SYED ARSHAD ALI, JUSTICE:---.---

This is a Custom Reference filed by the Collector Customs, Peshawar under Section 196 of the Customs Act, 1969 ("Act"), against the judgment/order passed by the learned Custom Appellate Tribunal ("Tribunal") dated 25.09.2018, for adjudication of questions of law framed in the memo. of reference, purportedly arising out of the judgment of the worthy Tribunal.

2. Briefly stated facts of the case are that an audit team was constituted by the appellant/department vide office order C.No. Cus-Mandi, Peshawar and it was observed by the audit team that the respondent and M/S Sharif Customs Agency, Namak Mandi, Peshawar (clearing agents) have evaded the amount of duty/taxes to the tune of Rs.3,812,260/- by violating the provisions of Section 32(2)(2A) of the Act and Section 3 of the Sales Tax Act, 1990 punishable under Section 156(1)(14) of the Act and Section 33 of the Sales Tax Act, 1990 which was recoverable from the importer/clearing agent, besides taking penal action under the aforesaid provisions of law.

3. On completion of the requisite formalities, the matter was placed before the Collector ofCustoms (Adjudication), Islamabad who issued a show cause notice dated 14.07.2014 to the respondent and vide order-in-original dated 28.04.2015 ordered to deposit the short payment of duty/taxes to the tune of Rs.3,812,260/- into Government Treasury. Against that, the respondent filed appeal before the Tribunal and the learned Tribunal allowed the appeal, set aside the Order-in-Original No.33/2015 vide order dated 25.0.2018; hence, the instant Custom Reference.

4. Arguments heard and record of the case was perused

5. In the present case, good number of questions of law have been framed for adjudicationof this Court, however, present to the relevant controversy is "whether the adjudicating authority has decided / adjudicated the matter within the timeline provided under section 179 of the Act and if not its effect."

6. It is evident from record that the show-cause notice was issued to the respondent on

14.07.2014, the case was heard on 24.07.2014, 21.08.2014, 30.09.2014, 29.10.2014, 12.11.2014, 26.11.2014, 16.12.2014, 13.01.2015, 27.01.2015 and 04.02.2015 and the judgment was announced on 28.04.2015. The details of the said proceedings are reproduced as under:"Hearing dated 30.09.2014

Mr. Mushtaq Hussain. Appraising Officer, MCC, Peshawar represented the prosecution while Mr. Zahid Khan, Manager Finance, Deans Industries, Peshawar attended the hearing on behalf of the respondents and submitted written reply to the show-cause notice. Copy of the reply was provided to the Departmental Representative for submission of their comments before next date of hearing. Next hearing in the instant case was fixed for 29.10.2014.

Hearing dated 29.10.2014

Mr. Mushtaq Hussain, Appraising Officer, MCC, Peshawar was present for hearing on behalf of the prosecution, while Mr. Zahid Khan, Finance Manager, M/s. Deans Industries (Pvt.) Ltd Peshawar was also present. The Departmental Representative submitted para wise comments on the written reply of the respondent firm, copy of which was duly provided to Mr. Zahid Khan, for counter reply / rejoinder, if any to be submitted on or before next hearing. Mr. Darwesh Shah, Clerk of M/S Sharif Customs Clearing Agency, also attended the hearing and submitted written reply to the show-cause notice, copy of which was also provided to the departmental representative for comments to be submitted on or before next date of hearing. Next date in the instant case fixed for 12.11.2014.

Hearing dated 12.11.2014

No one appeared from either side for hearing. The respondents also failed to submit rejoinder on the comments dated 24.10.2014 of the prosecution, copy of which was duly provided to Mr. Zahid Khan, of M/S Deans Industries (Pvt.) Ltd. Peshawar on 29.10.2019. Next date of hearing in the instant case is re-fixed for 26.11.2014.

Hearing dated 26.11.2014

Both the representatives of the respondent (importer) and prosecution appeared to attend the hearing. The departmental representatives submitted their comments on the reply of clearing agent. A copy of the same was provided to the respondent for their written/verbal arguments Case is adjourned for next date on 16.12.2014

Hearing dated 16.12.2014

No one appeared for hearing from either side. Hearing in the instant case was further adjourned till next date of hearing on 13.01.2015. On this date, Mr. Zahid Khan appeared on behalf of respondent. No one appeared from prosecution. A copy of comments received from the prosecution once again provided to the respondent for their rejoinder if any and case is further adjourned to 27.01.2015

Hearing dated 27.01.2015

No one appeared to attend the hearing on behalf of importer as well as clearing agent (respondents). However, rejoinder on para wise comments submitted by the prosecution was received Mr. Mushtaq Hussain appeared from prosecution side.

Hearing dated 04.02.2015

Mr. Aurangzeb Inspector MCC, Peshawar appeared for hearing. On one from the respondent's side attended the hearing. Write reply of the respondents and comments of the prosecution have already been received and are available on the file. No further hearing is required."

7. The perusal of the aforesaid order sheets would show that some proceedings were conducted on the dates of hearing, however, the adjudicating officer has unnecessarily prolonged the matter without obtaining the requisite approval from the competent authority for extension in time, therefore, it is evident that the proceedings could not be completed within the timeline as provided under Section 179(3) of the Act which is reproduced as under:--

"15[179. Power of adjudication.--[(1) Subject to subsection (2), in cases involving confiscation of goods or recovery of duty and other uses taxes not levied, short levied or erroneously refunded, importion of penalty or any other contravention under this Act or the rules made thereunder, the jurisdiction and powers of the officers of customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows, namely:

i) Collect not limit

not exceeding three million

ii) Additional Collectorrupees

iii) Deputy Collector not exceeding one million rupees iv) 45[Omitted]

not exceeding "[one hundred]

v)Superintendentthousand rupees. not exceeding "[one hundred]

vi) Principal Appraiserthousand rupees.

[Provided that in cases of goods to be exported the above officers of Customs shall have their jurisdiction and powers in terms of FOR value and twice their respective monetary limit.

(2) Notwithstanding the provisions of subsection (1), the Board may, by notification in theofficial Gazette, fix or vary the jurisdiction and powers of any Officer of customs or a class of officers, and may also assign or transfer (by an order) any case to any [Officer] of Customs, irrespective of the territorial jurisdiction

(3) The cases shall be decided within (ninety) days of the [issuance of show-cause notice] or within such period extended by the Collector for which reasons shall be recorded in writing, but such extended period shall in no care exceed [sixty] days.

Provided that in cases, wherein the provisions of clause (S) of section 2 have been invoked, such cases shall be decided within a period of thirty days of the issuance of show-cause notice] [Provided further that any period during which the proceedings are adjourned on account of a stay order or alternate dispute resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days, shall be excluded for the computation of aforesaid periods

(4) The Board shall have the powers regulate the system of adjudication including transferof cases and extension of time-limit in exceptional circumstance.

(5) Notwithstanding anything contained in this Act, or any other law for the time being inforce and notwithstanding any decision judgment of any forum, authority or court whether passed on or before the commencement of the Finance Act, 2006, the time for adjudication in all the cases pending as on first day of July, 2006, for whatsoever reasons shall be deemed always to have been extended up to 31st day of December, 2006."

8. The issue has been laid at rest by the Apex Court in the case of "Messrs Mujahid Soap and Chemical Industries (Pvt.) Ltd. v. Customs Appellate Tribunal, Bench-1, Islamabad and Others" (2019 SCMR 1735)" in the following manner:-

"5. We asked the learned counsel for the respondents to explain what in her view was the meaning of "decided" in the present case. She said that the matter was decided when it had been heard and the judgment was reserved for release of the reasons. However, it is conceded that on 24.12.2013 no decision was verbally announced by the adjudicating officer nor was any decision communicated to the parties prior to the issuance of the orderin-original dated 19.02.2014. We fail to understand how a decision can be said to have been taken without announcement or communication thereof to the parties. To our understanding the law is quite accommodating for the taxing authority as an extension is available beyond the originally prescribed period of 120 days for rendition of a decision. Even though no decision is communicated within the said period, such an extension can be sought and granted subsequently but in such an event is mandatory that the decision comes within 180 days after the date of show-cause notice. This view is expressed by the Court in its recent judgment reported as Collector of Sales Tax v. Super Asia Mohammad Din and Sons (2017 SCMR 1427 at paragraph 11)

6. In the present case however, the respondent-Deputy Collector did not even apply for an extension but consumed 157 days to record the reasons for his judgment and to communicate the same to the parties. We cannot accept the proposition that such decision had taken place as and when the hearing was concluded. It is necessary that an adjudicatory decision be recorded and duly communicated to the parties. That has not happened in the present case. Therefore, according to the record of the case, the decision took place on 19.02.2014 and not on 24.12.2013 as contended by the learned counsel for the respondents."

9. Therefore, we are of the considered view that in view of the judgment passed by the Apex Court in 'Mujahid Soap case supra', the order-in-original having being passed in violation of law Le beyond the time prescribed under Section 179 of the Act, hence, the impugned decision passed by adjudicating officer is invalid, therefore, the findings of the Tribunal in para No.14 of its judgment are not open to any exception and seems to be in consonance with the law laid down by the Apex Court in the cases of "Super Asia Muhammad Din and sons and Messrs Mujahid Soap and Chemical Industries ibid." Thus, the same does not call for any interference. Since, the order-in-original is liable to be vacated on the aforesaid grounds, therefore, we need not to render any opinion on the other question raised in this Custom Reference. Resultantly, this question is answered in negative. Copy of this judgment be sent to the learned Customs Appellate Tribunal in terms of Section 196 (5) of the Act.

Reference dismissed