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Customs Appeal No.K-124 of 2012, decided on 14th June, 2012.

----S.194-B(1)---Orders of Appellate Tribunal---Stay application---Principle of mutatis mutandis---Appellant contended that during the hierarchy of customs before the Additional Collector of Customs as well as the First Appellate Authority, the subject matter pertaining legal and factual controversy were not to be taken up in accordance with the law and that the case was decided arbitrarily without applying judicious mind only on the principle of mutatis mutandis and disposed of the matter without discussing the factual as well as legal controversies---Validity---Customs authorities were required to pass separate orders in each case and the litigant had a right to contest their case, which should be disposed of on its legal and factual positions separately---Application of principle of mutatis mutandis was depricated---Action taken by the Department against the appellant in the subject pending appeal was violative of S.194-B(1) of the Customs Act, 1969---Appellant had established the prima-facie case, balance of convenience was also in favour of appellant which should also cause irrecoverable loss to the appellant---Appellate Tribunal directed that department should not take any coercive action against the appellant till the next date of hearing. Afzal Awan for Appellant. Ghulam Yasin for Respondent No.2. Date of hearing: 14th June, 2012.

The appellant moved an application along with the urgent hearing as well as stay application. The learned Advocate for the appellant, contended that during the hierarchy of the customs before the Additional Collector of Customs as well as the Collector (Appeals), the subject matter pertains legal and factual controversy are not be taken up in accordance with the law but on the contrary the case was decided arbitrarily without applying his judicious mind only on the principle of mutatis mutandis and disposed of the matter without discussing the factual as well as the legal controversies as placed by the appellant"s advocate orally or in writing. 2. In the light of the observations made by the Hon"ble Sindh High Court with that particular points of mutatis mutandis in their judgment reported as 2011 PTD 2849, observed that the customs authorities are required to pass separate orders in each case and the litigant had a right to contest their case, which should be disposed of on its legal and factual positions separately. The concept of mutatis mutandis was depreciated by the said observation. Keeping in view the said observations as well as the orders passed during the hierarchy of customs, and as such the action taken by the respondent against the appellant in the subject pending appeal is violative with regard to the section 194-B subsection (1). The appellant has established the prima-facie case balance of convenience is also in favour of appellant which should also cause irrecoverable loss to the appellant. 3. Under the said circumstances, we are of the view that the respondents should not take any coercive action against the appellant till the next date of hearing. Issue notice to the parties for 21-6-2012. CMA/144/Tax(Trib.) Order accordingl

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