Revisional jurisdiction under the Customs Act

The powers of revision of a matter by a competent authority are meant for a re-examination or a careful review for correcting the error or mistake for improvement. In the Customs Act, 1969 [hereinafter referred to as Act] the powers are contained in sections 195 and 25D of the Act. We now begin by examining the revisional powers conferred on the Federal Board of Revenue [FBR] and the Collector of Customs under section 195 of the Act.
These legal provisions authorise the FBR or the Collector to examine the records of any proceedings to satisfy itself in respect of legality and propriety of the action under review. The law has thus prescribed specific grounds for re-examination of a case and a specified time in which an order can be re-opened and that is 2 years from the passing of the order being reopened. In other words, the competent authority under the Act has the powers to reopen any proceedings but within the frame work of time, that is, two years and on the basis of specified grounds namely, illegality and impropriety.
The fact is that the courts have developed a body of substantive principles of public law to ensure that the government departments do not exceed or abuse their powers.
Hence the courts may review these actions to ensure that:
a) No error of law has been committed;
b) No irrelevant factor has been considered;
c) The authority has acted within the framework of law;
d) The action taken is not unreasonable; and
e) All the procedural requirements have been met.1
Where an authority has failed to derive its authority from the statute, the action will be illegal.2 It6 is an agreed principle that the word propriety in the context of section 195 of the Act has reference to the propriety of order in the light of the law which becomes applicable to the merits of case and the purpose is not intended to grant general and unlimited jurisdiction to the revisional authority in order to dispel the grounds whatsoever.3
In order to further clarify the issue we use a practical example where jurisdictional error takes place and the whole proceedings become illegal. In a recent case as a consequence of an audit a past and closed transaction was being reopened. Rather than applying the mind the authorities referred the case to the Collector Adjudication. The matter pertained to the application of sub-section (3) of section 32 of the Act. The action of the department was successfully challenged on the grounds that the authority who issued the show cause notice had no jurisdiction to take cognisance and that the matter should have been re-opened in terms of section 195 of the Act. It is evident that where an assessment has properly been completed and there was no objection as to the making of false and untrue statement, in terms of sub-section (1) of section 32 of the Act, the authorities were not competent to charge a person for the violation of section 32 of the Act. Furthermore, the notice was issued under subsection (3) of section 32 of the Act, and for such action the collector adjudication had no jurisdiction as specified in SRO 371 (I) 2000
Hence the initiation of proceedings by the collector adjudication lacked the authority to take a legal action in this regard. It was contended on behalf of the taxpayer that a tribunal or forum seizing power to adjudicate the matter must be properly constituted, that is, the tribunal be constituted per say in terms of law and where a tribunal is not constituted in accordance with law it becomes corum non judice, and since the law and regulation had not authorised collector adjudication to seize powers in terms of section 32 (3) of the Act, hence taking cognisance of the case would amount to an illegality in as much as that the tribunal was not properly constituted and its action would amount to nullity of law.
Furthermore, the assessment proceedings in the case were legally perfect and this fact was not denied by the revenue as such an assessment on the ground of legality and propriety could only be reopened by a competent authority and that too within the framework of time limit prescribed by the statute, and where the action was not within the framework of law the same was illegal and without jurisdiction.
These are the considerations for the public authorities to look into before initiating legal actions against the taxpayers, and in this background if we review the revisional jurisdiction they have a limited application being restricted to oversee the illegality and the propriety in the order. Where no such grounds are available the exercise to reopen a case would be a futility.
Then in terms of section 25D of the Act the Director General Valuation has been given revisional powers to review the order of fixation of customs value under section 25A. It has been observed that tendency of the authorities is that they initiate a fresh inquiry and unconcerned are invited to become party to the proceedings and the exercise of fixation of value in terms of section 25A is initiated afresh. It is submitted with respect that the intention of law does not support such type of action by the Director General as the revisional powers are only restricted to oversee the illegality and propriety of the order passed by the lower authority. Deviance from the requirement of law would make such proceedings illegal per say since where a revisional motion does not allege illegality or impropriety in the orders made in terms of section 25A of the Act there will be no case for interference.
In the light of what has been stated above, it is submitted that the revisional powers are to be exercised within the framework of law and not otherwise.
Attention is also drawn towards section 115 of the Code of Civil Procedure 1908 where in the ground for revisional powers have been provided. As per these provisions grounds for filing a revision one has to show that the exercise of jurisdiction was not vested with the authority exercising the same, the authority below failed to exercise a jurisdiction so vested in him or the authority below exercised a jurisdiction illegally. Accordingly, the revisional authorities have to be careful while exercising these powers as the law has prescribed limits. In many cases, the authorities may start fresh proceedings which in our humble view are an illegal practice as the illegality or impropriety must be apparent from the face of record of the proceedings being reviewed.
As is evident from the provisions of CPC, where the grounds stated in the statute are not present there is no case for the exercise of revisional power. (The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi) 1. See Council of Civil service Union v. Minister for the Civil services [1985] AC 374.
2. See Rv. General Medical Council, exp Coleman [1990] 1 All E.R.489.
3. Shams Ur Rehman v. The State PTCL 2009, CL 83