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Customs Act, 1969: How disputes resolved through adjudications

The proceedings under Customs Act, 1969, particularly with respect to confiscation of goods, recovery of duties and imposition of penalty are a subject matter of adjudication. Adjudication is the legal process of resolving a dispute, that is, a formal giving or pronouncing a judgement or decree in a court proceeding and includes a judgement or decision given. Thus proceedings before an administrative agency in which the rights and duties of one particular aspect are adjudged are adjudication proceedings.

The Customs Act, 1969 also provides that where confiscation of goods is involved or penalty is to be imposed, such disputes are to be resolved through adjudication process and for that purpose FBR has appointed adjudication officers with specified jurisdictions and functions.

In order to resolve a dispute, the first step for the adjudication officer is to issue a show-cause notice and such notice must specify the grounds on which an adjudication is proposed. The show cause notice should provide a reasonable time for making a representation in writing or orally. The principles of adjudication also require that the affected importer be provided an adequate and reasonable opportunity of hearing.

The requirements of a reasonable opportunity include:

(i) That the person proceeded against should be clearly and specifically told charges standing against him;

(ii) That he should be given full and adequate opportunity to explain and establish his innocence;

(iii) That he should be allowed to show cause against the punishment;

(iv) That there must not be any mala fides anywhere; and;

(v) That whole thing must be honest and fair deal done with a sense of responsibility.

So once the affected individual receives a show cause notice, he is bound to reply the causes show and it is in his interest to participate in the hearings of the case before the adjudication officer.

The adjudication officer after giving the party concerned an opportunity of hearing will decide the matter giving his reasons in writing of his decision. At the same time, the adjudication officer is required to abide by the principles of natural justice. Generally these principles include:

(a) Where a person’s rights are being affected he must be given a reasonable notice of the causes against him;

(b) Party being affected must be heard;

(c) Adjudication must be done by an impartial tribunal;

(d) The authority must act in good faith and no arbitrary action should be taken.

The decision of the adjudication officer is not final. An aggrieved person can appeal against the said order before the Customs Appellate Tribunal within 30 days of the decision. The bench of the said tribunal consist of two members namely, Member Technical (a customs man) and member Judicial (a representative of the judiciary) the bench hears the appeals either in person or through a pleader. The bench decides the case after hearing the affected parties. Affected party may be an individual or the department.

Once the matter is decided by the appellate tribunal, an aggrieved person can file a reference in the High Court on questions of law only. The High Court will answer the questions of law so framed either in the affirmative or by negating the same. The order in the said reference will be passed by a Division Bench of the High Court.

Against the decision of the High Court, an aggrieved party can appeal to the Supreme Court by leave of the Court. The process is independent and FBR can not interfere in this process as ordained by the law.

The orders made by adjudication officer are binding on the government unless the same are set aside by a competent court. Many individuals think negative or question the authority of the adjudication officer. It is submitted that adjudication officer is a creature of law and has been bestowed upon powers through the law, hence his orders are binding on all the authorities except where an authority feels aggrieved, it may follow the process of appeal or reference as the case may be.

The orders and judgements given by Customs Tribunal are reported in the leading law journals like PTD, PTCL and Sindh and Balochistan Law Reporter for the convenience of public and pleaders. The principles of law enunciated by these tribunals are binding on all customs authorities. Even the tribunals are also bound by their own decisions.

For example, Customs Tribunal in a case has decided that the duty of the importer in respect of declaration only relates to description of goods and where PCT no has been written wrong or has been omitted it is the duty of the assessing officer to correct the same during the process of assessment as laid down under the provisions of the Customs Act, 1969, which binds the customs officers to satisfy himself regarding the correctness of the particulars of imports through examination process and he is also bound to check the declaration and assessment. These provisions also provide the binding duties to be performed both by importer and exporter. It may be noted that many administrative actions are adjudicatory in charter when they culminate in final determination affecting personal or property rights.

(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates)

Zafar Azeem, "Customs Act, 1969: How disputes resolved through adjudications," . .
Keywords: Social issues , Law making , Economic issues , Customs Act , Natural justice , Property rights , PTD , PTCL

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