Importer wins case as delay in order held invalid

LAHORE: A goods importer has proved that a direction provided in the law for passing an order within certain period of time is mandatory and not directory and non-compliance of such a mandatory provision would invalidate the order-in-original.

The department, on the other hand, was of the view that such period of limitation was directory, and not mandatory. As per law, the matter was to be decided within 30 days from the issuance of show-cause notice and this period could be extended by the collector for maximum period of 60 days for reasons to be recorded.

However, the order-in-original was passed after 112 days whereas it was stated in the concluding paragraph of the said order that the collector (adjudication) has granted extension. Neither any reasons of the said extension were mentioned nor were it stated as to when the original period had expired, when the extension request was made and how much period was extended by the collector.

Since the maximum period for which the collector could extend the adjudicating proceedings was 60 days, therefore, the order-in-original was required to be passed within a period of 90 days from the date of show cause notice.

It further reflects that in the entire order-in-original nothing has been stated as to any adjournment sought by the goods importer, therefore, no such period is to be excluded from this time line. The importer challenged the order-in-original before the tribunal which agreed with him and decided the matter against the department.

The department preferred a reference before the higher appellate forum proposing various questions of law. However, the appellate forum preferred to focus on the question of time frame given in the law to adjudicate a matter pending before the department and decided the entire controversy.

It maintained that Section 179(3) of the Customs Act provides that in cases where goods are lying at sea-port, airport or dry-port, they shall be decided within thirty days of the issuance of show cause notice, which is mandatory and not directory. Therefore, the finding of the tribunal with respect to question in hand is unexceptional and does not warrant any interference.

Copyright Business Recorder, 2025