ALIYAAN TRADERS, KARACHI VS DEPUTY COLLECTOR OF CUSTOMS, KARACHI, 2012 PTD-CUSTOMS-APPELLATE-TRIBUNAL-KARACHI 1917 (2012)

(a) Customs Act (IV of 1969)---

---S. 25---Customs Rules, 2001, Rr.107 & 109---Determination of customs value of goods---Provisions of S.25 of the Customs Act, 1969, were to be followed in sequential manner barring certain exceptional cases where massive group under-invoices were rampant---Resort to subsequent method was not permissible without exhausting the sequence indicated in S.25 of the Customs Act, 1969 as same would annihilate and terminate the spirit and essence of the transaction value, which in the first instance had to be established as colourable and tainted---Mere insertion of word "may" or "may not" in place of "are required to" in subsection (15) of S.25 of the Customs Act, 1969, would not give unbridled and unfettered authority to customs administration to play havoc with the provisions of S.25, thereby making them ⁱneffective and redundant---Discretion had to be exercised within limits based on reason, rationale and fairplay---Section 25(1) of the Customs Act, 1969 specifically provided that the customs value of the imported goods, subject to the provisions of S.25 and Rules would be the transaction value i.e. the price actually paid or payable for the goods, when sold for export to Pakistan---Provisions of S.25(4) of Customs Act, 1969 contained primary method of valuation; and in the first instance the primary method of valuation was required to be adopted in each case of the valuation of the imported consignment which was mandatory---Such was a very important requirement of law that before resorting to the method provided in subsection (5) of S.25 of the Customs Act, 1969, the Customs Officials would make an exercise in accordance with the provisions contained in subsections (I) to (4) of S.25---If thereafter officials would find that the customs value of the imported goods could not be determined under the provisions of sub-section (1) they would resort to the method provided in subsection (5) and not otherwise---Department had failed to discharge the onus of establishing that the price calculated by the importers of the imported goods were not the transaction value within the meaning of S.25(1) of the Customs Act, 1969---Impugned assessment orders being infested with patent illegalities were declared to be null and void and were set aside.

Kamran Industry v. Collector of Customs, Exports PLD 1986 Kar. 68; Punjab Baverages (Pvt.) Ltd. v. CEST and 2 others 2002 PTD 2957; Messrs Collector of Customs Port Muhammad Bin Qasim v. Messrs Zymotic 'Diagnostic Int'l. Faisalabad 2008 SCMR 438; Innovative Trading Company Ltd. v. Appellate Tribunal 2004 PTD 38; S.T.B. International v. Collector of Customs, Lahore and 5 others 2006 PTD 232; Rehan Umer v. Collector of Customs, Karachi and 2 others 2006 PTD 909; Najam Impex Lahore v. Assistant Collector of Customs, Karachi and 4 others 2008 PTD 1250; Toyo Int'1 Motorcycle v. Federation of Pakistan and 3 others 2008 PTD 1494; Messrs Sadia Traders and others v. Federation of Pakistan C.P. No.2673 of 2009; 2009 PTD (Trib.) 1926; 2010 PTD (Trib.) 2432; 2010 PTD (Trib.) 2472; 2011 PTD (Trib.) 987; 2011 PTD (Trib.) 2624; 1975 SCMR 352; 1990 SCMR 1059; PLD 1995 SC 396; PLD 1997 SC 334; PLD 1997 SC 582; 1997 SCMR 874; 1998 SCMR 1404; 2002 PTD 976; 2002 SCMR 312; PTCL 2005 CL 135(sic); 2005 PTD 2417; PTCL 2010 CL 602; Khalid Mehrnood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; 1998 MLD 650; 2004 PTD 369; 2004 PTD (Trib.) 2898; 2005 PTD 23; 2003 PTD 2821; 2007 PTD 2092; 2011 PTD. 235; 2011 PTD 1185; 2012 PTD 980; Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala 2008 PTD 60; Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala 2008 PTD 578; Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others 2009 PTD 762; Messrs Syed Bahi Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others 2009 PTD (Trib.) 1263; Leo Enterprises v. President of Pakistan and others 2009 PTD 1978; Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal) 2010 PTD (Trib.) 1010; Fazal Ellahi v. Additional Collector of Customs MCC of PaCCS 2011 PTD (Trib.) 79; Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS 2011 PTD (Trib.) 987; Kaka Traders v. Additional Collector of Post Clearance Audit 2011 PTD (Trib.) 1146; Pak Electron Ltd. v. Collector of Customs, Lahore and others 2012 PTD (Trib.) 1650 and Messrs Super Industries (Pvt.) Ltd., v. Central Board of Revenue and others 2002 PTD 955 ref.

Customs Appeal No.K-249/2000/13372; Customs Appeal No.K-35/2002; Customs Appeal No.K-1670/2001; 2005 PTD (Trib.) 617; Customs Appeal No.K-1281 of 2005; 1986 MLD 790; PLD 1996 Kar. 68; 2006 PTD 909; 2002 PTD 2957; 2007 SCMR 1357 = 2007 PTD 1858; 2008 SCMR 438; 1992 SCMR 1083; 2008 PTD 1250; Messrs Toyo International Motorcycle v. Federation of Pakistan and 3 others 2008 PTD 1494; Sadia Traders v. F.O.P. C.P. No.2673 of 2009; 2009 PTD (Trib.) 1926; 2010 PTD (Trib.) 2432; 2011 PTD (Trib.) 2472;. 2011 PTD (Trib.) 22; 2011 PTD (Trib.) 987; 2011 PTD (Trib.) 2624; 2007 PTD 117; Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala 2008 PTD 60; 2009 SCMR 1126; 2002 MLD 180; 2003 PTD 1354; 2003 PTD 1797; 2008 PTD 578; 2009 PTD 762; 2009 PTD (Trib.) 107; 2010 PTD 465; 2011 PTD (Trib.) 79; 2011 PTD 987; 2011 PTD (Trib.) 1010; 2011 PTD (Trib.) 1146; PTCL 2012 CL 347; 2005 SCMR 492; 2010 SCMR 431; 1990 SCMR 1059; 2002 SCMR 312; 2002 PTD 976; 2007 PTD 361 and 2009 PTD 1507 rel.

(b) Interpretation of statutes---

----Tax law---Plain language of the law was to be applied.

Nadeem Ahmed Mirza for Appellants. Zafar Iqbal A.O. for Respondents.

Date of hearing: 20th June, 2012.

ORDER

GHULAM AHMED MEMBER (TECHNICAL-II).---By this order, we intend to dispose above captioned Customs Appeals filed by the appellants against Order-in-Appeals Nos. 3999-4001 of 2010 dated 23-6-2010, 4156 to 4162 of 2010 dated 5-8-2010, 4259 of 2010 dated 17-8-2010 passed by the Collector of Customs (Appeals), Karachi. These appeals ^{have i}dentical issues of law and fact and are, therefore, being heard, dealt with and disposed of simultaneously through this common order in the light of the judgment of the Hon'ble High Court of Sindh in Custom Reference Application No. 157 of 2008 S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Custom (Adjudication-I) and others, Karachi.

2. Brief facts of the case are that the appellant imported consignments of steel wire rod dia 4 & 5 mm from China, Canada and South Korea and declared to assessable @ US$ 0.3542/kg which was revised by the Collectorate at US$ 0.5630/kg. The Collector of Customs (Appeals) vide his order dated 23-6-2010 rejected the appeals by observing that:--

"I have examined the entire case record and given due consideration to the arguments advanced before me. Clearly, the customs value of the steel wire rod imported in this case had been determined by the department at US$. 560/MT as against declared US$ 354/MT. On the basis of evidence of similar import and the prices of the goods quoted in the London Metal Exchange (LME) as per practice. The appellant's principal contention is that since the department had not been able to prove that the value declared by the appellant was result of some manipulation, the declared transaction value needed to be accepted. In other words, the department had rejected the declared transaction value in violation of the provision of law contained in section 25 of the Customs Act, 1969 and the Rules made thereunder with the interpretation of the aforesaid provision of law by the superior judicial fora. However, on examining the entire record of the case, I observed that the appellant's contention is not tenable. The value of the goods quoted by the appellant was well below the price of commodity quoted in the LME as well as value declared in respect of similar goods imported during the relevant period. Value declared in respect of similar goods imported was US$. 986.70/MT. Therefore, the department had valid reason to believe that the transaction value declared by the appellant's was not the actual price paid by him and rejection of the declared value was fully justified under the law. The manner in which Customs Value of the goods was determined by the department is transparent due adjustments were provided from the evidence of import of similar goods and the price of the same commodity in International Magazine for the relevant period was also taken into consideration. I do not see any illegality in the above manner of determination of customs values of the goods, particularly when the customs value of all consignments of identical goods are being determined in the light of International Magazine prices for the relevant period as per standard practice. Therefore, no discriminatory treatment has been meted out to the appellant. The arguments advanced by the learned consultant do not find enough support from the evidence on record and the case-law quoted by him are not applicable to the fact and circumstances of the instant case. Therefore, I hold that the impugned order is correct in law and on facts and there is no reason to interfere with the same. The appeal is rejected accordingly."

3. The appellant has now challenged the above order by way of this appeal. The consultant Nadeem Ahmed Mirza appeared on behalf of the appellant who reiterated the arguments incorporated in the memo. of the appeal and emphasized that:

(i) That since the import was against firm contract/LC's confirming that the appellant paid the amount of goods in terms of Rule 113, of the Customs Rules, 2001 and this also confirms that the appellant discharged burden of proof laid upon them under Rule 109 ibid.

(ii) That the shippers of appellant also pasted the invoice of the goods on the inner side of the door of container as per provision of Rule 389 of Customs Rules, 2001 notified vide S.R.O. No. 450(I)/2001 dated 8-6-2001, which were retrieved during the course of examination, as evident from order-in-original. rendering the declared value of appellant as fair and transaction value in terms of section 25(I) of the Customs Act, 1969.

(iii) That the respondent No.1 cannot discard the transaction value unless he asks for documents for satisfying him i.e. discharge burden of proof laid on appellant under Rule 109(1) of the Customs Rules, 2001, while transmitting view message under Rule 437 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001. Contrary no message was transmitted under the said Rule to the appellant and neither any evidential invoice relied upon were supplied to appellant as per direction of the FBR given in para 78 of CGO 12/2002 with the reason to the appellant person under sub rule (2) of Rule 109 of Customs Rule, 2001 nor message was communicated in writing or through e-mail about the decision and the ground in terms of Sub-Rule (3) of Rule 109 ibid. Any action contrary to the provision of section 25 and the Rules framed is nullity in the eyes of law.. Reliance is placed on PLD 1986 Karachi 68, Kamran Industry v. Collector of Customs, Exports, 2002 PTD 2957, Punjab Baverages (Pvt.) Ltd. v. CEST and 2 others 2008 SCMR 438 and Messrs Collector of Customs Port Muhammad Bin Qasim Messrs Zymotic Diagnostic Intl. Faisalabad.

(iv) That irrespective of the above, in case of disagreement, for which the respondent No.1 has to give the reason he is empowered to assess the value of the appellant goods only with the application of different subsections of section 25 of the Customs Act, 1969 in sequential manner as expressed in section 25(10) of the Act, as held by the Superior Court in judgments reported as 2004 PTD 38, Innovative Trading Company Ltd. v. Appellate Tribunal 2006 PTD 232, S.T.B. International v. Collector of Customs, Lahore and 5 others 2006 PTD 909, Rehan Umer v. Collector of Customs, Karachi and 2 others 2008 PTD 1250, Najam Impex Lahore v. Assistant Collector of Customs, Karachi and 4 others and 2008 PTD 1494 Toyo Int'l Motorcycle v. Federation of Pakistan and 3 others and C.P. No.2673 of 2009 Messrs Sadia Traders and others v. Federation of Pakistan.

(v) That the respondents totally ignored the provision of law and the available evidences of value of identical/similar goods expressed in subsections (5) and (6) of the Customs Act, 1969, read with Rules 117 and 118 of Customs Rule, 2001 i.e. data maintained by PACCS under Rule 110 of Customs Rules, 2001. The respondent No. 1 despite gross illegality as discussed above could had assessed the appellant goods on the basis of the identical/similar goods. Contrary, he adopted an alien method, not prescribed anywhere either in the provision of section 25 of the Customs Act, 19.69 or Chapter IX of Customs Rules, 2001 as evident from the assessment, which was made on the basis of prices quoted in LME on the date of firm contract. Which is erroneous and render the assessment order/order-in-appeals arbitrary unilateral and nullity in the eyes of law. Resultant, void and ab-initio.

(vi) That it was mandated upon the respondents to adhere the provision of law and direction contained in Chapter IX of Customs Rules, 2001 i.e. to consider the available data of import, maintained as per Rule 110 ibid for the assessment purpose, if the importer fails to discharge burden of proof laid upon him under Sub-Rule (1) of Rule 109 and while doing so the lowest value of available data has to be applied as per clause (d) of subsection (5) of section 25 of the Customs Act, 1969. That even the data of similar/identical goods e.g. corresponding to C.R. Nos. 1194550-021109, 1225792-021209, 1241517/151209, 1252652/231209 and 1258728/301209 confirms that the appellant declared value was fair as the consignments against the said C.R. Nos. were allowed clearance on import value of US$. 354.20 to 404.48 and assessed at US$ 450/MT. The said proposition of law stood validated from the reported judgments 2009 PTD (Trib.) 1926 and 2010 PTD (Trib.) 2432, 2010 PTD (Trib.) 2472, 2011 PTD (Trib.) 987 and 2011 PTD (Trib.) 2624.

(vii) That the assessment/determination of the appellant goods value by the respondent No. 1 and his subordinate is manifestly capricious and based on erroneous and forced construction of law and beside loudly speak about a differential treatment, not permitted under law. Hence, the assessment and order-in-appeal are nullity/bad in law and discriminatory 1975 SCMR 352, 1990 SCMR 1059, PLD 1995 SC 396, PLD 1997 SC 334, PLD 1997 SC 582, 1997 SCMR 874, 1998 SCMR 1404, 2002 PTD 976, 2002 SCMR P.312 and 2005 CL 135(sic).

(viii) That the respondent No. 2 passed the judgment on personal whims and wishes and biased opinion, while ignoring the provision of the Act, rules and regulation framed thereunder and the said fact stood verified from the fact that the respondent No.2 passed judgment are without framing issue and rebottle on a single ground of the memo. of appeal and additional written arguments/grounds submitted subsequently, rendering the order suffer from legal infirmity, partial and influenced. Such orders are termed as void ab initio by the Superior Courts reliance is placed on 2005 PTD 2417 and 2012 PTD (Trib.) 1697.

(ix) That the appeal with the respondent No. 2 was filed on 29-1-2010 and an order under the proviso of subsection (3) of section 193-A of the Customs Act," 1969 should had been decided by the respondent within 120 days from the date of filing of appeal or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing. No extension was granted by respondent No. 2 prior to expiry of initial period of 120 days. Contrary the order-in-appeal was passed on 17-8-2010 i.e. after expiry of 61 days of the initial period and 1 day after the expiry of entire allotted period of 180 days. Rendering the order-in-appeal barred by time by 61 day and 1 day simultaneously.

(x) The narration of the respondent at para 4 of order-in-appeal that the proceeding in this case could not be finalized within the stipulated time limit due to extended hearing and adjournment granted on the request of both parties, therefore the requisite extension in terms of 1st proviso to subsection (3) of section 193-A of the Customs Act, 1969 was extended for 60 days is without any substance as no adjournment was applied by the appellant or by the respondent No.!. Hence, the extension granted if any by the respondent No.2 is illegal. Beside the respondent No. 2 could not extend the time, unless a notice was served on the appellant as held by the Supreme Court of Pakistan in its reported judgment 1999 SCMR 1881 Khalid Mehmood v. Collector of Customs, Customs House, Lahore. Their lordship of Supreme Court held:

^"S. 168---If initial period of two months, envisaged in S.168, Customs Act, 1969 is allowed to go by without any extension having been made, vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting my extension---Question whether an extension, if any was actually made, within the initial period of two months from the date of seizure and merely because it purported to have been so made, within time may not in itself be enough. The contrary may be shown but, ordinary within the Customs Jurisdiction alone."

"thus if initial period of two months, envisaged in S.168, Customs Act, 1969 is allowed to go by without any extension having been made, a vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting any extension---correspondingly as always , it would remain a moot question whether an extension, if any, was actually made within the initial period of two months from the date of seizure and merely because if purports to have been so made within time, may not be itself be enough the contrary may be shown but, ordinarily within the Customs Jurisdiction alone."

(xi) That in the instant case no extension was given by the respondent No. 2 prior to expiry of initial period of 120 days. Nevertheless, if it is considered for the sake of arguments that that was given even prior to expiry of initial period of 120 days i.e. also illegal, because the said extension was given without answering the condition prescribed for exercising such powers i.e. he has to apply his mind and after making an objective assessment, if he^- comes to the conclusion that the extension of time is to be granted, he has to grant the same, not merely on the basis of his personal opinion that the time was lapsed due to frequent adjournment, which were in fact never applied by either side and the said fact can be re-verified by calling the record of the case resting with respondent No.2. The granted extension of 60 days was unlawful and without jurisdiction. It is settled principle that "where exercise of jurisdiction by any authority or court or Tribunal is made subject to existence of a specific condition, then such power cannot be exercise in the absence^, of that condition---where an executive authority exercise its jurisdiction after expiry of period provided in the statute, such exercise manifestly suffer from lack of jurisdiction as held by the Superior Court in umpteenth judgment e.g. 1998 MLD 650, 2004 PTD 369, 2004 PTD (Trib.) 2898, 2005 PTD 23, 2003 PTD 2821, 2007 PTD 2092 and 2011 PTD 235, 2011 PTD 1185 and 2012 PTD 980.

(xii) That since the extension was granted by the respondent No.2 without any lawful authority and in the absence of adherence of proposition of law (even then the order-in-appeal was passed after 181 days). Hence, it hits by limitation as it was passed after the lapse of initial period of 120 days and entire 180 days given in subsection (3) of section 193A of the Customs Act, 1969. Hence, it is of no legal effect, void ab initio as held by Superior Courts in their reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578, Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1.263 Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, . Lahore and 2 others and 2009 PTD 1978, ,Leo Enterprises v. President of Pakistan .and others 2010 ^-PTD (Trib.) 1010; Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal) .2011 PTD (Trib.) 79, Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.) 1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others.

4. The department representative Mr. Ghulam Yasin, Appraising Officer, appeared on behalf of the respondent and adopted the arguments incorporated by respondent No. 2 in paragraph 3 of order-in-appeal and also filed para wise comments on, grounds of appeal which are as under:-

(i) That in the light of submissions made above and considering the provisions of sections 80, 25(9), 25(11) and 25(13a) of the Customs Act, 1969, read with Rule 107 of the Customs Rules, 2001, it is clear that the respondents have discharged their duties provided that the said assessments are subject to audit ^.and scrutiny as per section 32(3A) of the Act in accordance with law.

(ii) That the pasting of an invoice does not means that the declared value is to be accepted as the customs value. The law is very much clear that the determination of customs value is subject to all subsections of section 25 and otherwise subject of section 25A of the Act, as the case may be.

(iii) That the contents of ground (C) are incorrect, hence, denied. The aforesaid submissions and the electronically recorded "Assessment Notes" are proving that ample opportunity of hearing was provided to the appellant and in the light of valuation data of similar kind of goods it is clear that the importers declared value can not be considered as payable transaction value/customs value for assessment purposes in terms of section 25(1) of the Customs Act, 1969. The objection of the importer regarding the assessment/valuation of the imported goods also is without any cogent reason/basis and devoid of merits. Without prejudice to above, it is clarified here that nowhere in section 25 of the Customs Act, 1969, it has been laid down that every declared value is to be accepted for the assessment purposes rather under subsection (1) of section 25 of the Customs_. Act, 1969, the payable transaction value (which is not in this case) is to be accepted as customs value on the following conditions:

(i) subject to subsequent subsection of Section 25 and rules (i.e. Chapter-IX of the Customs Rules, 2001).

(ii) that the value paid by an importer must be in agreement with the "payable" value in the market of similar kind of goods.

(iii) That first of all, it is proved from the record that no information or corroborative document has been produced to substantiate that their declared value is true "payable" transaction value of the imported goods. In the present scenario the whole world is a trade village and it is hard to believe that the same goods are available/sold with the difference of almost 90%. Secondly, by virtue of powers conferred under subsection (11) of section 25 of the Customs Act, 1969, the customs authorities have a right to satisfy themselves whether the "paid" value is true "payable^" transaction value to be considered as customs value for assessment purposes. For this purpose, apart from other information/documents, as requisitioned by the customs; an importer is duty bound to provide the information about the price adjustments, along with corroborative documents, as envisaged in subsection (2) of section 25 of the Customs Act, 1969. Admittedly in the instant case the importers have failed to provide the said information/documents, thus, in terms of clause (1) of section 25(2) of the Customs Act, 1969, there is no basis, whatsoever, to accept the declared value as customs value in terms of section 25(1) of the Customs Act; 1969. Thirdly, the words "subject to the provisions of this Section and Rules", appearing in section 25(1) of the Customs Act, 1969, have great relevance while accepting any transaction value as customs value. It is an assistance to an assessor as well as importer to substantiate that his declared value is truly paid transaction value when his declared value is in accordance with the valuation data of already determined customs values, maintained in terms of subsection (13)(a) of section 25A of the Customs Act, 1969, read with Rue 107 of the Customs Rules, 2001. If the said declared value is not in agreement with data of already determined customs value then the same cannot be accepted as payable transaction customs value. Taking into consideration the principle laid down by the Honourable High Court in the case of Messrs Super Industries (Pvt.) Ltd., v. Central Board of . Revenue and others (2002 PTD 955) the assessment of the consignment has been made at par with the other importers' goods with a view to eliminate any discrimination and market distortion. In the aforecited case the honourable High Court held that one of the cardinal principle of tax law is that the revenue method should be consistent in practice and version.

(iv) That in the light of submissions made above the contents of ground (D) are incorrect, hence, denied.

(v) That the contents of para (E) of Grounds of appeal are incorrect, hence, denied. In the presence of large number of the assessment at the ascertained value, only a few isolated clearances at lower assessments make no defense for the appellants. In all such cases where the goods have been released with wrong assessment, the recovery proceedings, as provided under the law, are being initiated against the importers. Therefore, a Goods Declaration (GD) which is subject to post clearance audit can not be made basis for any subsequent wrong assessment and all such cases are subject to recovery action in terms of sections 32 and 32A of the Customs Act, 1969. Without prejudice to above, even otherwise it is cardinal principle of law that two wrongs cannot make one right.

(vi) That in the light of submissions made above the contents of ground (F) are incorrect, hence, denied.

(vii) That in the light of submissions made above the contents of para (G) of Grounds of appeal require no further comments.

(viii) That in the light of submissions made above the contents of para (H) of Grounds of appeal are incorrect, hence, denied.

(ix) That the contents of para (I) of Grounds of appeal are incorrect, hence, denied. As per first proviso to section 193-A(3) the Collector (Appeal) can decide an appeal within the extended period.

(x) That in the light of submissions made above the, contents of paras (J) and (K) of Grounds of appeal require no further comments.

5. Rival parties heard and case records perused and the following issues are framed for consideration by this forum:

(i) Whether appellant declared value was transaction value within the meaning of section 25(1) of the Customs Act, 1969 and the appellant's has discharged burden of proof laid upon him under Rule 109 of Customs Rules 2001?

(ii) Whether the respondent has discharged' the burden of proof by following the provision enumerated in section 25 of the Customs Act, 1969 while determining the value of the subject consignments?

(iii) Whether the transaction values declared by the appellant are in conformity with the clause (d) of subsection (5) of section 25 of they Customs Act, 1969?

(iv) Whether order-in-appeal is barred by time in terms of a proviso to subsection (3) of section 193-A of the Customs Act, 1969 is being issued after 1 day of the stipulated limitation period of 180 days in Appeal No.905 of 2010 and after the initial period of 120 days as no extension was granted prior to expiry of initial period of 120 days in 3 Appeals Nos. 883 to 885 of 2010?

(v) Whether the subject imports of the appellants has been meted out a differential treatment as compare to other contemporaneous imports involving an element of discrimination in terms of Articles 4 and 25 of the Constitution of Pakistan read with number of judgments of the Superior Judicial fora?

6. That as regard issue No. (i), this Tribunal has observed that when the appellant in the column of (financial information) of the GD transmitted clearly that the import is against confirmed letter of credit, its number and date and in the examination invoice was found as per Rule 3E9 of the Customs Rules, 2001, of the same amount, for which declaration was made, he discharged the burden laid upon him under section 25(1) of the Customs Act, 1969 and under Rule 109 of the Customs Rules, 2001. That for disputing the said value, it was mandated upon the respondents to transmit view messages under Sub-Rule (1) of Rule 109 of Chapter IX and 437 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 to the appellant for transmitting/scanning additional documents. On the contrary no such exercise was undertaken either by the Appraiser, Principal Appraiser and the respondent No. 1 as no copies of the transmitted view messages have been paced on record by the respondent, despite, shifting burden of proof. No decision was also communicated with grounds as enunciated in sub-rule (3) of Rule 109 confirming that no cause or reason was available with the respondent for disputing the value and the said fact further stood proved from the fact that no evidential invoice as directed by FBR in para 78 of CGO 12/2002 of the period expressed in Rule 107(a) was placed before this Tribunal. The department has miserably failed to discharge the onus of establishing that the price declared by the appellants of the imported goods are not the transaction value within the meaning of section 25(1) , of the Customs Act, 1969. The same view has been taken by the Hon'ble Supreme Court of Pakistan and High Courts and Tribunal in judgments reported Customs Appeal No.K-249/2000/13372, Customs Appeal No.K-35/2002, Customs Appeal No.K-1670/2001, 2005 PTD (Trio.) 617, 1668/LB and 1669/LB of 2002, Customs 'Appeal No.K-1281 of 2005, 1986 MLD 790 Karachi, PLD 1996 Karachi 68, 2006 PTD 909, 2002 PTD 2957, 2007 SCMR 1357 = 2007 PTD 1858, 2008 SCMR 438, 1992 SCMR 1083, 2008 PTD 1250 and 2008 SCMR 438". As such issue No.(i) is answered in affirmative.

7. As regard issue No.(ii), the provision of section 25 of the Customs Act, 1969 are to be followed in sequential manner baring certain exceptional cases where massive group under invoices is rampant. However, resort to subsequent method is not permissible without exhausting the sequence indicated in section 25 as it would annihilate and terminate the spirit and essence of the transaction value which in the first instance has to be established as colorable and tainted. The mere insertion of word "may" or "may not" in_, place of " are required to" in subsection (15) of section 25 of the Customs Act, 1969 ₁ through Finance Ordinance, 2007 does not give unbridled and un fettered authority to customs administrations to play havoc with the provision of section 25 ibid. thereby making them ineffective and redundant. Discretion has to be exercised within limits based on reason, rationale and fairplay. It is specifically provided by the legislature in sub-section (10) of the section 25 that subsections (1) (5)(6)(7)(8)(9) define how the customs value of the imported goods is to be determined by the customs. The method of custom valuation are normally required to be applied in a sequential order except reversal of the order of subsections (7) (8) at the importers, request, if so agreed by the Collector of Customs. This aspect has been examined in a Division Bench in a case of 2008 PTD 1494 Messrs Toyo International Motorcycle v. Federation of Pakistan and 3 others. Their lordship observed: --

"Common factor, in sections 25 and 25A is determination of value on the basis of the procedure provided in section 25 in the sequence mentioned therein.-- The language of sections 25 and 25A provides for an authority to determine the value of a particular item but the same is not independent of the various provisions of section 25.

A plain reading of provisions of sections 25 and 25A convey that common factor in them is determination of value on the basis of the procedure provided in section 25 in the sequence mentioned therein. Each one of them serves the same purpose if looked from angle of language of law and the principle of interpretation of a fiscal statute."

and in paras 24 and 25 further that:?????? .

"In principle this court has agreed with learned Legal Advisor Mr. Izhar-ul-Haque Sheikh, Advocate, that section 25A is a non obstante clause and it is in supersession to section 25, therefore, all the arguments with regard to adoption of the said procedure as a normal and mandatory requirement stands abated. However, the matter does not end there. There is a very clear direction for the Collector df Customs and Director of Customs Valuation, which is discussed hereinafter.

25. The provisions of section 25A(I) reproduced earlier can be classified in the following manner:

(i) That it is a non obstante clause, hence it supersedes section 25,

(ii) That the Collector of Customs can prepare such advice at his own motion,

(iii) That the Director of Customs Valuation can prepare the same on request of a person.

(iv) That while preparing such advices, the sequential order provided under section 25 shall be followed.

8. In yet another judgment given in C.P. No. 2673 of 2009 of Sadia Traders v. FOP the Hon'ble High Court of Sindh held that "the primary method of determining the Customs Value is transaction value, i.e. the price actually paid or payable for the imported goods (The price actually paid or payable may be subject to certain adjustment, but this aspect of the matter need to be considered in detail). This is duly recognized in terms of both Article-1 of the Valuation Agreement, and subsection (1) of section 25. Secondly, if the transaction value cannot be determined, then the subsequent methods are to be applied sequentially, in the order set forth in the Valuation Agreement. As is clear from the table above, the. relevant subsections of section 25 are arranged in the same sequence. Thirdly, and this is of crucial importance for present purposes, the exercise must stop at the first method which is found applicable. It is neither permissible nor necessary to go on to, or to consider any of the succeeding methods. In this context, it will be noted that the opening words of each of subsections (5), (6),(7), (8) & (9) expressly provide that the subsection is to apply only if "the customs value of the imported goods cannot be determined under the preceding applicable subsection unless it is first concluded that the previous subsection referred to does not apply, and it is not permissible to apply the latter unless it is first concluded that the subsection preceding it does not apply, and so on. Thus, all the elements of the Principle of sequential application are clearly embedded in section 25"

9. The High Court of Sindh in the same judgment further held in regards to Valuation Rulings issued under section 25A(I) of the Customs Act, 1969 that "the Legislature added the said Section with the clear intention that it ought to be permissible for the Customs Authorities to pre-determine the customs value of the goods imported into Pakistan. Since, this pre-determined value was to apply to the relevant imported goods, it constituted a departure from the Value Agreement by dis?applying the primary method, i.e., the transaction value. The language of the section was therefore carefully crafted to keep the difference to a minimum, by making the remaining methods of the Valuation Agreement applicable in the same manner as provided therein. In relation to these methods, the principal of sequential application applied in full so that, in determining the Customs Value, the concerned officer had to apply the method sequentially and stop at the first method found applicable. In other words, although the first of the three elements of the principal was dis-applied, the remaining two elements had to be applied and followed strictly". Their lordship of High Court further held that determination of price of imported goods without application 'of section 25 of the Act or on the basis of London Metal Bulletin a method not provided in section 25 ibid renders the Valuation Rulings so issued ultra vires to sections 25 and 25A of the Customs Act, 1969.

10. In the cited judgments the question under consideration were as to how the section 25 of the Customs Act, 1969 is to be applied by the Director General of Valuation for determining the value of the imported and exported goods for issuance of ruling under section 25-A of the Custom^s Act, 1969.

11. The established principle of interpretation of the tax law is that the plain language of the law is to be applied. A bare perusal of section 25 shows that it is specifically provided in 'subsection (1) of section 25 that .the customs value of the imported goods, subject to the provisions of this section and rules shall be the transaction value i.,e. the price actually paid or payable for the goods when sold for export to Pakistan. The detailed guidelines in this behalf are given in sub-sections (1), (2), (3) and (4). The provisions contained in section 25(1) to (4) contain primary methods of valuation and in the first instance the primary method of valuation is required to be adopted in each case of the valuation of the imported consignment which is mandatory. The detailed guidelines in this behalf are contained in section 25 and the Valuation Rules given in Chapter IX of Customs Rules, 2001. Thus, it is very important requirement of law that before resorting to the method provided in subsection (5) the customs officials shall make an exercise in accordance with the provisions contained in subsections (1) to (4) of section 25 and if thereafter they find that the customs value of the imported goods cannot be determined under the provisions of sub-section (1) they shall resort to the method provided in subsection (5) and not otherwise. It shall be an exercise duly reflecting on the record so than the appellate forums may examine whether the mandatory requirement of law has been carried out or not. We are fortified in our views in this behalf with the provisions contained in sub-rule (3) of Rule 109 which provided that "when a final decision is made, the appropriate officer shall communicate to the importer in writing his decision and the, grounds therewith". In addition to the specific provisions contained in subsection (10) of section 25 to the effect that the methods of customs valuation are required to be applied in a sequential order, we find that it is provided in subsection (6) that, if the customs value of the imported goods cannot be determined under the provisions of subsection (5) the method provided in subsection (7) shall be resorted to and similar provisions are contained in subsections (7), (8) and (9). For the said reason, it is held that different method of valuation provided in section 25 of the Customs Act, 1969 and Customs Rules, 2001 are required to be applied in a sequential order and without visible exercise reflected on record no resort can be made to secondary method of valuation as already held by Superior Courts of Pakistan in referred judgments above and many others. In these cases the evidences available of like contemporaneous imports on record and also produced by the appellant have been ignored, no visible exercise brought in record or communicated to the appellant to the assessable value arrived at by ignoring the sequential manner which also confirms that the determination of value were made on the basis of LME, founding no place in the method prescribed in section 25 of the Customs Act, 1969 rendering the passed assessment orders as arbitrary/unilateral i.e. under prohibited methodenunciated in Rule 110 of Customs Rules, 2001. As such the issue No. (ii) is answered in affirmative.

12. That as regard issue No. (iii) the declared value of the appellant are also fair in the light of transaction value of identical/similar goods expressed in subsection (5) of section 25 of the Customs Act, 1969 read with Rules 117 and 118 of the Customs Rules, 2001. The clause (d) of the said section states that if two or more transaction value of the identical goods are available in the data of import of 90 days as per stipulation of Rule 107(a) of the Customs Rules, 2001, maintained by the respondent in terms of Rule 110 ibid. the lowest value has to be applied for completing the assessment of the identical goods under dispute. The copies of the GDs supplied by the appellant and mentioned at para 3 (vi) of the order. Veracity of which has been confirmed by submitting data by the respondent No. 1, whereas respondent No. 2 despite his opinion in para. 6 of the order-in-appeal in regards to identical/similar goods import value, ignored those without any valid reason and cause, defeating the norms of independent and fair play, irrespective of the fact that the documents/copies of GDs aptly reconfirmed that the declared value of the appellant goods was either less or equal to these, meaning thereby the declared value of the appellant's were fair and same opinion has been held in the reported judgments 2009 PTD (Trib.) 1926 and 2010 PTD (Trib.) 2432, 2011 PTD (Trib.) 2472, 2011 PTD (Trib.) 22, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 2624. As such the issue No. (iii) is answered in affirmative.

13. As regard issue No.(iv) relating to time barred vehemently contested by the consultant for the appellant. The record presented before this forum that Appeal No. Customs-193/2010/PaCCS was filed on 18-2-2010 corresponding to Appeal No. K-905/2010 and order-in?appeal was issued by respondent No. 2 after the expiry of cumulated period of 180 days to be exact the order-in-appeal was issued after 181 days and in Appeals Nos. Cus-65/2009/PaCCS, Cus-72/2010/PaCCS and Cus-192/2010/PaCCS corresponding to Custom Appeals Nos. K-883/ 2010 to $85/2010 were filed before respondent No. 2 on 22-1-2010, 29-1-2010 and 18-2-2010. The order-in-appeals in these cases were issued after expiry of initial period of 120 days without any extension as evident from para. 5 of the appeal confirming that the extension was granted by him on 23-6-2010 when the initial period of 120 days stood expired on 24-5-2010, 29-5-2010 and 18-6-2010. The record also indicates that no written adjournment were sought by either of the adversaries from the Appellate authority and the adjournment if sought , would be of no assistance to the revenue case, since extension was given by respondent No. 2 after expiry of the initial period of 120 days. In words of Superior Judicial Fora time extension given in such cases is akin to giving a new lease of life into dead entity. It is tantamount to flogging a dead horse. If an event or documents has become dead on account of non timely extension of time period. It is legally considered dead and new spirit cannot be infused into it by any means or on account of any reason whatsoever. Following extract from the judgment of the Hon'ble Sindh High Court reported as 2007 PTD 117 is, relevant to the merit of this case:--

We are of the considered opinion that once a matter become barred by time then the subsequent enhancement in the period of limitation shall not have the effect of reopening the past and closed transaction and resuscitating the matters which attained finality and had gone in the annals of history.

The same principle has been laid down by the Hon'ble Lahore High Court in the case of Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and another reported as 2008 PTD 60:--

(i) "Once limitation had started to run and had come to an end the assessee had acquired a vested right of escapement of assessment by lapse of time."

14. In the context of not granting extension within the initial period of time limit the Hon'ble Apex court in its judgment reported as 1999 SCMR 1881 has observed as under which supports the contention of appellant beyond any iota of doubt:--

"Having said as much, we also do not think that the petitioner's caveat is totally devoid of substance. Thus if initial period of two months, envisaged in S.168 (Supra) is allowed to go by without any extension having been made, a vested right may come to accrue to the affecttee and the Collector should be obliged to issue a notice and accord necessary hearing before granting any extension--correspondingly as always, it would remain a moot question whether an extension, if any, was actually made within the initial period of two months from the date of seizure and merely because it purports to have been so made within time, may not be in itself be enough the contrary may be shown but, ordinarily within the Customs Jurisdiction alone."

The above view that once limitation period expires the order or assessment becomes time barred is also supported by various judgments of the superior judicial fora reported as 2009 SCMR 1126, 2002 MLD 180, 2003 PTD 1354, 2003 PTD 1797, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 107, 2010 PTD 465, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1010, 2011 PTD ^(Trib.) 1146 and 2012 PTD (Trib.) 1650. As such issue No. iv is answered in affirmative.

15. That as regard issue No.(v), the consultant for the appellant referred to C.R. Nos. in para.3 (vi), where similar/identical goods cleared with the application of clause (d) of subsections (5) and (6) of section 25 of the Customs Act, 1969 and Rules 117 and 118 of Customs Rules, 2001 on the basis of data of import maintained under Rule 110 of the period given in Rule 107(a) ibid without any hitch or hindrance and even wihtout recourse to the prices of the goods quoted in International Magazines. "A facility allowed to some one and denied to other is discrimination" as held by Hon'ble Apex Court in their judgment 2005 SCMR 492 and in reported 2010 SCMR 431 the Hon'ble Apex Court held that:--

^"doctrine of equality, as contained in Art. 25 of the Constitution, enshrine golden Rules of Islam and states that every citizen, no matter how high so ever, must be accorded equal treatment with similarly situated persons---State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class---In fact all legislations involve some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not---What however, is prohibited under principle of reasonable classification, is legislation favouring some within a class and unduly burdening others---Basic rule for exercise of such "discretion and reasonable classification is that all persons laced in similar circumstances must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not offend spirit of Art. 25 of the Constitution."

The treatment given to the appellant against the principle enshrine in Article 25 of the Constitution of Pakistan and violate the principle of law settled by the Superior Court in other of judgment reported as 1990 SCMR 1059, 2002 SCMR 312, 2002 PTD 976, 2007 PTD 361 and 2009 PTD 1507. As such issue No.(v) is answered in affirmative.

16. In view of the foregoing the assessment orders in these appeals are based upon proceeding which are infested with patent illegalities and which are held to be null and void. This being so, the impugned order of E the respondents Nos.l and 2 are set aside. The subject appeals are accordingly allowed as no order to costs. Order passed accordingly.

HBT/146/Tax(Trib.)???????????????????????????????????????????????????????????????????????????? Appeals allowed.