Sections 194-A, 194-B of Customs Act: Customs AT has power to execute its orders: SC

ISLAMABAD: The Supreme Court declared that the Customs Appellate Tribunal has the power to execute orders passed in exercise of its appellate jurisdiction under sections 194-A and 194-B of the Customs Act, 1969.

It said that the courts and statutory tribunals must be held to possess the power to execute their own orders; for when a court or tribunal is conferred jurisdiction or substantive power to make an order, the power to execute such an order, being ancillary and incidental, is also impliedly conferred by the statute.

This is necessary because the jurisdiction or substantive power would be useless if the order passed in exercise thereof could not be executed and enforced.

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The same principle applies to the jurisdiction and substantive power of the Tribunal under sections 194-A and 194-B of the Customs Act.

“Since an adequate remedy is provided by law, the writ jurisdiction of the High Court cannot be invoked for executing orders passed by the Tribunal,” said a three-judge bench headed by Justice Mansoor Ali Shah.

The bench heard an appeal against the Lahore High Court (LHC)’s order, dated 28.06.2024. The LHC had dismissed a writ petition, wherein, it was prayed to direct the Collector of Customs (Enforcement) to comply with the Tribunal judgment.

The officials of the Customs Collectorate (Enforcement), Lahore, seized a certain quantity of gold, alleged to be smuggled, along with a vehicle transporting the said gold, from the possession of Umer Farooq and Mussarat Shaheen (appellants 3 and 2).

During the investigation, Muhammad Khalid (appellant 1) claimed ownership of the seized gold and asserted that Umer Farooq was merely his representative, who was transporting the gold to his shop in Faisalabad. All three appellants were charged with contravening several provisions of the Customs Act and the Imports and Exports (Control) Act, 1950.

The Collector of Customs (Adjudication), Lahore, vide order dated 29 November 2021, confiscated the seized gold and car, allowing the release of the car subject to the payment of a redemption fine. The appellants appealed this order before the Tribunal under Section 194-A of the Customs Act. By its judgment dated 20 December 2022, the tribunal partially allowed the appeal to the extent of certain pieces of gold that were not found to be of foreign origin and ordered their unconditional release. The Tribunal also ordered the release of the car to its lawful owner upon payment of the redemption fine at the rate of 20 per cent of the customs value.

Both the appellants and the Collector of Customs preferred customs references against the Tribunal’s judgment.

During the pendency of these references, the appellants submitted an application to the Collector of Customs (Enforcement), Lahore, seeking implementation of the Tribunal’s judgment and contending that its operation had not been stayed by the High Court in the reference proceedings.

Receiving no response from the Collector of Customs (Enforcement), the appellants filed a writ petition in the LHC, praying that the Collector of Customs (Enforcement) be directed to comply with the Tribunal’s judgment. The LHC dismissed the writ petition by its order dated 28 June 2024, observing inter alia that the appellants could not seek implementation of the Tribunal’s judgment since they themselves had assailed it in the reference proceedings. The appellants, therefore, approached the Supreme Court.

The SC’s verdict noted as per the facts, the Tribunal’s judgment has not been stayed by the High Court in the reference proceedings. The Tribunal’s judgment is, thus, fully operative and executable.

The SC’s judgment said there is no provision in the Customs Act that specifically provides for the power of the Tribunal to execute its orders. However, it is a well-established principle of statutory construction, as stated by Maxwell and approvingly cited by this Court in Ali Sher Sarki, that where a statute confers jurisdiction, it also grants, by necessary implication, the powers to do all such acts or employ all such means as are essentially necessary for its execution.

A statute that expressly confers a substantive power upon a court or tribunal also impliedly grants all incidental and ancillary powers necessary for the effective exercise of that substantive power. These incidental and ancillary powers, thus, necessarily flow from the express substantive power.

There is no doubt that the Tribunal functions as a judicial body within the limits of its jurisdiction. It has all the powers expressly conferred upon it by the statute, i.e., the Customs Act.

Furthermore, being a judicial body, it also possesses all those incidental and ancillary powers necessary for the exercise of the jurisdiction conferred upon it and to make fully effective the grant of statutory substantive powers. Such powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal or because its jurisdiction is plenary, but because it is the legislative intent that the power expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised.

The powers of the Tribunal are, no doubt, limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, can only include such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective.

Copyright Business Recorder, 2024