2003 P T D 777

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui and Azizullah M. Memon, JJ

ENGRO CHEMICAL PAKISTAN LTD.

Versus

ADDITIONAL COLLECTOR OF CUSTOMS and others

Special Custom Appeal No.25 of 2002, decided on. 26th September, 2002.

(a) Central Excises Act (I of 1944)---

----Ss.36-C---Sales Tax Act (VII of 1990), Ss. 46 & 47---Customs Act (IV of 1969), Ss.
196---Appeal/reference before High Court-Scope---Failure of Tribunal to pass proper speaking order by
considering all questions of facts and law raised by the parties---Effect---Tribunal a final forum for deciding
facts---Scope of appeal before High Court limited to questions of law arising out of order of
Tribunal---Disposal of appeal by Tribunal by a summary and slipshod order deprecated---Every judicial order
should be a speaking order---Failure of Tribunal to pass proper judicial order by considering all questions of
facts and law raised before it would amount to negation of justice as in such case High Court would not be
able to decide questions of law.

(b) Administration of justice---

---- Every judicial order should be a speaking order.

Aziz A. Shaikh for Appellant.

M. Fariduddin for Respondents.

ORDER

In this appeal under section 36-C of Central Excises Act, 1944, the following questions of law have been
proposed by the appellant:

"(1) Whether learned CEAST has misapplied the Special Procedure for collection of CE duty on supply
and distribution of gas prescribed under Rule 96 ZZO of CE Rules 1944?

(2) Whether learned CEAST has acted contrary to provision of section 3(1) of the CE Act, 1944 read
with heading 9817.0000 of S.R.O. 456(I)796, dated 13-6-1996 by changing character of appellant as
consumer to as producer/manufacturer merely of gas supplies to its labour colony?

(3) Whether proceeding impugned initiated on 31-5-1999 for transactions concluded during
November, 1996 to June, 1998 is barred by time under Rule 10(1) of CE Rules, 1944 read with S.R.O.
539(I)/94, dated 9-4-1994?"

A perusal of the impugned order, with the assistance of learned Advocates shows that, the points sought to be
raised before us have not been decided by the learned Tribunal. Mr. Aziz A. Shaikh, learned counsel for the
appellant has shown us the grounds of appeal, raised before the Tribunal and has contended that, all these
points were raised before the Tribunal but the learned Members of the Tribunal disposed of the appeal by a
slipshod order, without considering all the facts and points of law raised before them.
We find, substance in the contention of Mr. Aziz A. Sheikh. In such cases the difficulty before the High Court
arises in deciding the actual point of law, for the reason, 'that, under the provisions of section 36-C of the
Central Excises Act, 1944, and under the analogous provisions of Customs Act and Sales Tax Act, only such
questions of law can be raised before the High Court as arise out of the order of the Tribunal. Thus, if the
learned Tribunal fails to pass proper judicial order by considering all the facts and points of law raised before
it, it amounts to negation of justice. Every judicial order should be a speaking order and particularly in tax
matters, where the scope of appeal/reference before the High Court is very limited. The Tribunal is always
required to dilate upon all the questions of facts and law agitated before it, so that, the High Court is not
handicapped in deciding the questions of law.

For the foregoing reasons, the impugned order is set aside and the appeal is remanded back to the Customs,
Excise and Sales Tax Appellate Tribunal Karachi Bench, with the direction to rehear the appeal after giving
reasonable opportunity of being heard to the parties and decide all the issues of facts and law raised by the
parties before the Tribunal, by an elaborate and speaking order.

We further direct that, in future no appeal should be disposed by the Tribunal by a summary and slipshod
order. The Tribunal is a final forum for deciding facts, and as already observed, the scope of appeal before the
High Court is limited to the question of law arising out of the order of the Tribunal, therefore, the Tribunal
should not merely dispose of the appeals but should decide the same, meaning thereby, that, each and every
point of fact and law should be given due consideration and be decided by speaking order. The appeal stands
disposed of as above.

S.A.K./E-19/K Appeal disposed of.