Messrs POLY PACK LTD. vs CUSTOMS AND CENTRAL EXCISE APPELLATE

ORDER

Precisely stated facts of the case are that pursuant to receipt of show-cause notice, dated 28-1- 1997, from the respondent No.3, the appellant furnished its reply, thereby controverting the contents of the show-cause notice. Respondent No.3 passed the Order-in-Original on 28-5-1997, whereby the appellant was directed to deposit the amount of Central Excise Duty, as demanded in the impugned show-cause notice, and additional Excise Duty and penalty was also imposed to the tune of Rs.1,67,582. Appellant's appeals were dismissed by respondents Nos.1 and 2, vide order/judgment, dated 21-12-1998 and 10-9-1997, respectively, hence the present appeal.

2. Learned counsel for the appellant has contended that the search was made by the respondent department in violation of sections 162 and 163 of the Customs Act and that the impugned judgment is devoid of reasons, hence it is not sustainable under the law. Conversely, the learned counsel for the respondent has supported the impugned judgment.

3. We have examined the available record, perused the impugned judgment and find that the learned Tribunal, without adverting to the questions involved in the case, passed the judgment. No findings on any of the controversies are forthcoming from the contents of the judgment. Upon the examination of the same, we find that the same is sketchy, slipshod and devoid of reasons. The said judgment is not at all a speaking A order and cannot be called a "judicial order" within the parameters set up by law. The tenor of the impugned order amply manifest non-application of judicial mind. Even it has been enjoined upon an executive authority, as per section 24(A) of General Clauses Act, 1897 (inserted by General Clauses (Amendment Act, 1997, Act No. XI of 1997) to give reasons for making the order.

4. Hon'ble Supreme Court of Pakistan has time and again disapproved passing of such perfunctory orders. It is settled law that "judicial order" must be speaking order manifesting by itself that the Court has applied its judicial mind to the issues and points of controversy 13 involved in the causes.

In any case the impugned judgment, which is not a speaking order and devoid of reasons is not sustainable in law being in contravention of law declared by the Supreme Court of Pakistan in various cases, like Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (PLD 1959 SC

(Pak) 272), Gouranga Mohan Sikandar v. The Controller Import and Export and 2 others (PLD 1970 SC 158), Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173) and Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others (1984 SCM R 1014).

5. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment, dated 21-12-1998, passed by the C' learned Appellate Tribunal, is set aside, with no order as to costs.

Resultantly, appellant's appeal shall be deemed to be pending before the learned Appellate Tribunal, who shall decide the same, afresh, after hearing the parties and of course in accordance with law.

Before parting with the judgment, we have noticed that the appellant has deposited a sum of Rs.1,75,582 with the Additional Registrar (Jud1.) of this Court. As the impugned judgment has been set aside, therefore, we feel that the appellant is entitled to refund of the said amount, which was sine qua non for the stay of recovery proceedings. Additional Registrar (Jud1.) is directed to return the said amount to the appellant after proper identification and of course in accordance with law/rule. .