Appeal No. 88/CU/IB of 2004, decided on 30th October, 2006. Versus Appeal No. 88/CU/IB of 2004, decided on 30th October, 2006.
SYED SULTAN AHMAD, (MEMBER (JUDICIAL).--- This appeal has been directed against the Order-in-Original No.1 of 2004 dated 10-5-2004 passed by the learned Collector of Customs, Sambrial, Sialkot, whereby the duty drawback claim of the appellants was rejected and a penalty of Rs.1,00,000 was also imposed for mis-declaration and over-invoicing.
2. Brief facts leading to this appeal are that the appellants filed duty drawback claims against their export of two consignments of footballs to Turkey. During the scrutiny of above duty drawback claims, it was observed that the value of the goods exported appeared to be on higher side, therefore, on further inquiries from the Bank and Consul
General of Pakistan (sic) Turkey, it reflected that the appellants have indulged in mis-declaration and massive over-invoicing of their exported goods. Show-cause notice dated 6-3-2004 was served upon the appellants. The Collector of Customs, Sambrial, Sialkot after completing adjudicating proceedings in due course concluded that the appellants fraudulently used two sets of invoices; one with exaggerated value submitted to Customs and other with much reduced value to Ministry of Foreign Affairs, Islamabad and Chamber of Commerce and Industry, Sialkot. He further concluded that .the appellants failed to provide documentary evidence of payment of duty/taxes at import stage of such raw materials (or any other evidence of purchase of raw material from. some local supplier from whom further investigation could have been made) which they have claimed to be used in exportation of the goods. The Collector of Customs, therefore, rejected the drawback claims of the appellants and also imposed a-penalty of Rs. 1,00,000 for indulging in mis-declaration and over-invoicing. Feeling aggrieved, the appellants filed appeal against the above mentioned order-in-original before this Tribunal.
3. We have heard the arguments of learned counsel for the parties and perused the record.
4. The learned counsel for the appellants at the very outset pressed vehemently that the Adjudicating Authority while acting as a quasi Judicial Officer assumed the role of the investigator and after issuance of the show-cause notice started, the investigation of the case through various letters to provide support to the case of the prosecution and as such the order under appeal is void being biased. He added that such an order is not sustainable at all in the eye of law. He also agitated the other grounds embodied in the grounds of appeal. Conversely, the learned Departmental Representative stated that the authority below can adopt any procedure to reach a just conclusion. He also refuted the other grounds pressed by the learned counsel for the appellants.
5. Rules of natural justice apply to all Tribunals, quasi Judicial Officers and administrative bodies. By now, this well-settled rule comes into play in all matters affecting the rights of the citizens regarding property or persons. The dictum of law laid down in PLD 1966 SC 536 and PLD (sic) Pesh. 169 fortifies this view. The rule against bias and right to be heard -two separate concepts and governed by separate considerations are the essential characteristics of what is called natural justice. They are the twin pillars supporting it. The rule against bias is .put in the maxim memo Index in causa sua and the right to be heard is "neatly and briefly stated in the recently resuscitated Latin expression" audi alteram partem. They have been recently put in the two words, impartiality and fairness. To put them in one sentence; they are, "the right to be heard by an unbiased Tribunal". It was laid down in' PLD 1968 Dacca 49 that it is a well established principle of natural justice that a person who has a bias in favour or against either of the parties to a dispute is not competent to try it. According to Black's Law Dictionary, Sixth Edition, `bias' means: `Inclination; bent; prepossession; a pre-conceived opinion; a predisposition to decide a cause or in issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side. Condition of mind, which sways judgment and renders Judge unable to exercise his functions impartially in particular case. As held in Secretary to Government Transport Department v. Munuswamy AIR 1988 SC 2232, a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Bias, as pointed out earlier, is a condition of mind and, therefore, it may not always be possible to furnish actual proof' of bias. But the courts,' for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of `real likelihood of bias' or `reasonable suspicion of bias.'
6. In this particular case, it is manifestly clear that the learned Adjudicating Officer has indulged himself in collecting evidence and this fact alone is sufficient to ignore the impugned order-in-original and set aside the same. This appeal is, therefore, accepted, the impugned order-in-original is set aside and the case is .remanded back. We have been informed that the learned Collector (Customs) who decided the case stood transferred. The Officer now sitting as Collector (Customs) Sambrial, Sialkot should take up the case afresh and after hearing both the sides shall decide the case on merits preferably within 3 months.
7. Announced.
8. All concerned be informed accordingly.
C.M.A./17/Tax(Trib.) Appeal accepted.