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Review Petition Misc. No.55/PB of 004 (in Customs Appeal No.7(217)ATIB/98), decided on 7th July, 2009.

----194-B(2)---Orders of Appellate Tribunal---Review---Limitation---Notices were issued, no one was present for the appellant/Department on the fixed date---Appeal was dismissed by the Appellate Tribunal with the observations that "department had not furnished the required information to justify late filing of appeal and was directed to do so in the last hearing; appeal was not admitted as the department had failed to justify ,the long delay of about 4 months"---Review application mostly revolved around the sole ground that the "file of the case was roaming from one table to the other and from one section to the other, different sections/ divisions of the Collectorates and for this reason, the appeal could not be filed in time and also for the reason that the first Appellate Authority had not accepted the appeal in toto but with split judgment with ultimate result of its remand to the original forum; the same was not ascertainable as whether the same be simultaneously heard by the original authority and the Appellate Tribunal as well or otherwise causing the delay in filing the appeal---Appellate Tribunal could review any order within three years from the date of its passing, thus the petition was well in time---When the question of pecuniary matter was involved then, the delay could be condoned in order to avoid loss to the public exchequer---Validity---Contention that file was to move from one. table to another and from one section to other and that"s why it caused a delay in filing the appeal, carried no legal excuse, sufficient_ cause or a plausible reason to justify the delay of 7 months---Visible deliberate attempt "beyond the obvious" was floating on the face of the record for an intentional late filing the appeal to extend undue concession to the respondent and accommodate him on one hand and to save its own skin on the other hand by having" filed the appeal, so that it may not be said that the department did not file any appeal, which contention coupled with questionable conduct in dealing with the matter could not be considered as a genuine legal ground, sufficient cause or even certain reason of compelling circumstances beyond the reach and approach of the department---Review petition for revival of appeal and prayer for the condonation of delay of 5 months and 25 days in filing appeal could neither be acceded to nor the prayer could be granted. PLD 1982 Kar. 695 ref. Collector of Customs, Peshawar v. Fazal Hussain and others 2001 SCMR 1630 and 1981 SCMR 37 rel.

----S.194---Appeal to Appellate Tribunal---Limitation---Condonation of delay---Government could not be treated differently from .ordinary litigants in respect of limitation---Government enjoys unusual facilities for preparation and conduct of its case and its resources are much larger than those possessed by the ordinary litigants. Deputy Director of Food, Lahore Region, Lahore v. (i) Syed Safdar Hussain Shah (C.P.L.A. No.62 of 1977) (ii) Abdul Salam Qureshi (C.P.L.A. No. 63 of 1977) (iii) Khalid Farooq (C.P.L.A. No.64 of 1977; 1979 SCMR 45; Pakistan v. Firm Loahi House PLD 1968 Lah. 923 and Chairman Pak Railways through Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javed Warsi PLD 2003 SC 6 rel.

----S. 194-B(2)---Orders of the Appellate Tribunal---Rectification of mistake---Review application---Keeping in view the meaning of word "mistake" in its common parlance and in its true legal sense coupled with mistake of facts" and mistake of law" in its broad based spectrum, the department/petitioner was yet to pull the curtain down, to place its contention to be on track in line with S.194-B(2) of the Customs Act, 1969 as none of the meanings either in plain words as .mistake or technically as mistake of facts or even legally as mistake of law could be stretched favourably by the petitioner S.194-B(2) of the Customs Act, 1969, thus would not come to the rescue of the department/petitioner nor would cover the deliberate omission of the department for the delayed filing of appeal which despite ample opportunities being extended to the department could never be justified except with the sole uncalled for contention that being an issue related to the department, this was to be processed by various sections and frequent movement of file from one table to the other and so on, a time consuming job causing the delay---Department/petitioner, failed to establish the mistake committed by the Appellate Tribunal. Black"s Law Dictionary (sixth Edition) p.1001; Mian Rafiq Sehgul and others v. Bank of Credit and Commerce International (Overseas Limited) and others PLD 1997 SC 865 and Spin Bacha and 9 others v. Mst. Neelam and others 2003 YLR 1306 rel.

----S. 194-B(2)---Orders of the Appellate Tribunal---Review whether continuation of appeal---Order was passed on 17-4-2001 and almost 8 years had lapsed confirming the legal status of the order irrespective of the fact that the review was filed on 15-3-2004 controerting the legality and propriety of the order, as in such like cases, review could not be considered the continuation of an appeal. PLD 1981 SC 94 rel.

----S. 194-B(2)---Orders of the Appellate Tribunal---Review---Rectification of mistake---Theory of continuation of trial or proceedings was not conclusive of existence of a right to make a previous judgment open for scrutiny whether by higher. Court in the form of appeal or the same Court in the form of review and when such legal aspect of the matter was juxtaposed with the judicial pronouncements of the superior Courts, then the very review petition so filed stands nowhere, except with a razor thin marginal scope of review, when there was any "mistake" as described by the statute, floating on the face of the record and could be rectified in terms of S.194-B(2) of the Customs Act, 1969 which was not so in the present case.

----S. 194-B(2)---Orders of the Appellate Tribunal---Pecuniary matter---Limitation---Condonation of delay---Contention that "any petition which involved implications of pecuniary matter with ultimate loss to public exchequer, the delay could be condoned, had got no legal sense in it, rather the Government functionaries should have been much more vigilant in such like cases where the public revenue was involved but what appeared was that on one hand the department would favour the party by withholding the file, causing delay in filing the appeal and on the expiry of prescribed period of time would rush to file it so as to save their skin which amount, a loss to the public revenue, even was recoverable from all those responsible for such a delay in filing the appeal. PLD 2003 SC 6 rel.

----S. 194-B(2)---Orders of the Appellate Tribunal-Delay in filing of appeal-Review application without sufficient cause or cogent reasons---Validity---Department had. not been able to forward any sufficient cause or cogent reasons to justify the delay of almost 6 months in filing the appeal---Department also had not been able to establish the hotly contested version of "mistake" either in actual, factual or legal sense, rather a futile exercise on their part with no gain except to score its efficiency and that too by putting an iron paw in a velvet glove-Order as an admitted fact called for no rectification as envisaged by S.194-B(2) of the Customs Act, 1969---Order being proper, legal, with no mistake on the face of the record, with no illegality, impropriety and irregularity, called for no interference and the review petition being devoid of material substance stood dismissed. Hashim Raza, Muhammad Zahid, Superintendent and Muhammad Aqleem Khan, Inspector Customs for the Petitioner. Nemo for Respondent No.1. Asad Jamal Firdous Khan, Manager (Commercial) of the Respondent-Unit for Respondent No.2. Date of hearing: 12th May, 2009.

This Review Petition filed by the Collector of Customs, Peshawar is against the order dated 17-4-2001 passed by this Tribunal in Customs Appeal No.7(217)ATIB/98, whereby the same was not admitted for hearing being time-barred. 2. Facts in brief as reflected from the memo. of appeal are that Messrs Plasto Bag (Pvt.) Limited, Hattar, imported polyester chips POL greate from Korea and warehoused the same during the month of May, June and July, 1994. The goods were classifiable under PCT Heading 3907.9900 attracting customs duty @ 25% and sales tax in terms of Notification No.S.R.O.487(I)/1994 dated 9-6-1994, amended vide Notification No. S. R. O.1117(I)/94 dated 17-11-1994. The imported items were of the nature of frequent fluctuating market value, as such, the item was deleted from I.T.P. manual and was decided to be assessed on the basis of physical import on fixed normal price. The party instead of clearing the warehoused goods on normal price fixed by the Customs Valuation, Karachi under section 25 of the Customs Act, 1969, cleared the same on the basis of deleted ITP value, hence a clear violation of section 32(A) ibid. The fact was brought to the notice of the department by the Director of Revenue Receipt Audit, Lahore vide audit observation Nos.1, 2 and 3 dated 27-6-1995 in which it was brought to the notice of the department that the unit has committed short payment-of amount of Rs.30,75,476. Since the party was made aware of the fact that they caused short payment on the basis of knowledge which was false in material particulars therefore, they were required to pay the short paid amount vide Demand Notice C.No.V-Cus(BWH)499 dated 1-7-1995 and notice of even number dated 29-8-1995, so as being done normally in routine practice, at the first instance and the party was directed to pay the short paid amount but on reluctance on their part, the respondent i.e. Messrs Plasto Bag (Pvt.) Ltd., Hattar was served ,,with a show-cause notice. In response to the said show-cause notice, the respondent asked for the supply of evidence forming base of the show-cause notice. Since the valuation advice was not readily available with the office, therefore, the same was procured from Customs Valuation, Karachi which process consumed some time and in the meanwhile, proper show-cause notice was served upon the unit vide this office C. No. V-Cus(BEH) Audit/84/95/2075 dated 29-10-1995, with further direction to collect the Valuation Advice from the quarters concerned, if needed. 3. The Collector (Appeals), Customs, Central Excise and Sales Tax, Rawalpindi while issuing the Order-in-Appeal (para-9) has partly allowed the appeal against the Order-in-Original No.24 of 1998 dated 21-3-1998 passed by the Deputy Collector of Customs and Central Excise, Haripur to the extent of the portion of goods for which show cause was issued after a lapse of six months. Rest of the Bill(s) of Entry were sent back to the original authority with the direction to assess the value of the goods under section 25 of the Customs Act, 1969, read with the Customs General Order (CGO) No.1 of 1997 on the basis of actual import of identical goods from the same country of origin, brand, time, party and commercial levy after providing full opportunity of hearing to the appellants besides a number of other grounds, forming part of the memo. of appeal with the following prayers:--

(a) The Collector (Appeals), Customs, Central Excise and Sales Tax, Northern Zone, Rawalpindi erred in declaring that unless proper show-cause notice is issued within prescribed period, therefore, the demand against them is time-barred. The above particular order may kindly be vacated.

(b) The case has been decided ex parte by the Collector (Appeals) Rawalpindi with the reason that the department has not represented the case. It is stated that no hearing notice was received in this case by the department, therefore, this Government appeal may be accepted although time-barred under section 194-A(5) of the Customs Act, 1969.

(c) Since the file of the case passed from table to table of the different sections/Circles/Divisions of the Collectorate and as the appeal was not totally accepted by the Collector (Appeals) Rawalpindi and the case was remanded rack to the original" authority. Therefore, it was not readily ascertainable whether the same case can be simultaneously heard by the original authority and the Tribunal which caused some delay, which may kindly be condoned. 4. It is however, worth mentioning that the Order-in-Original is not available on appeal file, the prime duty of the appellant i.e. the Collector " of Customs, Central Excise and Sales Tax for its placement on appeal file whereas the Order-in-Appeal No.2324-2327 of 1998 decided by Rana Muhammad Akhtar, Collector of Customs, Central Excise and Sales Tax (Appeals), Rawalpindi dated 2-5-1998 is on appeal file, the concluding paragraph Nos.9 and 10 of which is reproduced in verbatim for the convenience of perusal:--

"9. The upshot of above discussion is that I partly accept the appeal and set aside, the order passed by the Deputy Collector of Customs, Haripur for such portion of goods for which notice to show cause was issued after lapse of six months. So far as rest of bills of entry are concerned, I remand back the case to the original authority with the direction to assess the value of goods under section 25 of the Customs Act, 1969 read with Customs General Order 1 of 1981 on the basis of evidence of factual import of identical goods from the same country of origin, brand, time period and commercial level after providing full opportunity of hearing to the appellant.

10. This order shall apply to Appeal No.V(15)P/1363/98, V(15)P/1365/98 and V(15)P/1366/98 filed by the same appellant against Order-in-Original No.30 of 1998 dated 27-3-1998, 34 of 1998 dated 2-4-1998 and 40 of 1998 dated 6-4-1998 passed by the Deputy . Collector of Customs, Central Excise, Haripur having identical facts and merits." 5. The appeal filed by the Collector of Customs, against Messrs Plasto Bag (Pvt.) Ltd., (the one in hand under review) against the Order-in-Appeal No.2324-2327 of 1998 dated 9-5-1998 which (appeal) was filed on 4-11-1998, beyond the prescribed period of 60 days with an apparent bar of time by 6 months 25 days (i.e. 205 days) and was fixed for 12-12-1998 which day none was present for the appellant whereas," the respondent was represented by Mian Abdul Ghafar, Advocate and so was the state of affairs on the next date", fixed for hearing i.e. 25-1-1999. It was on 6-2-1999 when Haider Ali Shah, Deputy Collector, SKM Kiani and Gul Muhammad, Deputy Superintendents put up appearance on behalf of the appellant while Mian Abdul Ghaffar and Rana Muhammad Akram Raja, Advocate on behalf of the respondent No.2, which day, it was ordered that. Ghulam Mustafa, Assistant Collector, Hazara shall appear in person on 20-2-1999 at Lahore to explain before the Tribunal as to under which authority he had filed the appeal. 6. On 20-2-1999, Masud Kiani, DR and Gul Muhammad, Deputy Superintendent were present on behalf of the appellant whereas the fore mentioned counsel representing the respondent also were there but Ghulam Muhammad, Assistant Collector, Hazara did not appear before the Tribunal, therefore, it was Mian Qamaruddin, Member (Judicial) and Mr. Muhammad Aslam, Member (Technical) who because of the pathetic response of the Assistant Collector, Hazara observed as under:--

"It is highly unfortunate that the Assistant Collector has not turned up in spite of a clear notice thereto and the directions given at the time of hearing on 6-2-1999. We take a very strong exception to this act of defiance. It appears that the department is not interested in defending the case, which involves a revenue of Rs.31,00,000. The Tribunal shall like that the Collector Customs, Peshawar may either appear personally with the relevant record or depute his Additional Collector and the Assistant Collector to attend the hearing at Lahore on 6-3-1999." 7. On the date so fixed (i.e. 6-3-1999), the learned Member (Technical) on recent transfer, had assumed the charge on 1-3-1999 thus, the hearing was adjourned to 11-3-1999 which day Mr. Adil Hussain, Manager on behalf of the respondent along with Muhammad Akram Raja, Advocate were present whereas Ghulam Mustafa, Assistant Collector" also had put personal" appearance along with .Departmental Representative but that day the learned counsel for the respondent made a request for adjournment on the grounds that senior counsel (Mian Abdul Ghaffar) was busy before the High Court, thus hearing was adjourned to 14-4-1999. On the date fixed, Mr. Muhammad Akram Raja. Advocate, appeared for the respondent whereas SKM Kiani, Deputy Superintendent for the appellant. Arguments were heard and the judgment was reserved by Mian Qamaruddin Ahmad, Member (Judicial) and Mr. Falak Sher, Member (Technical). After hearing the arguments on 14-4-1999 when the order could not be recorded and announced, again, fresh notices were issued to the parties for 2-10-2000, but despite notices none was found present for the appellant while Sardar Muhammad Ishaq, Advocate put up appearance for the respondent and the case was ordered to be re-listed at Islamabad when Islamabad Bench would, become functional with further directions that notice(s) accordingly be issued. Subsequently, the appeal, however, was entrusted to the Peshawar Bench which issued notice(s) to the parties for 13-11-2000 and 11-12-2000 but no one was present for the appellant and on the next date fixed (i.e. 17-4-2001), this Tribunal comprising of Mr. Raj Muhammad Khan, Member (Judicial) and Mr. Muhammad Sulaiman, Member (Technical) dismissed the appeal, vide their order, reproduced, hereunder:--

"Mr. SKM Kiani, DS/DR for the appellants. Mr. Noman Akram Raja, Barrister-at-Law for respondent.

Arguments heard. The Department has not furnished the required information to justify late filing of the appeal. They were directed to do so in the last hearing. In view of the above and various judgments of the superior Courts filed by the respondents, the appeal is not admitted as the department has failed to justify the long delay of about 4 months." 8. Being aggrieved of the above (order dated 17-4-2001), the department i.e. the Collector of Customs of the Customs Collectorate, Peshawar has filed this Review Petition (inter alia) on the following grounds: --

Grounds of facts:

(i) The party cleared the goods on the basis of deleted ITP issued under section 15 of Customs Act, 1969, which was quite in the knowledge of the unit. Moreover, the fact was brought to the notice of the unit within the prescribed period of 6 months. It is customary in this Division and in a case of mutual understanding that the party is in the first instance informed about the short assessment if any and directed to pay. It was only on their demand that they were at the first instance directed and after-wards managed to be procured for them the evidence of valuation advice. It is further added that the said "valuation advices are issued on the mutual understanding between the trade representatives and the department as the price of imported item was frequently and abnormally fluctuating in the market. As such it was not possible to produce all the evidences on the basis of which the prices are fixed. However, it is quite assured that the prices are fixed by the mutual consent of the trade circle and the department. As such it has normal legal value.

On Law:

(i) It is reason to believe that the unit made declaration on bill of entry on the basis of deleted ITP and as such, were guilty of making .false statement in material particular. They were made aware of the omission within the prescribed period of 6 months and have under-valued the imported goods as the contrary imports during that period fetched that value that was mutually consented in the trade circle and on the basis of which the valuation advices were issued for the period under reference. Hence, it is not a case of inadvertent error or misconception as claimed by the unit to be dealt with under subsection 3 of section 32 of the Customs Act, 1969 but a case of particular knowledge and false statement and as such their case is covered under section 32(2). Since they had the knowledge which is the necessary ingredient, therefore, their case is to be covered by the above said section 32(2).

(ii) It may further be added that the customs duty", short levied cannot be avoided on procedural irregularity as has been laid down vide PLD 1982 Kar. 695.

(iii) They were provided with the evidence of value and ample opportunity to explain or rebut the same through a proper notice and afterward on asking proper show-cause notice. Thus, the demand was within the prescribed period. The worthy Collector (Appeals) Rawalpindi has relied upon foreign judgment of India and has failed to quote any Pakistani Court"s judgment to show that unless the demand is not tagged with the show cause, then the same is not a proper show-cause notice issued in term of section 32 of the Customs Act, 1969.

(iv) It may further be stated that the Superintendents/Principal Appraisers have been assigned the function of appropriate officer for the purpose of provision of Customs Act, 1969 the S.R.O.56(1)/93 dated 19-1-1993 for which page 636 of Customs Rules and Notification 1998 addition as published by Mr. Najeeb A Chaudhry may kindly be consulted.

(a) The Collector (Appeals), Customs, Central Excise and Sales Tax, Northern Zone, Rawalpindi erred in declaring that unless proper show-cause notice is issued within the prescribed period, therefore, the demand against them is time-barred. The above particular order may kindly be vacated.

(b) The case has been decided ex parte by the Collector (Appeals) Rawalpindi with the reason that the department has not represented the case. It is stated that no hearing notice was received in this case by the department, therefore, this Government appeal may be accepted although time-barred under section 194-A(5) of the Customs Act, 1969.

(c) Since the file of the case passed from table to table of the different sections/Circles/Divisions of the Collectorate and as the appeal was not totally accepted by the Collector (Appeals) Rawalpindi and the case was remanded back to the original authority, therefore, it was not readily ascertainable whether the same case can be simultaneously heard by the original authority and the Tribunal which caused some delay, which may kindly be condoned. 9. We have anxiously heard the arguments of both the parties at length in different hearings and carefully have examined the record of the case, The main thrust of the arguments advanced before this Tribunal by the petitioner i.e. Collector of Customs, Peshawar, mostly revolves around the sole ground that the "file of the case in hand was roaming from one table to the other and from one section to the other, different sections/divisions of the Collectorate and for this reason, the appeal could not be filed in time and also for the reason that the Collector (Appeals) of Customs, Central Excise and Sales Tax Northern Zone at Rawalpindi had not accepted in toto but was with split judgment with ultimate result of its remand to the original forum, therefore, the same was not ascertainable as whether the same be simultaneously heard by the original authority and the Tribunal as well or otherwise causing the instant delay in filing the appeal" with a prayer for the condonation of the delay. It was also argued that the Tribunal in terms of section 194-B(2) of the Customs Act, 1969 could review any impugned order within three years from the date of its passing thus, the petition is well in time and lastly that when the question of pecuniary matter is involved then, the delay can be condoned in order to avoid loss to the public exchequer. Learned counsel for the respondent, however, refuted these arguments and submitted that the department being Government functionary should not be "treated differently rather on equal footing and at par with the other party. In support, he relied upon a number of judicial pronouncements of the superior Courts and submitted. that the grounds for filing a time-barred appeal, as agitated, by the department has got no substantial value nor is covered by any legal or logical sense, to get the delay condoned. It is to be kept in view that against Order-in-Appeal passed on 9-5-1998, by Collector (Appeals), the appeal under discussion was filed by the Collector (Customs), Peshawar with a delay of 6 months and 25 days and that too, was so poorly perused that it was dismissed on 17-4-2001 even for want of appearance of the department and justification to get the delay of 6 months and 25 days condoned,, against which the review in hand was filed on 15-3-2004, again almost after 3 years. 10. So far as the contention raised by the counsel -for the petitioner seeking review of this Tribunal"s, impugned order dated 17-4-2001 on the ground that the file was to move from one table to another and from. one section to the other and that"s why it caused a delay in filing the appeal before this Tribunal, is concerned, it carries no legal excuse, sufficient cause or a plausible reason to justify the delay of (more or less) 7 months rather, if viewed from the other side, visible deliberate attempt "beyond the obvious" is floating on the face of the record for an intentional late filing the appeal to extend undue concession" to the respondent and accommodate him on one hand and to save its own skin on the other hand by having filed the appeal, so that it may not be said that the department did not file any appeal, which contention coupled with questionable conduct in dealing with the matter could not be considered as a genuine legal ground, sufficient cause or even certain reason of compelling circumstances beyond the reach and approach of the department. In this connection reference could be made to the case of Collector of Customs, Peshawar v. Fazal Hussain and others 2001 SCMR 1630 whereby Honourable Chief Justice Mr. Justice Muhammad Bashir Jehangiri, Mr. Justice Muhammad Arif and Mr. Justice Mian Muhammad Ajmal of the Supreme Court of Pakistan, have observed, that:-- "Delay that had occurred in filing petition was motivated, mala fide and had to be checked because in almost all Government cases such pleas were always raised before the Supreme Court for condonation of delay which the functionaries do cause intentionally with ulterior motives and then try to save their skin by taking such pleas." In another judgment of the Supreme Court of Pakistan 1981 SCMR 37, it was held by Mr. Justice Durab Patel and Mr. Justice Naseem Hassan Shah in the case of Commissioner of Income Tax v. Raees Pir Ahmad Khan that:--

"Time said to have been spent during which various authorities were examining the matter with a view to decide whether an appeal should or should not be filed, cannot be excused." The august Supreme Court of Pakistan has repeatedly held that so far as limitation is concerned, Government cannot be treated differently from ordinary litigants. In fact the Government enjoys un-usual facilities for the preparation and conduct of its case and its resources are much larger than those possessed by ordinary litigants and similar is the opinion expressed by the august Supreme Court of Pakistan in the cases of Deputy Director of Food, Lahore Region, Lahore v. (i) Syed Safdar Hussain Shah C.P.L.A. No.62 of 1977 (ii) Abdul Salam Qureshi C.P. L. C.P.L.A. No.63 of 1977 (iii) Khalid Farooq C. P. L. C.P.L.A. No.64 of 1977 reported as 1979 SCMR 45 whereby it is observed, that:--

"Mere fact of the petition having got delayed because of its having remained under examination at different departmental levels not a ground for extension of period of limitation. Each day of delay also not properly and sufficiently explained. Condonation of delay refused in the circumstances." Similar view being adopted by the Honourable Lahore High Court, Lahore in the case of Pakistan v. Firm Loahi House PLD 1968 Lah. 923 Mr. Justice Attaullah Sajjad was expressed as under:--

"delay due to consideration of matter under dispute at various Government departments---Condonation on such grounds would amount to putting a premium of departmental delays." In yet another case before the Full Bench of the august Supreme Court of Pakistan comprising of Honourable Chief Justice Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice Khalilur Rehman Ramday and Mr, Justice Faqir Muhammad Khokhar, in the case of Chairman Pak Railways through Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javed Warsi (Civil Petition No.775 of 2001 dated 16th October, 2002), reported as PLD 2003 SC 6, it was observed that:--

"No preferential treatment is to be afforded to a Government department qua the civil litigation and Supreme Court declined to condone the delay and took serious note of the conduct of the Government officials and directed that such officers should be penalized because on account of their such conduct the Government sustained considerable loss which ultimately had to be borne by the public." 11. Thus keeping in view the contention advanced by the Collector of Customs in his Review Petition for the revival of their appeal and their prayer for the condonation of delay of 5 months and 25 days in filing the appeal in the light of the fore-mentioned judgments of superior Courts and a considerable good number of other verdicts of the superior forums could neither be acceded to nor the prayer could be granted. 12. So far as the next contention raised with regard to the powers of the Appellate Tribunal in view of section 194-B(2) of the Customs Act, 1969 for the review of an order dated 17-4-2001 passed by this Tribunal, is concerned, also on the face of it, is of no avail to the petitioner (i.e. the Collector of Customs), Section 194(B) of the Customs Act, 1969 is reproduced hereinunder in extenso for the sake of convenience:--

"Section 194-B: (1)

(2) The Appellate Tribunal may, at any time within three years from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal:

Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this subsection, unless the Appellate Tribunal has given notice to the party of its intention to do so and has allowed a reasonable opportunity of being heard.

(3) ------------------------- (4) ------------------------- (5) -------------------------:

13. The plain reading of section 194-B ibid would reflect in clear words the very intent that any ""mistake" in an order passed by the Tribunal could be amended for purpose of rectification of the error within three years from the date of passing the order desired for its correction, but this very limited scope of review with a particular and specific line of direction just for the rectification of any mistake and error, is stretched in a away as if any (legal) order/judgment passed by a competent forum could be revisited and shaped-up according to the desires of the department under the garb of rectification of a mistake which is but a mistaken view taken by the petitioner. Meanings of the word "mistake" in its true legal sense and also in its common parlance, according to Black"s Law Dictionary (Sixth Edition at page 1001), is reproduced in verbatim as under:---

Mistake:

Some unintentional act, omission or error arising from ignorance, surprise, imposition or misplaced confidence---A state of mind not in accord with reality---A mistake exists when a person under some erroneous conviction of law or fact, does or omits to do some act which but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence.

Mistake of Fact:

Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of a person making the mistake and consisting in,

(1) an unconscious ignorance, or forgetfulness of a fact, past or present, material to the contract; or

(2) belief in the present existence of a thing material to the contract which does not exist or in the past existence of such a thing which has not existed.

Mistake of Law:

A mistake of law happens when a party, having" full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference arising from an imperfect or incorrect exercise of the judgment, upon the facts and necessarily presupposes that the person forming it is in full possession of facts. The, facts precede the law and the true and false opinion alike imply an acquaintance with them. The one is the result of correct application of legal principles which every man is presumed to know and is called, "Law", and the other the result of a faulty application and called a. mistake of law. 14. Keeping the afore-mentioned meanings of the word "mistake" in its common parlance and in its true legal sense coupled with i.e., mistake of facts" and mistake of law" in its broad based spectrum, the department/petitioner is yet to pull the curtain down, to place" its contention within it to be on track in line with section 194-B(2) of the Customs Act, 1969 as none of the meanings either in plain words as mistake or technically as mistake of facts or even legally as mistake of law could be stretched favourably by the petitioner. Section 194-B(2) ibid, thus would not come to the rescue of the department/petitioner nor would cover the deliberate omission of the department for the delayed filing of their appeal which despite ample opportunities being extended to the department could never be justified except with the sole uncalled for contention that being an issue related to the department, thus was to be processed by various sections and frequent movement of file from .one table to the other and so on, a time consuming job causing the delay but this contention has already been discarded in the preceding portion of this judgment and now we have to see as to what mistake was committed by the Tribunal in the impugned order dated 17-4-2001, which the department/petitioner has failed to establish and that way in view of full Bench judgment of the august Supreme Court of Pakistan comprising of Mr. Justice Saeed-uz-Zaman Siddiqui, Mr. Justice Mukhtar Ahmad Junejo and Mr. Justice Khalilur Rehman Ramday delivered in the case of Mian Rafiq Sehgul and others v. Bank of Credit and Commerce International (Overseas Limited) and others bearing Civil Review Petitions Nos.44 to 46 of 1996 (PLD 1997 SC 865) it was observed that:--

"If a Court has taken a conscious or deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on consideration is possible (and that way) only such errors in the judgment would justify a review which are self evident, found floating on the surface are discoverable without much determinant and have a material bearing on the final result of the case." In yet another case Spin Bacha and 9 others v. Mst"l Neelam and others (Review Petition No.1400/2000 with Civil Miscellaneous No.20 of 2000 dated 5-11-2002) reported as 2003 YLR 1306 (Peshawar) Honourable Chief Justice Mr. Justice Mian Shakirullah Jan and Mr. Justice Qazi Ihsanullah of the Peshawar High Court have observed that:---

"Arguments of the petitioner in support of their Review Petition had already been discussed by the Court in judgment under review. No error apparent from the face of the record was pointed out nor any other sufficient reasons were advanced to justify review of the petition and the same was dismissed in the circumstances." 15. If looked at, from yet another angle which indeed should not go un-accounted for is that the impugned order was passed on 17-4-2001 and by now almost 8 years have lapsed confirming the legal status of the said order irrespective of the fact that the review in hand was filed on 15-3-2004 controverting the legality and propriety of the said order, as in such like cases, review could not be considered the continuation of an appeal in view of PLD 1981 SC 94, whereby Mr. Justice Karam Ilahi Chohan, Mr. Justice Muhammad Afzal Zullah and Mr. Justice Nasim Hassan Shah were of the view that:--

"Right of review is a substantive right and always creation of a statute, on the subject but the assumption that a review is continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall" Again, the theory of continuation of trial or proceedings is not conclusive of the existence of a right to make a previous judgment open for statute whether by higher Court in the form of appeal or the same Court in the form of review and when this legal aspect of the matter is juxtaposed with the judicial pronouncements of the superior Courts, then the very review petition so filed stands nowhere, except With a razor thin marginal scope of review, when there is any "mistake" as described by the statute, floating, on the face of the record and could be rectified in terms of section 194-B(2) of the Customs Act, 1969, which is not so in the case in hand. 16. The third contention submitted for consideration by the learned Collector of Customs was that "any petition which involves implications of pecuniary matter with ultimate loss to the public exchequer, the delay (irrespective of its quantum) therein, could be condoned, again is certain narration on the part of the Collector of Customs which has got no legal sense in it, rather he and other Government functionaries should have been much more vigilant in such like cases where the public revenue is involved but what appears to us, is that on one hand the department would favour the party (i.e. tax evaders) by withholding the file, causing delay in filing the appeal and on the expiry of prescribed period of time would rush to file it (the appeal) so as to save their skin which amount, a loss to the public revenue, even is recoverable from all those responsible for such a delay in filing the appeal in view of PLD 2003 SC 6. 17. The ultimate conclusion which could be arrived at is that the Collector of Customs, Peshawar has not been able to forward any sufficient cause or cogent reasons to justify the delay of almost 6 months in filing the appeal. Moreover, the department/petitioner also has not been able to establish the hotly contested version of "mistake" either in actual, factual or legal sense, rather a futile exercise on their part with no gain except to score its efficiency and that too by putting an iron paw in a velvet glove. Thus, we are firm in holding that impugned order as an admitted fact calls for no rectification as envisaged by section 194-B(2) of the Customs Act, 1969. As such, the impugned order being proper, legal, with no mistake on the face of the record, with no illegality, impropriety and irregularity, in the circumstances calls for no interference and the instant Review Petition being devoid of material substance stands accordingly dismissed. Attested copy of this judgment be dispatched to the concerned parties within ten (10) days from today. C.M.A.110/Tax (Trib.) Review rejected.

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