Custom Appeal No. 2068/LB of 2001, decided on 8th March, 2002. Versus Custom Appeal No. 2068/LB of 2001, decided on 8th March, 2002.

MIAN ABDUL QAYYUM, MEMBER (JUDICIAL).‑‑‑ This appeal is directed against the Order‑in‑Original No. 187 of 2001, dated 4‑7‑2001 (dispatched on 7‑8‑2001) passed by the learned Deputy Collector (Adjudication) Faisalabad whereby a Toyota Corolla Car bearing Registration No.B‑2667 Kohat has been confiscated with the following observation contained in para 5 of the impugned order:‑‑

Judgment:------

I have examined the case record in details. Since no one appeared to attend the hearing nor any written reply to the show cause notice has been received from the respondents side. Thus the charges stated in the show‑cause notice stand established. I, therefore, order for outright confiscation of vehicle (Toyota Corolla Car) No.B‑2667 Kohat, bearing Chassis No.CE‑90‑5025983 Engine No.1264155 Model1990 in favour of Government under section 156(I)/89, of the Customs Act, 1969 read with S.R.O. 1374(I)/98, dated 17‑12‑1998,".

2. Learned counsel for the appellant submitted that notices of hearing for 25‑6-2001, 4‑7‑2001 and 4‑8‑2001 were never received by the appellant; that according to the observation contained in para 4 of the impugned order last of these notices was issued for 4‑8‑2001 but according to the face sheet of the impugned judgment; the judgment was recorded on 4‑7‑2001, that in the presence of the notice of hearing, dated 4‑8‑2001, the judgment could not possibly have been announced on 4‑7‑2001; that the vehicle was seized on 25‑6‑2000 and notice having been issued on 18‑6‑2001 was beyond the statutory period of two months entitling the appellant for return of the vehicle under section 168(2) of the Customs Act, 1969; that the seizure was by an A.S. I. who was not competent' to effect seizure in view of S.R.O. No. 913(I)/86, dated 5‑10‑1986 and that the appellant was lawful purchaser of the said vehicle according to certificate appearing at page 14 of the appeal filed which carried an entry against chassis number showing that the same was welded and rushes. Learned counsel has also referred to judgments PLD 1998 Lah. 100 and 2001 CLC 903 to contend that even an ex parte order to be legal, valid and binding has to contain reasons, in the absence of which the same is a nullity in the eye of law.

3. The learned D. R. has defended the impugned judgment.

4. He has however failed to bring on record any proof regarding service of notices of hearing fixed for 25‑6‑2001 and 4‑7‑2001 and 4‑8‑2001 and in the absence of any such proof, it could not be presumed that the appellant was duly notified about the dates of hearing having been fixed for 25‑6‑2001, 4‑7‑2001 and 4‑8‑2001.

5. The learned D.R. has not been able to explain as to how the case was concluded and judgment was announced on 4‑7‑2001 as mentioned in the opening sheet of the impugned order where, as according to the observation contained in para 4 of the said order the last of the notices was issued for 4‑8‑2001.

6. The learned counsel for the appellant is right when he says that even in the case of an ex parte order, reasons have to be given by the learned Adjudicating Officer in support of the impugned order. He is again right in saying that the mere fact that the party concerned does, not appear to contest the show‑cause notice does not prove the fact that the charges levelled in the show‑cause notice stand proved. This is the law which has been laid down in the esteemed authorities relied on by the learned counsel for the appellant.

7. Keeping in view all these facts, we set aside the impugned order and remit the case to the learned Adjudicating Officer for a fresh decision according to law after hearing the parties and after receiving the documents which they may like to produce. While deciding the case afresh the learned Adjudicating Officer will also attend to the points raised by the learned counsel for the appellant before us which final mention in the earlier part of the judgment. It is hoped that this time, the learned Adjudicating Officer records a speaking order supported with sound reasons dealing with all the pints raised by the parties.

C.M.A./714/Tax (Trib.) Case remitted.