serve and be subordinate to that purpose. Substantial justice is a material consideration when construing sufficient cause, therefore, the nature of the case and consequences of refusing to condone delay necessarily have to be taken into account. Factors such as the monetary stakes involved and the importance of the issue raised would be relevant for this purpose. Postal delay of unusual type resulting in late filing of appeal will constitute sufficient cause for condoning the delay.

Powers of the Appellate Authority to extend the time limit.--See Section 224 of the Act.

Bona fide purchaser of the goods.--Auction purchaser of smuggled car could go in appeal and revision against confiscation and seizure of car. Such person being bona fide purchaser for consideration and himself not guilty of evading payment of customs duty entitled to seek remedy with concerned authorities and such authorities expected to consider the case while determining penalty. (PLD 1977 Lah. 300).

Form of appeal.--Under the Act or Rules no form of appeal is prescribed. An aggrieved person can prefer an appeal in writing after setting out grounds of appeal in any manner he likes.

Particulars to be given in the statement of appeal.--In general the appeal must provide all available information likely to assist in settling the dispute. This will usually include the following particulars--

(a) every appeal shall be accompanied by a copy of the decision or order by which the appellant is aggrieved;
(b) the grounds of appeal;
(c) prayer for requesting the amendment or action;
(d) any other evidence which the appellant considers necessary.

Similar particulars are also generally required for revision against inaction of the Customs Authorities.

Appeal shall be accompanied by a copy of the decision or order.--The Central Board of Revenue has framed rules regarding the submission of appeals and applications for revision under the Customs Act, 1969. According to these rules every appeal presented to the Board or any officer of the Customs not lower than the rank of Deputy Collector of Customs under Section 193 of the Customs Act, 1969 shall be accompanied, by a copy of the decision or order by which the appellant is aggrieved.

The Notification No. S.R.O. 131(I)/83, dated 12th February, 1983 has been reproduced under the "Notes" of Section 195-A and in Pakistan Tax .and Corporate Laws vide PTCL 1983 (St.) 361 (i).

Appeal against several decisions or orders.--One appeal does not lie against several decisions or orders.

With whom the appeal be lodged.--The appeal must be lodged with the authority competent to deal with the appeal.

Collector of Customs (Appeals).--The Federal Government has established five Collectorates of Appeals. All appeals against orders and decisions of the Deputy Collectors of Customs of the areas specified in Column 3 of the table below and the officers of Customs subordinate to them shall be heard and disposed of by the Collector of Customs (Appeals) specified against each in Column 2 of the table, namely:--

S. No.

Collector of Customs, Central Excise and Sales Tax (Appeals).

Organizations

1

2

3

1.

Collector of Customs, (Appeals) Appraisement and Exports, Karachi.

1. The Collectorate of Customs, Appraisement, Custom House, Karachi.

 

 

2. The Collectorate of Exports, Custom House, Karachi.

2.

Collector of Customs, (Appeals), Southern Zone, Karachi.

1. Collectorate of Customs Preventive, Custom House, Karachi.

 

 

2. The Pakistan Coast Guards, Karachi.

3.

Collector of Customs, (Appeals), Western Zone, Karachi.

1. The Collectorate of Customs, Central Excise and Sales Tax, Hyderabad.

 

 

2. The Collectorate of Customs, Central Excise and Sales Tax, Quetta.

 

 

3. Frontier Corps. Baluchistan.

4.

Collector of Customs, (Appeals), Central Zone, Lahore.

1. The Collectorate of Customs, Lahore.

 

 

2. The Collectorate of Customs, Central Excise and Sales Tax, Multan.

 

 

3. The Collectorate of Customs, Central Excise and Sales Tax, Faisalabad.

5.

Collector of Customs, (Appeals), Northern, Zone Islamabad.

1. The Collectorate of customs, Central Excise and Sales Tax, Gujranwala.

 

 

2. The Collectorate of Customs, Central Excise and Sales Tax, Rawalpindi.

 

 

3. The Collectorate of Customs, Central Excise and Sales Tax, Peshawar.


(See Notification No. S.R.O. 120(I)/83, dated 12th February, 1983, reproduced in PTCL 1983 St. 337 or page 273 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

Appeals under rule 22 of the Custom-House Agents (Licensing) Rules, 1971 against order passed by the Licensing Authority lie to the Collector of Customs. (For Rules see page 29 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

Appeal under rule 15 of the Customs Shipchandlers (Licensing) Rules, 1980 against any order passed under the aforesaid Rules shall lie to the Collector of Customs (Preventive) Customs House Karachi (For Rules see Notification No. S.R.O. 241(I)/80, reproduced at page 182 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

Under Rule 14 of the Rules and Fees for Licensing and Registering of cargo Boats ply at all ports, all appeals against the orders of the Deputy Collector of Customs (Preventive), Custom House, Karachi, shall be heard by the Collector of Customs (Preventive), Custom House, Karachi, with regard to ports of Karachi, Keti Bunder, Shah Bunder, Sokhi Bunder, Port Muhammad Bin Qasim, Ibrahim Hydry, Gaddani and Sonmiani and all appeals against the orders of the Assistant Collector of Customs Gwadur, shall be heard by the Collector of Customs, Quetta Collectorate, with regard to ports of Ormara, Pasni, Gwadur and Jiwani. (For Rules See Notification No. S.R.O. 122(I)/83, reproduced at page 278 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

Appeals against orders of the Valuation officers.--The appeal against the order or decision of a Deputy Controller of Customs Valuation, and Assistant Controller of Customs Valuation or any other officer of the Customs Valuation Department will lie to the Controller of Customs Valuation and shall be heard and decided by him. (See S.R.O. 760(I)/81). [30th May, 1981] and Notification No. S.R.O. 203(I)/95, reported as PTCL 1995 St. 763, or page 736 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

Merger of original tribunals order into appellate order.--Where an appeal is filed and disposed of on merits under the provisions of section 188 of the Sea Customs Act (Now Section 193) the order of the first tribunal merges in the decision of the appellate tribunal unless it can be shown that the order of the first tribunal was ab-initio void and without jurisdiction. (AIR 1959 Bom. 329). Though the original order merges in appellate order yet in case of revision, however it is not always so. (1969 SCMR 708).

Subsequent communication and events.--Officers adjudicating confiscations and penalties under Section 182 of the Sea Customs Act (Now Section 179) should not after passing orders, enter into further correspondence with persons whose goods they have confiscated or on whom they have inflicted penalties but should inform them immediately that their remedy lies under Section 188 of Sea Customs Act (Now Section 193). When appeals are made under that section, it appears that a further inquiry should be held, the adjudicating officer can direct the officer concerned to make such further enquiry. (Central Board of Revenue's C. No. 431. Cus. 11/36, dated 21st July, 1934).

In a case in which a penalty was imposed in lieu of confiscation for contravention of Import Trade Control Regulations, the importer produced a licence three months after the payment of penalty and claimed refund of penalty paid. As the claim was made after the expiry of 3 months, it was rejected by officer of customs under Section 188 of the Sea Customs Act (Now Section 193). The importer appealed to the Collector who referred the case to the Board recommending in view of the special circumstances of the case, waiver of the time limit to enable him to consider the claim on its merits. The Board ruled that it would not be a correct procedure to relax the time-limit prescribed under Section 188 of the Sea Customs Act, and that in cases of this type where it is felt that special consideration is called for on the merits of a case, the appropriate course to follow is either for the Board to review the case in exercise of its power under Section 190 (Now Section 195) (if it is a case of remitting a penalty or confiscation) or for the Government to deal with it as a revision application under Section 191 (Now Section 196) (Central Board of Revenue's No. 60 (196) Cus./47, dated 11th June, 1947).

Any subsequent communication by the Appellate or Revisional Authority intended to be a direction of an administrative nature can by no stretch of interpretation be treated as part and parcel of the order passed in appeal or revision. Such directions cannot be spelt out as order of remand.

Charges for obtaining copy of the decision or order in appeal.--One copy of decision or order is granted free of charge for the private use of the person to whom it is issued. Subsequent copies can be obtained upon payment of a fee not exceeding ten rupees under Section 204 of the Act.

Court fees for appeal and order or decision.--The Act does not provide for stamping of appeals. Court fee stamps are affixed to appeals under the provisions of the Court Fees Act, 1870. Item 11 of the Second Schedule to the Court Fees Act, 1870 prescribes the following rates of court fee stamps to be affixed to the appeals preferred or revisions made to the:--

(a)

Central Board of Revenue or Federal Government:

Rs. 25/-

(b)

Collector of Customs:

Rs. 10/-


The copy of the order which is required to be accompanied with the appeal or revision must also bear the court fee stamp of four annas (i.e. 25 paisa) when the amount or value of the subject-matter is fifty rupees or less and eight annas (i. e. 50 paisa) when the amount or value exceeds Rs. 50/- as prescribed under item 6 of the First Schedule to the Court Fees Act, 1870.

Appeals or petitions filed by Government Departments and Institutions under the Customs Act, are not exempt under the Court Fees Act, from the requirement of being stamped with the requisite court fee stamps.

Unstamped or understamped appeal.--Section 28 of the Court Fees Act gives discretion to the Appellate Authorities to admit appeals which are not properly stamped due to error or inadvertence, after the defect has been removed by proper stamping. Unstamped or understamped appeals which are otherwise received in time, may accordingly be entertained at the discretion of the Appellate Authority, after the defect of stamping is remedied.

It is the general practice with the Appellate Authority that when an unstamped or understamped appeal is received in time, it is returned immediately to the party for making up the deficiency of the court fee within a specified extended period.

Costs of appeal.--The costs are borne by the appellant whether he succeeds in appeal or not.

Place of filing appeals and revision.--The Central Board of Revenue have ruled that with a view to facilitate the filing of customs appeals and revision petitions to the Central Board of Revenue and the Federal Government of Pakistan respectively within the time allowed under the Customs Act, it has been decided by the Government to introduce the following procedure with immediate effect. The appellants and petitioners who wish to send their appeals and petitions directly to the Central Board of Revenue's office in Islamabad as hitherto done, would, however, be at liberty to do so:--

(a) Appeals addressed to the Central Board of Revenue against the orders in original passed by the Collectors of Customs and Collectors of Central Excise and Land Customs and revision petitions addressed to the Government filed against the orders in appeal passed by the Collectors of Customs and Central Excise and Land Customs and Central Board of Revenue will be received and properly registered in Custom Houses and the Collectorates in special register to be maintained for the purpose;

(b) There should be two copies of appeals and revision petitions. One copy after putting the receipt and date stamp shall be immediately forwarded to the concerned Second Secretary of Central Board of Revenue, Islamabad and on the basis of the duplicate copy, the Collectors or the Deputy Collectors will prepare their comments and send the same along with the case records to the concerned Second Secretary, Central Board of Revenue, Islamabad in continuation of appeal or revision petition. When appeals or revision petitions are so received in the Custom Houses and the Collectorates the said two offices should in no case wait for the receipt of the usual memo from Board's office calling for comments and the case records.

(c) The appellants or the petitioners, as the case may be, who present their appeals and petitions in the Custom Houses and the Collectorates should in all cases be given a receipt showing the date on which their appeals or revision petitions are received. For the purposes of counting the time limit for the receipt of appeal and revision, the date on which they are received in the Custom Houses or the Collectorates shall be taken into consideration.

Payment of penalty and duty before the appeal is heard.--Requirement of depositing duty before hearing of appeal is not rigorous as appellant has right to apply requesting its dispensation in case it causes hardship. (AIR 1965 Guj. 215). (See also Section 194).

Appeal against sentence awarded by the Special Judge.--See Section 185-F of the Customs Act.

Writ petition pending appeal.--A party who has appealed under this section cannot be allowed during the pendency of that appeal to apply for a writ petition to the High Court. (AIR 1955 Cal. 241).

Approach to other Courts.--When the statute has provided a remedy for any wrong arising thereunder that must be followed. Recourse to court is not possible since the remedy given by the statute amounts to an ouster of the jurisdiction of the Courts (AIR 1937 Mad. 536). Approach to law courts however be made in limited circumstances. (Also see Notes under Section 217 and 218 of the Act.)

193-A Procedure in appeal.--(1) The Collector (Appeals) shall give an opportunity to the appellant to be heard if he so desires.

(2) The Collector (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the Collector (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not willful or unreasonable.

(3) The Collector (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such direction as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary:

Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:

Provided further that, where the Collector (Appeals) is of the opinion that any duty has not been levied or has been short-levied or erroneously refunded, no order requiring the appellant to pay any duty not levied, short levied or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in section 32 to show cause against the proposed order.

(4) The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.

(5) On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Customs.

NOTES

Right of audience.--This section gives the right of audience if the appellant so desires.

Ground of appeal not specified in the grounds of appeals.--The Collector (Appeals) may allow the appellant to go into any ground of appeal not specified in the grounds of appeals if the Collector is satisfied that the omission of that ground was neither willful nor unreasonable.

Nature and scope of appellate powers.--The Collector may make further inquiry as may be necessary. He may confirm or annul the decision or order. He may refer the case back to the adjudicating authority with such directions as he may think fit.

The Collector may modify the decision or order appealed against provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order and an order requiring the appellant to pay any duty not levied, short levied or erroneously refunded cannot be passed unless the appellant is given notice within the limit prescribed under section 32 for the purpose.

No power to impose penalty for the first time.--The appellate authority has no power to impose penalty for the first time, because the power to "pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against" does not mean that he has also the power to impose penalty for the first time when it was not imposed by the adjudicating authority. It is a well settled principle in law that an appellant on his appeal cannot be put in a worse position than what he was in earlier. The power of enhancement of penalty under the first proviso does not and cannot include the power to impose penalty for the first time. The power of the appellate authority to modify the order does not include the power to impose penalty. Modification contemplates removal of some defect or irregularity in the order sought to be modified but not making of an altogether new order.

The appellate order should be speaking order.--The order disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.

Communication of order.--On the disposal of the appeal the Collector (Appeal) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Customs.

194 Appellate Tribunal.--(1) The Federal Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Sales Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.

(2) A judicial member shall be a person who is a Judge of a High Court or who has for a period of not less than five years exercised the powers of a District Judge and it qualified to be a Judge of a High Court or who is or has been an Advocate of a High Court and is qualified to be a Judge of High Court.

(3) A technical member shall be an officer of Customs and Excise Group equivalent in rank to that of a Member, Central Board of Revenue.

(4) The Federal Government shall appoint one of the members of the Appellate Tribunal to be the Chairman thereof.

(5) The terms and conditions of appointment of the Chairman and judicial and technical members shall be such as the Federal Government may determine:

Provided that where a Judge of High Court is appointed as the Chairman of the Appellate Tribunal his terms and conditions shall be the same as those of a Judge of the High Court.

194-A Appeals to the Appellate Tribunal.--(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders:--

(a) a decision or order passed by the Collector of Customs as an adjudicating authority;
(b) an order passed by the Collector (Appeals) under section 193;
(c) an order passed under section 193, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Collector of Customs under section 195
[***]:

Provided that no appeal shall lie to the Appellate Tribunal, and the Appellate Tribunal shall not have jurisdiction to decide any appeal, in respect of any order referred to in sub-section (1) if such order relates to--

(a) any goods imported or exported as baggage;

(b) any goods loaded in a conveyance for importation into Pakistan, but which are not unloaded at their place of destination in Pakistan; or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;

(c) repayment of customs-duty under clause (c) of section 21;

(d) payment of drawback as provided in Chapter VI, and the rules made thereunder
[;]

(e) notice served or action taken under section 202;

Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in sub-section (1) where--

(i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or

(ii) in any disputed case other than a case where the determination of any question having a relation to rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(iii) the amount of fine or penalty determined by such order;

does not exceed ten thousand rupees.

(2) The Board or the Collector of Customs may, if it or, as the case may be, he is of the opinion that an order passed by the Collector (Appeals) under section 193 is not legal or proper, direct the appropriate officer to appeal on its or, as the case may be, his behalf to the Appellate Tribunal against such order.

(3) Every appeal under this section shall be filed within sixty days from the date on which the decision or order sought to be appealed against is communicated to the Board or the Collector of Customs, or as the case may be, the other party preferring the appeal.

(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).

(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.

(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, except in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4), be accompanied by a fee of two hundred rupees.

NOTES

Benches of the Tribunal.--The Appellate Tribunal has three Benches at Lahore, Islamabad and Karachi. Headquarter of the Tribunal is at Lahore.

Jurisdiction of the Benches.--Pursuant to the constitution of the Customs, Excise and Sales Tax Appellate Tribunal, the jurisdiction of the three Benches shall be as under:--

(i) Lahore Bench.--Cases pertaining to the jurisdiction of the Collectorate of Customs, Lahore; Collectorates of Central Excise & Sales Tax, North and South Zones, Lahore; the Collectorate of Customs, Excise and sales Tax at Faisalabad and Multan; the Collectorate of Customs, Central Excise and Sales Tax (Appeals), Central Zone, Lahore, and the valuation appeal cases pertaining to the aforesaid jurisdiction decided by the Controller of Valuation, Karachi.

(ii) Islamabad Bench.--Cases pertaining to the jurisdiction of the Collectorates of Customs, Excise and Sales tax Gujranwala, Rawalpindi and Peshawar, Collectorate of Customs, Excise & Sales Tax (Appeals), North Zone, Islamabad and the valuation appeal cases pertaining to the aforesaid jurisdiction decided by the Controller of Valuation, Karachi.

(iii) Karachi Bench.--Case pertaining to the Collectorates of Customs, Excise and Sales Tax located within the jurisdiction of the Provinces of Sind and Baluchistan, Collectorate of Customs, Central Excise and sales Tax (Appeals), South Zone, Karachi, Collectorate of Appraisement (Appeals), South Zone, Karachi, Collectorate of Appraisement (Appeals), Karachi and the valuation appeal cases pertaining to the aforesaid jurisdiction decided by the Controller of Valuation, Karachi.

(iv) Appeal against the orders passed by the Central Board of revenue under section 195 of the Customs Act, 1969 before 30th March, 1969 shall be heard by the Bench in whose jurisdiction the cases were originally initiated. The same shall hold true in respect of central Excise and Sales Tax case re-opened by the CBR under the relevant provisions of law before 30th March, 1995.

The aforesaid jurisdictional distribution of work shall, however, be subject to the substantive provisions of law as contained in the Customs Act, 1969, Central Excises Act, 1944 and the Sales Tax Act, 1990. (Order of the Chairman of the Custom Excise & Sales Tax Appellate Tribunal 1995).

194-B Orders of Appellate Tribunal.--(1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.

(2) The Appellate Tribunal may, at any time within three years from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall made such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal:

Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to the party of its intention to do so and has allowed a reasonable. opportunity of being heard.

(3) The Appellate Tribunal shall send a copy of every order passed by it under this section, disposing of an appeal, to the Collector of Customs and in valuation cases also to the Controller, Valuation, and the other party to the appeal.

(4) Save as otherwise expressly provided in
section 196, an order passed by the Appellate Tribunal in appeal shall be final.

NOTES

Power restricted to subject-matter of appeal.--The Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders "thereon" as it think fit, confirming, modifying or annulling the decision or order appealed against.

The word "thereon" confines the power of the Tribunal to the subject-matter of the appeal. The Tribunal cannot travel beyond the scope of the appeal or pass an order or give a direction which would work adversely to the appellant. It is well-settled principle in law that an appellant on his appeal cannot be put in a worse position than what he was in earlier.

Power to Grant Stay.--It is firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Therefore, when the statute confers appellate jurisdiction on the Tribunal, it impliedly grants the power of doing all such acts, or employing such means as are essentially necessary to its execution and the statutory power carries with it duty in proper case to make such orders for staying proceedings as will prevent the appeal, if successful, from being rendered nugatory.

The interim directions or orders are passed so as to ensure that ultimate relief available to the party is not affected and the delay in deciding the case should not adversely affect the party.

194-C Procedure of Appellate Tribunal.--(1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the Chairman from amongst the members thereof.

(2) Subject to the provisions contained in sub-sections (3) and (4), a Bench shall consist of one judicial member and one technical member.

(3) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member.

(4) The Chairman or any other member of the Appellate Tribunal authorised, in this behalf by the Chairman may,. sitting singly, dispose of any case which has been allotted to the bench of which he is a member where--

(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or

(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(c) the amount of fine or penalty involved;

does not exceed one hundred thousand rupees.

(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the Chairman for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it:

Provided that, where the members of a Special Bench are equally divided, the points on which they differ shall be decided by the Chairman.

(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.

(7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (V of 1908), when trying a suit in respect of the following matters, namely:--

(a) discovery and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) compelling the production of books of account and other documents; and
(d) issuing commissions.

(8) Any proceeding before the Appellate Tribunal shall be deemed to be judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Pakistan Penal Code (Act XLV of 1860), and the Appellate Tribunal shall be deemed to be a Court for all the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).

195. Powers of Board or Collector of Customs to pass certain orders.--(1) The Board or the Collector of Customs may, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit:

Provided that no order confiscating goods of greater value or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorized by him.

(2) No record of any proceedings relating to any decision or order passed by an officer of customs shall be called for or examined under sub-section (1) after the expiry of two years from the date of such decision or order.

195-A Revision by the Federal Government.--(1) The Federal Government may, on the application of any person aggrieved by any order passed under section 193, where the order is of the nature referred to in the first proviso to sub-section (1) of section 194-A annul or modify such order.

(2) An application under sub-section (1) shall be made within thirty days from the date of the communication to the applicant of the order against which the application is being made:

Provided that the Federal Government may permit the filing of application after the expiry of relevant period referred to in sub-section (2) if it is satisfied that there was sufficient cause for not presenting it within that period.

(3) An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of two hundred rupees.

(4) The Federal Government may, of its own motion, annul or modify any order referred to in sub-section (1).

(5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section--

(a) in any case in which an order passed under section 193 has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and

(b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified.

(6) Where the Federal Government is of the opinion that any duty of customs has not been levied or has been short levied or has been erroneously refunded, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in section 32.

NOTES

Revision application shall be accompanied by a copy of the decision or order.--Every application made to the Federal Government under Section 196 of the Customs Act, 1969 shall be accompanied, by a copy of the decision or order by which the applicant is aggrieved. The Central Board of Revenue under Notification No. S.R.O. 131(I)/83, dated 12th February, 1983 has made the rule regarding the submission of appeal and application for revision under the Customs Act, 1969. The Notification is reproduced as under:--

RULE REGARDING THE SUBMISSION OF APPEALS AND APPLICATIONS FOR REVISION UNDER THE CUSTOMS ACT, 1969

"In exercise of the powers conferred by Section 219 of the Customs Act, 1969 (IV of 1969), read with item 23 of the said Act, and in supersession of the late Government of India, C.B.R. Notification No. 725-Cus, dated the 19th August, 1925, the Central Board of Revenue is pleased to make the following rule regarding the submission of appeals and applications for revision under the said Act, namely:--

Every appeal presented to the Board or to any officer of customs not lower in rank than a Deputy Collector of Customs under Section 193 of the Customs Act, 1969 (IV of 1969), and every application made to the Federal Government under Section 196 of the said Act, shall be accompanied, by a copy of the decision or order by which 'the appellant or the applicant, as the case may be, is aggrieved."

Revision forum.--Section 196 (Now Section 195-,4) does not provide the revision forum as of right and confers a discretion upon the Federal Government to entertain the revision. (PTCL 1996 CL. 1).

A revision which is not a matter of right cannot be equated with right of appeal therefore the failure of the petitioner to invoke the revisional jurisdiction cannot by itself disentitle it from filing the constitutional petition. (PTCL 1996 CL. 1).

Conclusion different from Court of Law not permissible.--See "Notes" under Sections 179 and 193 of the Act.

Civil suit and other legal proceedings.--See Notes under Sections 217 and 218 of the Act.

195-B Deposit, pending appeal, of duty demanded or penalty levied.-- Where, in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied:

Provided that, where, in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.

NOTE

Appropriate Officer.--The Assistant Collector has been assigned the functions of the appropriate officer for the purpose of the provisions of Section 194 (Now Section 195-B) of the Customs Act, 1969. (See Notification No. S.R.O. 56(I)/93, dated 19th January, 1993, reported as PTCL 1993 St. 461 or see page 586 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

196. Appeal to High Court.--(1) An aggrieved person or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under section 194B.

(2) The appeal under this section shall be filed within thirty days of the date upon which an aggrieved person or the Collector is served with notice of an order under section 194B.

(3) Where an appeal is filed under sub-section (1) by the aggrieved person, it shall be accompanied by a fee of two hundred rupees.

(4) An appeal under this section shall be heard by a Bench of not less than two Judges of the High Court.

(5) The High Court upon hearing the appeal under this section shall decide the question of law raised therein and deliver decision thereon containing the grounds on which such decision is based and shall send a copy of the decision under the seal of the Court to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such decision.

(6) Subject to sub-section (7), notwithstanding that an appeal has been filed under this section, sums due to the Government as the result of an order passed under section 194B shall be payable in accordance with the said order.

(7) Where recovery of any sum has been stayed by the High Court by an order, such order shall cease to have effect on the expiration of a period of six months following the day on which it is made unless the appeal is decided, or such order is withdrawn, by the High Court earlier.

(8) The cost of appeal shall be in the discretion of the High Court.

196-H Exclusion of time taken for copy.--In computing the period of limitation specified for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order, shall be excluded.

196-I Transfer of certain pending proceedings.-- (1) Every appeal which is pending before the Board under section 193 as it stood immediately before the appointed day and any matter arising out of or connected with such proceedings shall stand transferred on the appointed day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it then was or may re-hear the same, as it may deem fit.

(2) Every proceeding which is pending immediately before the appointed day before the Board or the Collector of Customs under section 195 as it stood immediately before that day, and any matter arising out of or connected with such proceedings and which is so pending shall continue to be dealt with by the Board or the Collector of Customs, as the case may be, as if the said section had not been substituted.

(3) Every proceeding pending before the Federal Government under section 196 as it stood immediately before the appointed day and any matter arising out of or connected with such proceedings which is so pending shall stand transferred to the Appellate Tribunal and that Appellate Tribunal may proceed with such proceedings or matter from the stage at which it then was or may re-hear the same, as it may deem fit, as if such proceedings or matter were an appeal filed before it:

Provided that if any such proceeding or matter relates to an order where--

(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or

(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(c) the amount of fine or penalty determined by such order:

does not exceed ten thousand rupees, such proceeding or matter shall continue to be dealt with by the Federal Government as if the said section 196 had not been substituted:

Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that, before proceeding further with that proceeding or matter, he may be re-heard.

196-J Definitions.--In this Chapter,--

(a) "appointed day" means the date of the coming into force of the Finance Act, 1989;
(b) "High Court" means in relation to any Province, the High Court for the Province;
(c) "Chairman" means the Chairman of the Appellate Tribunal.

NOTE

Appointed Day.--The Federal Government vide Notification No. S.R.O. 842(I)/95, dated 24th August, 1995 appointed the 30th March, 1995 on which provision of Chapter came into force. Notification is reproduced below:--

"In exercise of the powers conferred by sub-section (3) of section 1 of the Finance Act, 1989, the Federal Government is pleased to notify that the 30th day of March, 1995, was the date appointed by the Federal Government on which the provisions of sub-sections (4), (5), (6) and (7) of section 3 and sub-sections (1), (2), (6) and (10) of section 5 of the said Act had come into force."

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