COLLECTOR OF CUSTOMS, LAHORE vs UMAR KHAN
This civil appeal arose from a judgment of the High Court dismissing a Customs Reference filed under Section 196 of the Customs Act 1969 as incompetent, on the ground that the Collector of Customs had not signed the written authorization for the Additional Collector to file the reference. The Supreme Court of Pakistan examined the original office note sheets and found that the Collector had indeed signed and stamped the document in approval of the authorization, power of attorney, and letter of authority. The Court held that the High Court had misread the record. Furthermore, the Court highlighted that Section 196(10) of the Customs Act 1969, introduced in 2005, cures any such technical defect by creating a statutory presumption that any reference or appeal preferred with the approval of the Collector by an officer below the rank of Collector shall be deemed to have been validly preferred by the Collector. The appeal was allowed, the impugned judgment was set aside, and the reference was remanded to the High Court for decision on the merits.
- Whether a Customs Reference is incompetent if the Collector's written authorization is recorded on an office note sheet rather than a separate prescribed form?
- What is the legal effect of Section 196(10) of the Customs Act 1969 on references filed by subordinate officers with the approval of the Collector?
- Can a technical objection regarding the authorization of an officer to file a Customs Reference defeat the reference if the record shows the Collector's approval was obtained?
- Section 196, Customs Act 1969
- Section 196(1), Customs Act 1969
- Section 196(10), Customs Act 1969
ORDER
UMAR ATA BANDIAL, J.---The respondent has been served but he neither appeared before the office nor arranged his representation, consequently he was proceeded ex parte on 15.5.2018 by the of fice.
2. The only question in issue is as to whether the Reference filed under section 196 of the Customs Act ("the Act" ) by the appellant bore authorization of the Collector of Customs in the terms required by subsection (1) of the said provision. The material condition laid down in section 196(1) is that a "Reference filed by the Custom-department may be signed by an officer of Custom but not below the rank of Additional Collector or Additional Director authorized by the Collector or Director in writing in the prescribed form along with the statement of the case to the High Court". In the present case the learned High Court by the impugned judgment came to the conclusion that although the note sheet for the case contained a request for authorization of the Additional Collector for filing a Custom Reference before the High Court, the Collector did not as such sign the document in order to comply the statutory requirement that such authorization must be in writing.
3. Accordingly for the said omission the Reference was dismissed as having been filed incompetently by its signatory , the Additional Collector . Learned counsel for the appellant has submitted that the learned High Court has omitted and misread the record. He showed us para 51 of the office note sheet of the case containing the signature of the Collector of Customs and the stamp of his office on 11.05.2010 approving paras 48-50 ante. Thereafter , again while approving authorization of the Additional Collector of Customs (HQ) for filing the Custom Reference, signing the power of attorney and letter of authority to the counsel, the Collector signed in approval of para 54 on 14.05.2010 under his office stamp. He submits that the judgment of the learned High Court overlooked these contents of the note sheet and is passed in error .
4. We have perused the note sheet carefully and agree with what the learned counsel has pointed out.
Consequently we are inclined to set aside the impugned judgment. The Custom Reference shall be deemed to be pending before the learned High Court and be heard and decided on merits.
5. Having said so we notice that the matter in issue came before the High Court in the year 2010, the impugned decision involving a minor technical issue was taken in 2013 and now the matter is being decided by this Court.
The statutory law has in fact taken care of such an objection by an amendment made in subsection (10) of section
196. This provision was added in the year 2005 and provides as follows: "Notwithstanding anything contained in this Act where any reference or appeal was preferred with the approval of Collector by the officer below the rank of Collector , and the reference or appeal is pending before appellate forum or the Court, such reference or appeal shall be deemed to have been preferred and shall be deemed always to have been so preferred by the Collector".
6. The clear purpose and the effect of the said provision is that such technical and superfluous objections are put to rest at the outset so that the matter may be decided on merits. The appeal is allowed with no order as to costs.