COLLECTOR OF CUSTOMS vs Messrs NATIONAL REFINERY
This matter arises from a petition impugning the order of the Sindh High Court, which dismissed the Special Customs Reference Applications filed by the petitioner. The core legal question revolves around whether the demand notice issued by the Deputy Collector Customs (Appraisement) conformed to the provisions of Section 32(3) of the Customs Act and whether the notice was issued by a competent officer. The Supreme Court held that although the demand notice was not strictly in conformity with the language of Section 32(3) of the Customs Act, it nevertheless provided an opportunity of hearing to the respondent, thereby serving the ends of substantial justice. Consequently, the Court converted the petition into an appeal, allowed it, and remanded the matter to the Tribunal to decide on merits, permitting the respondent to raise objections regarding the authority of the officer who issued the notice.
- Whether a demand notice not strictly in conformity with the language of Section 32(3) of the Customs Act is vitiated if it affords an opportunity of hearing?
- Can the authority of an officer issuing a demand notice be challenged before the Tribunal on remand?
- Whether substantial justice is done when a party has availed the opportunity to reply to a defective demand notice?
- Section 32(3), Customs Act 1969
' AMIR HANI MUSLIM, J.---Through this Petition, the petitioner has impugned the order of the Sindh High Court, Karachi which has dismissed the Special Customs Reference Applications filed by the petitioner.
2. The only point raised before this Court is that the demand notice issued by Deputy Collector Custom (Appraisement) is in conformity with the provision of section 32(3) of the Customs Act and the High Court has wrongly held otherwise.
3. He contended that the demand notice dated 20-7-2004 seeks explanation before levy of demand. According to him there was no illegality in the notice and the Tribunal as well as the learned High Court did not properly appreciate this aspect.
4. As per the counsel for the respondent, the language of the demand notice was not in accordance with the provision of the section 32(3) of the Customs Act and therefore, he submits that he supports the impugned judgment. Additionally he submits that even otherwise, the notice in question was issued by an incompetent officer and therefore, it ought to be declared as nullity.
5. We have heard the learned counsel for the petitioner and have perused the record. Admittedly the notice dated 20-7-2004 was titled as demand notice. It is also a fact that the language of the notice is not in conformity with the provisions of section 32(3) of the Customs Act. Since the reply to the notice was given by the respondent therefore, the question of determining the demand was not materialized and an opportunity was availed by the respondent.
6. We, in the given circumstances, hold that the demand notice dated 20-7-2004 though was not in conformity with the language of the aforesaid section still did provide the opportunity to the respondent and therefore substantial justice has been. Done. We therefore, remand the matter to the Tribunal to decide it on merits after providing the parties the opportunity to place on record the relevant material. It would be open to the counsel for the respondent to challenge the authority of the officer issuing the notice dated 20-7-2004 or may take such additional pleas before the Tribunal within the parameter of law.
7. With the aforesaid observations the petition is converted into appeal and is allowed in the above terms.