Munib Akhtar, J.—These two appeals arise under the Customs Act, 1969 (“Act”) and raise the same questions of law, on facts that can broadly be regarded as similar. The appeals are against two separate judgments of the High Court. In CA 24-Q of 2014 (hereinafter the “first appeal”) a writ petition filed by the appellant (hereinafter the “first appellant”) was dismissed by judgment dated 20.09.2010 (hereinafter the “first judgment”). In the other matter, CA 26-Q of 2018 (hereinafter the “second appeal”), a tax reference filed by the department was allowed by means of the judgment dated 15.07.2013 (hereinafter the “second judgment”, the appellant being the “second appellant”). Leave was granted in the first appeal vide order dated 30.09.2014. In the other matter leave was granted vide order dated 28.11.2018 on the ground, inter alia, that it involved the same questions as in the first appeal.

2.    The facts can be stated briefly. In the first appeal, the truck of the first appellant was confiscated on the ground that it was carrying smuggled goods. In the second appeal, a coach operated by the second appellant (and used to transport goods and passengers) was confiscated on the same ground. The charge of such smuggling stands established for present purposes in each case. The case of each appellant was that his conveyance was merely transporting goods (and/or passengers), with which the appellant had no concern whatsoever. Insofar as the conveyances were concerned, each appellant was given the option of their release on payment of a redemption fine under s. 181 of the Act. That provision is as follows:

“181. Option to pay fine in lieu of confiscated goods.- Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit:

Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given:

Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force.

Explanation.- Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods.”

In exercise of the powers granted under the two provisos, the Board (i.e., the Federal Board of Revenue) has issued notifications from time to time. The one relevant for present purposes was SRO 574(I)/2005 dated 06.06.2005 (“SRO 574”) whereby (as presently relevant) the redemption fine for release of conveyances confiscated in circumstances as those of the appellants’ was 30%. This option was, as noted, given to the appellants. The first appellant filed a petition in the High Court challenging SRO 574 as being ultra vires the Act. It may be noted that at the same time departmental proceedings regarding the confiscation of the truck, and option to pay the redemption fine, also reached the High Court by way of a tax reference filed by the first appellant. The learned High Court, by means of the first judgment whereby a number of matters were decided, dismissed the petition. However, insofar as the tax reference was concerned the High Court was pleased to remand the matter (along with those in several other tax references) for fresh determination in light of the observations made in the judgment. The first appellant approached this Court against the dismissal of his writ petition (but not as regards the disposal of his tax reference) and was granted leave to appeal by means of the order dated 30.09.2014.

3.    The matter of the second appellant arose, as noted, out of a tax reference. The learned Appellate Tribunal decided in favor of the second appellant and the tax reference, filed by the department, was allowed by means of the second judgment. That led to the second appellant approaching this Court where leave to appeal was granted in terms as stated above.

4.    The case put forward by learned counsel for the appellants was that SRO 574 was ultra vires s. 223 of the Act. This was so because it unlawfully interfered with the discretion granted by the main part of s. 181 to the concerned officer to “give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit”. The second proviso made the notification issued by the FBR (i.e., SRO 574) binding thereby wholly depriving the officer of the discretion conferred on him. This, according to learned counsel, could not be done by the FBR by reason of s. 223, which may now be set out:

“223. Officers of Customs to follow Board’s orders, etc.- All officers of customs and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board:

Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officer of customs in the exercise of their quasi-judicial functions.”

Reliance was placed on the proviso to this section, it being contended that the order made by the officer concerned under s. 181 was in exercise of quasi-judicial functions. The learned High Court in the first judgment, while holding that the determination of the concerned officer under s. 181 was of a quasi-judicial nature nonetheless held that SRO 574 (and its predecessor) were not ultra vires the Act. The petition filed by the first appellant was accordingly dismissed. In the other matter the learned High Court allowed the tax reference filed by the department by relying on an unreported judgment of this Court (which is, unfortunately, only partially identified (Said Gul v Collector of Customs and others) and which could not be traced here).

5.    We have heard learned counsel as above and considered the provisions involved. In our view, the appeals must fail for the following reasons. Firstly, and with respect to the learned High Court, the order made by the concerned officer under s. 181 is not in exercise of quasi-judicial functions. It is in exercise of a statutory power, and is in the nature of an administrative or executive order. Secondly, if the submissions made by learned counsel are accepted that would in effect reduce the second proviso of s. 181 to redundancy. This would be so because any exercise of the statutory power thereby conferred would “interfere” with the power conferred on the officer of customs under the main part. The result would be that the power under the second proviso could never be exercised, i.e., would be made redundant. It is well settled that redundancy is not to be lightly imputed, and an interpretation that yields such a result is to be avoided if at all possible. Yet, that would precisely be the effect of the case put forward by the appellants. Thirdly, learned counsel have, with respect, misunderstood s. 223. This section is not exclusive to the Act; it is to be found in all fiscal statutes, cast in nearly identical terms. It confers a broad and general power, of an administrative and executive nature, on the FBR (in its capacity as the body at apex of the fiscal hierarchy) to supervise, control and guide the tax authorities in the discharge of their duties and functions under the tax laws. However, some of those powers and duties are of a quasi-judicial nature such as, e.g., those conferred on officers holding an appellate post (Collector (Appeals)) or exercising powers in revision. It would obviously be wrong in principle (and contrary to the well established jurisprudence of this Court and the High Courts) for the FBR to be in a position to influence or affect the proceedings of such authorities. Hence, the proviso. It is not to be regarded as a standalone provision; it makes sense only when read along with the main part of s. 223. Now, the power exercised by the FBR in terms of the provisos to s. 181 is not an exercise of the general statutory power conferred by s. 223. That is, a notification issued under s. 181 is not some general administrative or executive order, instruction or direction given by the FBR. It is rather the exercise of a specific and separate statutory power conferred under a different provision for a distinct purpose. That purpose has been considered and highlighted by the learned High Court in the first judgment. Sections 181 and 223 are separate and distinct, one from the other. The effect of the submissions made by learned counsel would however be to conflate and merge the two, one into the other. In our view, that would be to incorrectly appreciate the statutory scheme envisaged by the Act, and a misunderstanding and misapplication of the two sections. SRO 574 cannot therefore be regarded as ultra vires s. 223.

6.    For the foregoing reasons it was announced in Court at the conclusion of the hearing that the appeals stood dismissed.

Sd/-       

Umar Ata Bandial, J

I arrive at the same conclusion for different reasons. Hence I have attached a separate note elaborating my reasons for arriving at the final conclusion.

Sd/-       

Syed Mansoor Ali Shah, J

Sd/-       

Munib Akhtar, J