The Customs Act, 1969 [herein referred to as the Act] is the law relating to levy and collection of customs duties, fee and service charges including the allied matters relating to import controls and taxation on imports.1 The Act is very exhaustive and deals with numerous aspects relating to levy and collection of customs duties and allied taxes. The Act empowers officers to prevent smuggling, to arrest offenders, to carry out searches, to make seizures, and to make recovery of escaped and unpaid duty and taxes.
For to resolve the disputes arising out of customs administrative actions, the Act provides ability to act and control the required actions in this regard2 and also confers powers, specifies jurisdiction, prescribes monetary limits on the officers of customs. An officer of customs can accordingly carry out the following functions:
I). He can confiscate the offending goods3
II). He can make recovery of duty and taxes not levied, short levied or erroneously refunded;4
III). He can impose prescribed penalties5; and
IV). Can take cognizance of the contraventions committed under the act.6
The powers of officers under the Act have been specified7 and the statute has authorised the Federal Board of Revenue [FBR] to fix and vary the jurisdiction and powers of the officer of Customs, the board has also been authorised to assign, delegate or entrust powers to specified officer's, authority and tribunal or to assign these powers to any officer of Custom irrespective of their territorial jurisdiction.8
The forms of jurisdiction specified in the Act, include:
a) Monetary jurisdiction9
b) Territorial jurisdiction10
c) Subject matter jurisdiction or the functional jurisdiction, that is, empowering certain functions to officers and authorities other then Customs.11
The structure of jurisdiction given in the Act is in line with the concept of jurisdiction meant for courts. Within the framework of law, a court encompasses territorial, pecuniary and subject matter jurisdiction, the same structure of jurisdictions has been followed in the Act,12 and sub-section (2) of section 179 of the Act regulates these functions through statutory rules and orders.
The concept of jurisdiction in the Act is quite elaborate and can be found in sub-section (b) of section 2, section 4,5,6,7, section 179 and 185 B of the Act. The territorial or subject matter jurisdiction is to be conferred by FBR to different classes of officers by specifying such powers and functions in the notification.13 The powers so conferred include to fix or vary the jurisdiction and powers, through assignment or transfer.14 In addition to statutory or authorised powers in different forms, the officers and tribunals constituted under the Act do possess the jurisdiction, that is, the legal authority so vested or conferred on them to hear and decide the matters falling under their jurisdiction.
The Act deals with the exercise of powers in manifold ways and has prescribed the following structure to regulate the powers of officers under the Act:
a) Primary jurisdiction and powers
b) Assignment
c) Entrustment
d) Delegation
e) Empowerment
f) Transfer15
The primary jurisdiction under the Act is the power to decide an issue in the first instance. It is the initial decision making or responsibility between the department and the Court where an overlap exists.16
Where powers have been assigned to a specific authority or officer, it means that the relevant powers stand transferred and conveyed in full to such officer or authority and the officer whose powers have been assigned will cease to have powers to that extent.17. Where under the statute the powers have been entrusted that means the individual to whom the powers have been entrusted assumes full and exclusive responsibility.
In case of delegation, the act of delegation means entrusting of powers to another person or authority or empowering another to act in that behalf. It involves transfer of authority or power from one to another or in other words it is giving part of one's power or work to someone else. So where the powers have been delegated, the person to whom delegated powers have been given replaces the one whose powers stand delegated.
Similarly, empowering someone means to give authority or official permission to act accordingly. As is evident there are different forms of jurisdiction being given to authorities and officers under the Act.
The purpose of such power distribution is to understand the concept of the doctrine of ultra vires, which means that authorities and tribunals should act within the framework of their powers conferred under the law and not otherwise. Any administrative act or order which is ultra vires or outside jurisdiction is void in law, ie deprived of legal effect. This is because in order to be valid it needs statutory authorisation, and if it is not within the power given by the Act, it has no legal leg to stand on. Once the court has declared that some administrative act is legally a nullity, the situation is as if nothing had happened. In this way, the unlawful act or decision may be replaced by a lawful one.
(The writer is an Advocate and is currently working as an Associate with Azim-ud-Din Law Associates Karachi)
1. See preamble to the Customs Act, 1969.
2. See the provisions of section 179 of the Act.
3. For to see offences and the categories of punishments liable under the Act, see subsection (1) of section 156 of the Act.
4. See section 32 of the Act.
5. Id. n3
6. Id. n4
7. Under sub-section (1) of section 179 of the act, the monetary limits have been fixed as under:
a) Collector: no limit.
b) Additional collector not exceeding three million.
c) Deputy collector: not exceeding one million.
d) AC: not exceeding five hundred thousand.
8. See sub-section (2) of section 179 of the Customs Act, 1969.
9. See section 179 of the Act.
10. Id. n2.
11. See the provision of section 4 red with clause (b) of section 2 of the Act.
12. See Province of Punjab v. Messer Muhammad Tufail & Company: PLD 2017 SC 53.
13. See SROs 371(1) 2002, SRO 886(1) 2012 and SRO 500(1) 2009, SRO 638(1) 2015, SRO 639(1) 2015, SRO 1019(1) 2007, SRO 495(1)2007.
14. See section 5 of the Act. The statute has authorised director generals, directors, and collectors so authorised and where Federal Board of Revenue so Directs otherwise, the authority of the board will prevail. 15. It may relate to subject matter and transfer of cases.
16. See the provisions of section 185B of the Act, where exclusive jurisdiction to try and punish offenders under the Act has been bestowed on Special Judge Customs of each province, but the primary jurisdiction of officers of Customs relating to departmental adjudication still remains with the departmental officers. Thus as per the scheme of law the powers have been divided between the departmental officers and the Court, thus for criminal proceedings, the court of special Judge has been given exclusive jurisdiction.
17. The statute has authorised the FBR to assign or transfer any case to any other officer of customs irrespective of territorial jurisdiction, as per the provisions of sub-section (2) of section 179 of the Act.
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