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Official Citation: 2026 IHC 259669
Court / Jurisdiction: Islamabad High Court
Parties: Ms. Asifa Furqan vs Custom Appellate Tribunal, Islamabad etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2026 IHC 259669. In this matter between Ms. Asifa Furqan and Custom Appellate Tribunal, Islamabad etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Inaam Ameen Minhas, Honourable Mr. Justice Muhammad Azam Khan) AUTHOR JUDGE: Honourable Mr. Justice Muhammad Azam Khan DECISION DATE: 04-MAY-2026 CASE NO: Custom Reference-72-2024 CITATION: 2026 IHC 259669 PARTIES: Ms. Asifa Furqan VS Custom Appellate Tribunal, Islamabad etc. LAW / SECTION: - SUBJECT: , REMARKS: Against order dated 27.05.2024 passed by Custom Appellate Tribunal, Islamabad ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD
Custom Reference No. 72 OF 2024 Asifa Furqan Versus Customs Appellate Tribunal, Islamabad and another.
Petitioner by : Mr. Sikandar Qazi, Advocate. Respondents by : Malik Nasir Abbas, Advocate for respondent No.1 & 2. Date of hearing : 27.04.2026 MUHAMMAD AZAM KHAN, J. This reference emanates from the Judgment of the learned Customs Appellate Tribunal dated 27.05.2024, wherein the appeal filed by the applicant was dismissed, and the order-in-original dated 13.11.2023 passed by the Collector/Directorate Adjudication was upheld. 2. Learned counsel appearing on behalf of the applicant, in support of the petition, has at the outset assailed the impugned proceedings on jurisdictional grounds. He submits that the Executive Collector lacked lawful authority to adjudicate upon allegations involving fraud or evasion/non-payment of duties and taxes, and, therefore, the assumption of jurisdiction by the said officer was coram non judice. According to learned counsel, once the matter is viewed in its correct legal perspective, the allegations, if taken at their highest, disclose no more than a technical infraction of the Import Policy Order, the legal consequence whereof would be confined to permitting re-export of the vehicle in question rather than confiscatory or penal action. He has further contended that the issuance of two separate show cause notices followed by two Orders-in- Original in respect of the same subject matter was manifestly impermissible in law. He submits that such a course was adopted merely to overcome the statutory bar of limitation prescribed under section 179(3) of the Customs Act, 1969, after the initial adjudication proceedings had become time-barred. It is argued that the subsequent proceedings were thus without lawful foundation and
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liable to be struck down on that score alone. Addressing the merits, learned counsel submits that the controversy pertains to two vehicles allegedly imported in violation of the conditions stipulated in the Import Policy Order, 2020, and that the applicant was stated to be ineligible to receive such a gift under Clause 2 thereof. He contends, however, that even assuming a breach of the said provisions, Clause 6 of the Import Policy Order expressly envisages re-export as the appropriate remedy in respect of a vehicle imported contrary to the policy. According to him, the applicant confines her claim only to the release of the vehicle for purposes of re-export and seeks no broader relief. With regard to the factual matrix, learned counsel submits that the learned Tribunal has placed reliance upon an earlier judgment rendered in relation to the vehicle imported at Karachi, wherein it was observed that the applicant had denied importation of the second vehicle and, on that basis, directions had been issued for the release of the first vehicle. He argues that the very documents upon which such alleged denial was founded were forged documents, a circumstance which, according to him, stood noticed by the Federal Investigation Agency in its communication dated 25.07.2023. He submits that this material aspect of the matter was neither examined nor given due consideration by the learned Tribunal while passing the impugned order. 3. In reply, learned counsel appearing on behalf of the Customs Department has opposed the petition and supported the orders impugned. He submits that the contentions advanced by the applicant are misconceived both on facts and in law, and do not warrant interference in constitutional jurisdiction. Learned counsel states that the donor, namely Mr. Asif Rasheed, who is the real brother of the applicant and the person stated to have gifted the vehicle in question, personally appeared before the customs authorities at Karachi on 19.04.2023 and again on 20.04.2023. On both occasions, he is stated to have unequivocally asserted that he had not gifted any second vehicle to the applicant. According to learned counsel, these appearances before the customs authorities were voluntary and contemporaneous, and carry substantial evidentiary value in determining the true factual position. With reference to the affidavit relied upon
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by the applicant before this Court, learned counsel submits that the contents thereof are contrary to the donor’s earlier statements made in person before the customs authorities and, therefore, cannot be accepted at face value. He argues that the affidavit is bereft of credibility and does not constitute a truthful disclosure of facts. In these circumstances, learned counsel maintains that no case has been made out for upsetting the impugned orders, which, according to him, are lawful, reasoned and based upon the material available on the record. 4. We have heard the arguments advanced by the learned counsel for the parties and have also perused the impugned judgment as well as the material available on record. 5. The facts, as emerging from the record, are that the appellant is the donee of a vehicle imported under the Gift Scheme in terms of Appendix-E of the Import Policy Order, 2022. The subject vehicle was imported at Islamabad through Goods Declaration No. ICSI-VB-1966 dated 05.04.2023 after completion of the requisite customs formalities. Thereafter, on 14.04.2023, the customs authorities received intimation from the Collectorate of Customs Appraisement (East), Karachi, that another vehicle had earlier been imported under the Gift Scheme at Karachi in the name of the same donee. On the basis of the said information, release of the Islamabad-imported vehicle was withheld on the basis that the import contravened Appendix-E of the Import Policy Order, 2022, which restricts availing the Gift Scheme more than once. Subsequently, a show-cause notice dated 11.07.2023 was issued to the appellant says that you have contravened the provision of Section 16, 17, 32, 79 & 192 of the Customs Act, 1969 read with relevant provision of the Imports and Export Control Act, 1950, Import Policy Order, 2022, Sales Tax Act, 1990, Federal Excise Act, 2005 and Income Tax Ordinance, 2001, followed by an Order-in-Original dated 14.09.2023. Thereafter, a second show cause notice dated 23.10.2023 was issued on the same grounds and cause of action and provision, culminating in Order-in- Original dated 13.11.2023 whereby the vehicle was confiscated and a penalty of
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Rs.500,000/- was imposed. For reference, the operative part of the order-in- original is reproduced as under: - “8. I, therefore, in exercise of powers under Section 179 of the Customs Act, 1969 read with Clause 9 of Section 156(1) ibid order out- right confiscation of impugned “Used Mercedes Benz G63 Model-2018, Chassis No. WDB4632762X310168” imported from United Kingdom vide BL No. SE321994 dated 17.01.2023, filed vide GD No. ICSI-VB- 1966 dated 05.04.2023 for violation of Section 16, 32, 79, 192 and 209 of the Customs Act, 1969 read with Ministry of Commerce’s O.M No. 1(14)2017-AC(TP) dated 02.09.2021 and Para-1(c) and Proviso to Para 2(1) of Appendix E to Import Policy Order, 2022. A personal penalty of Rs. 500,000/- (Rupee five lac) is imposed on respondent M/s Mehtab Enterprises, Customs Agent with the recommendation to licensing authority suspend his license.” 6. Being dissatisfied therewith, the applicant preferred an appeal under section 194-A of the Customs Act, 1969 before the Appellate Tribunal, which was dismissed vide order dated 27.05.2024, thereafter the present custom reference has been filed before this Court assailing the appellate order dated 27.05.2024. The questions of law framed for our considerations were recorded in order dated 23.07.2024, as follows: - i. Whether the impugned order is a judgment passed summarily in perfunctory manner and runs counter to the law laid forth in Section 194-B of the Customs Act, 1969 read with Section 24-A of the General Clauses Act, 1897? ii. Whether the disowned document or import order could be fixated on the petitioner, despite clear denial of the importer/done? 7. Before adverting further, it would be apposite to observe that jurisdiction under the Customs Act, 1969 is neither inherent nor assumed; it is purely statutory in character and must be traced to an express conferment under the Act. Section 179 of the Customs Act, 1969 constitutes the principal source of adjudicatory competence in matters relating to confiscation of goods, recovery of duties and taxes, imposition of penalty, and other contraventions under the
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Act or the rules framed thereunder. For reference, the Section 179 of the Act is reproduced as under: - “179. Power of adjudication (1) Subject to sub-section (2), in cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under this Act or the rules made thereunder, the jurisdiction and powers of the officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows, namely:- (i) Collector no limit. (ii) Additional Collector not exceeding three million rupees. (iii) Deputy Collector not exceeding one million rupees. (iv) Assistant Collector not exceeding five hundred thousand rupees. (v) Superintendent not exceeding fifty thousand rupees. (vi) Principal not exceeding fifty thousand rupees. [Provided that in cases of goods to be exported, the above officers of Customs shall have their jurisdiction and powers in terms of FOB value and twice their respective monetary limit.] (2) Notwithstanding the provisions of sub-section (1), the Board may, by notification in the official Gazette, fix or vary the jurisdiction and powers of any Officer of Customs or a class of officers, and may also assign or transfer [,by an order,] any case to any [Officer] of Customs, irrespective of the territorial jurisdiction.” 8. The plain reading of section 179 of the Customs Act, 1969 makes it evident that officers of Customs may lawfully assume adjudicatory jurisdiction only in relation to matters falling within the categories expressly enumerated therein. These may, broadly stated, be classified as (i) cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied, or erroneously refunded; (ii) cases relating to the imposition of penalty under the Act or the rules framed thereunder; and (iii) cases concerning any other contravention arising under the Customs Act, 1969 or the rules made thereunder.
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9. What is of particular significance is that the scheme embodied in sub- section (1) of section 179 is expressly made subject to modification by the Federal Board of Revenue under sub-section (2) thereof. It was pursuant to this enabling authority that the Federal Board of Revenue issued SRO 797(I)/2021 dated 21.06.2021 (in supersession of SRO 886(I)/2012), whereby the jurisdictional competence of officers serving in the Collectorate of Adjudication was specifically delineated. By virtue of the said notification, certain jurisdictional parameters otherwise flowing from sub-section (1) of section 179 stood varied and regulated in the manner prescribed therein. The relevant provisions of SRO 797(I)/2021 read as follows:— “GOVERNMENT OF PAKISTAN (REVENUE DIVISION) FEDERAL BOARD OF REVENUE ******** NOTIFICATION Islamabad, the 21st June, 2021 (CUSTOMS)
S.R.O. 797(I)/2021.— In exercise of the powers conferred by section 3 of the Customs Act, 1969 (IV of 1969), read with section 179 thereof and in supersession of its Notification No. S.R.O. 886(I)/2012, dated the 18th July, 2012, the Federal Board of Revenue is pleased to direct that, subject to paragraph 3, the Collector, Collectorate of Customs (Adjudication), specified in column (2) of the Table below shall adjudicate the cases relating to areas falling in the jurisdiction of the Collectorates and Directorates mentioned in column (3) of that Table, namely:— Sr. No. Name of Collector Adjudication Collectorate or Directorate 6. Collector, Collectorate of Customs (Adjudication), Islamabad (i) Collectorate of Customs, Islamabad. (ii) ….. (iii) …. (iv) …. (v) …… (vi) ….. (vii) …..
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(viii) …..
2….. 3. The cases of following categories shall not be adjudicated by the adjudicating officers of Collectorate of Customs (Adjudication), namely:— (a) cases involving rejection of refund or rebate; (b) cases involving technical violation of manifest clearance; (c) cases involving violations of baggage rules; (d) cases involving technical violations of import or export restrictions without the involvement of any evasion of duty or taxes; (e) cases involving determination of value under section 25A of the said Act; (f) cases specifically remanded by superior Courts to the officers of the concerned Collectorates by name or by designation; and (g) cases involving routine condonations or extensions of time limit or procedural omissions.” 10. A careful reading of S.R.O. 797(I)/2021 reveals that the notification establishes a two-tier jurisdictional framework. In the first instance, paragraph 1 confers general adjudicatory jurisdiction upon the Collectors of Customs (Adjudication) in respect of cases arising from the Collectorates and Directorates assigned to them in the Schedule. Thus, as a matter of principle, cases emanating from the territorial or functional formations specified against Collector, Collectorate of Customs (Adjudication), Islamabad, fall to be adjudicated by that forum. However, paragraph 3 of the notification introduces express exceptions to this general allocation of power. It enumerates certain classes of matters which “shall not be adjudicated” by the adjudicating officers of the Collectorate of Customs (Adjudication). The language employed is mandatory and exclusionary in character. Consequently, where a case squarely
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falls within any of the categories set out in paragraph 3, the Collectorate of Adjudication is divested of competence, and such matter necessarily remains within the jurisdiction of the officer otherwise competent under the parent statutory scheme contained in section 179(1) of the Customs Act, 1969. Amongst these exclusions, paragraph 3(d) assumes central importance in the present controversy. It excludes from the jurisdiction of the Collectorate of Adjudication “cases involving technical violations of import or export restrictions without the involvement of any evasion of duty or taxes.” The structure of this clause is significant. It is not enough that a matter concerns import or export restrictions; the violation must also be merely technical in nature, and, additionally, there must be no involvement whatsoever of evasion of duty or taxes. Both conditions must co-exist before the exclusion is attracted. The phrase “technical violations” ordinarily denotes infractions of a procedural, formal or regulatory nature, such as non-compliance with documentation requirements, breach of licensing formalities, lapse of timelines, or other contraventions not tainted by revenue loss, deceit, suppression or fraudulent intent. Such matters, being comparatively minor and regulatory in character, were consciously excluded from the Collectorate of Adjudication and left to the ordinary executive machinery. Equally materials are the words “without the involvement of any evasion of duty or taxes.” This qualifying expression narrows the scope of the carve-out. It makes plain that the exclusion under paragraph 3(d) is available only where the case is entirely free from allegations or issues of revenue evasion. The moment a matter discloses substantive allegations that duties or taxes were sought to be evaded, short-paid, unlawfully avoided, or that misdeclaration was employed for such purpose, the statutory condition for exclusion ceases to exist. Put differently, paragraph 3(d) creates a negative test. If there is no allegation of evasion, and the breach is purely technical, the matter stands excluded from adjudication by the Collectorate of Adjudication. Conversely, where allegations of evasion of duty or taxes are present, or where provisions such as sections 32, 32A or 79 of the Customs Act, 1969 are invoked in substance and not merely by recital, the case travels outside
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the paragraph 3(d) exception. In such circumstances, the notification restores the matter to the general rule contained in paragraph 1, namely that adjudication lies before the Collector (Adjudication). 11. This interpretation is consistent with both text and purpose. Notifications allocating jurisdiction must be construed harmoniously so as to give effect to every provision. If paragraph 3(d) were interpreted to include even cases involving allegations of fraud or evasion, the qualifying words “without the involvement of any evasion of duty or taxes” would be rendered otiose. Courts are not to adopt a construction which deprives statutory language of meaning. Every word employed by the rule-making authority is presumed deliberate and must be given operative effect. 12. The evident legislative rationale is also clear. Cases involving fraud, evasion, complex revenue consequences, or penal exposure are of a graver character than mere technical regulatory lapses. Such matters require specialised adjudication through the Collectorate of Customs (Adjudication), which is institutionally designed to undertake formal quasi-judicial determination. By contrast, routine technical violations may appropriately remain with the executive Collector under the ordinary jurisdictional scheme. Therefore, where the Department itself alleges contraventions grounded in sections 32, 32A, 79 or analogous provisions involving misdeclaration, concealment, non-payment or evasion of duty and taxes, it cannot simultaneously contend that the matter is a simple technical violation falling under paragraph 3(d). The Department must elect its legal characterisation. If it pleads evasion, jurisdiction lies with the Collector (Adjudication); if it pleads only a technical breach without revenue implication, then paragraph 3(d) may be engaged. Both positions cannot coexist in the same proceeding. 13. By consciously placing the matter before the Executive Collector, as opposed to the specifically notified Collector of Customs (Adjudication), the Department must be taken to have made a deliberate jurisdictional election that the case fell within the ambit of paragraph 3(d) of S.R.O. 797(I)/2021, namely, a
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technical violation of import restrictions unaccompanied by any element of evasion of duty or taxes. The selection of forum was not an administrative triviality; it was a legal determination as to the true nature and character of the proceedings. This conclusion finds further reinforcement from the operative portion of the impugned Order-in-Original itself, wherein confiscation has been founded essentially upon alleged breach of paragraph 1(c) and the proviso to paragraph 2(1) of Appendix-E to the Import Policy Order. These are policy- based restrictions governing eligibility and entitlement under the Gift Scheme. Their invocation, without any substantive finding of revenue loss, fraudulent suppression, or evasion of fiscal liability, accords with the Department’s own treatment of the matter as a regulatory or technical contravention rather than a revenue fraud case. Having thus invoked the jurisdiction of the Executive Collector on the premise that the case was one contemplated by paragraph 3(d), the Department cannot now be permitted to approbate and reprobate in the same breath. It is a settled principle of public law that a statutory authority, having adopted a particular legal position as the basis for assumption of jurisdiction, cannot subsequently resile therefrom merely because the earlier course proves inconvenient or vulnerable to challenge. The State is expected to act with consistency, candour and legal certainty. Forum allocation under S.R.O. 797(I)/2021 is determined at the threshold, that is to say, at the point when proceedings are initiated and jurisdiction is first assumed. Jurisdiction is anterior to merits. It must exist at the commencement of proceedings and cannot be retrospectively created, enlarged or validated by subsequent reasoning, by embellishment in the final order, or by altered arguments advanced during appellate proceedings. If competence was lacking at inception, the defect goes to the root and is incurable. 14. Equally, jurisdiction cannot be allowed to oscillate according to administrative convenience. The Department cannot choose the Executive Collector when expedient, yet seek refuge in allegations of evasion when jurisdiction is questioned. Such shifting stands would undermine the statutory discipline carefully structured by section 179 of the Customs Act, 1969 and
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S.R.O. 797(I)/2021. Jurisdictional notifications are enacted precisely to avoid uncertainty, arbitrariness and forum shopping within the executive hierarchy. The Department’s positive and conscious choice of forum, therefore, constitutes a clear admission against interest that no case of evasion of duty or taxes was either available on the record or intended to be pursued in law. Had allegations of evasion genuinely arisen, the matter would necessarily have been instituted before the Collector (Adjudication) in accordance with the governing notification. The contrary course adopted by the Department speaks for itself and materially weakens any subsequent attempt to re-characterize the proceedings as involving fraud or revenue evasion. 15. The objection as to jurisdiction is, in our view, no longer res integra. The matter stands authoritatively considered in Wali Shah v. Collector of Customs (2016 PTD 470), wherein Peshawar High Court, after undertaking an elaborate examination of sections 3, 4, 5, 6 and 179 of the Customs Act, 1969 read with S.R.O. 886(I)/2012, held that adjudication undertaken by an officer not vested with lawful jurisdiction is coram non judice and of no legal effect. The Court further reaffirmed the settled principle that where the foundation is void in law, the entire superstructure erected thereon necessarily collapses. In the said judgment, it is further held that: - “The bare reading of SRO 886, inter alia, would reveal that the territorial jurisdiction of the five Collectors of Customs (Adjudication) has been clearly defined. However, the jurisdiction of the said Officers of Customs has been expressly excluded to entertain certain subject matters, stipulated in para-3 thereof, which includes issues relating to technical violation of Import Policy. It would be also very pertinent to note that, SRO 886 did not vary the pecuniary limits of the Collector of Customs (Adjudication) and it remained, as expressed in subsection (1) of section 179 of the Act. The Revenue was unable to provide any other order of FBR, varying the pecuniary limits expressed in subsection (1) of section 179 of the Act. Thus, it would be safe to state that, SRO 886 of 2012 determined the territorial jurisdiction of Collector of Customs (Adjudication) and excluded from their jurisdiction cases, expressly mentioned therein, including cases relating to technical violation of Import Policy. The pecuniary limit, expressly provided under sub-section (1) of section 179
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of the Act, was not disturbed and it remained applicable to all Officers of Customs, irrespective of whether they were in the Adjudication Collectorate or other Collectorates, such as Preventive or…
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