AMIR AKRAM VS COLLECTOR OF CUSTOMS (APPEALS), PECH SOCIETY, KARACHI, 2014 PTD-CUSTOMS-APPELLATE-TRIBUNAL-KARACHI 1271 (2013)

(a) Interpretation of statutes---

----Words "shall" and "may" in legal phraseology are interchangeable depending upon the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance.

PLD 1972 SC 326 rel.

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

----S. 195-B---Constitution of Pakistan, Art.10-A---Dismissal of appeal for non-deposit of demanded Customs duty/penalty---Scope---Appellant during the pendency of appeal as per the requirement of S. 195-B of Customs Act, 1969, was required to deposit the duty demanded and the levied penalty---Appellant failed to deposit the demanded Customs duty/penalty during the pendency of appeal before the Collector of Customs (Appeals), who dismissed the appeal on account of such default---Contention of the appellant was that the provision of S.195-B of the Customs Act, 1969 was directory and permissive in nature, therefore the appeal could not be dismissed merely on the basis of non-deposit of Customs duty or penalty---Validity---Although S.195-B of the Customs Act, 1969, while directing the deposit of amount of Customs duty in respect of goods which were not under the control of the Customsauthoritiesoranypenaltylevied, used expression "shall",but the stated provision was silent about the consequences flowing out ofits non-compliance---Language of S.195-B of the Customs Act, 1969 was in affirmative and not negative and as such the same was directory and not of mandatory character---Customs authorities had neither attemptedtorecoverCustomsduty/penaltyduringpendencyofappealnortheCollectorofCustoms(Appeals) directedtheappellantfordepositingthesamebeforedismissingappealonaccountofsuchdefault---Rightofappealcouldnotbetakenaway as said right was protected under Article 10-A of theConstitution---Impugned orders were set aside---Appeal was allowed.

2012 PTD (Trib.) 1913 rel.

(c) Administration of justice---

----If a thing required by law to be done in a certain manner, same must be done in the same manner as prescribed by law or not at all.

Assistant Collector v. Khyber Electronic Lamps 2001 SCMR 838 rel.

(d) Limitation---

----Recovery of money---Limitation---If a law prescribed period of time for recovery of money, after it's lapse, recovery is not enforceable through Court.

Federation v. Ibrahim Textile 1992 SCMR 1898 rel.

(e) Interpretation of statutes---

----Financial statute---While construing a financial statute, its terms are strictly to be followed.

Federation v. Ibrahim Textile 1992 SCMR 1898 rel.

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

----S. 32A(2)---Recovery of short levied customs duties---Time barred show-cause notice---Effect---Show-cause notice issued by the notifying authority beyond the period of limitation was patently illegal, without jurisdiction and lawful authority and as such all subsequent proceedings and orders based thereupon were set aside being without jurisdiction.

2009 PTD 2004 and 2009 PTD 1978 rel.

Atlas Tyres v. Additional Collector 2003 PTD 1593 Kamran and Industries v. Collector PLD 1996 Kar. 68 ref.

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

----Ss. 32 & 156(1)(9)(14)---Charge of fiscal fraud/tax evasion---Standard of proof---Proceedings in such cases required proof beyond all reasonable doubt---Benefit of doubt---Scope---Adjudication officer having found the appellant guilty of fiscal fraud, imposed penalty---Appeal filed by appellant against order-in-original was dismissed by Collector of Customs (Appeals)---Contention of the appellant was that prosecution department failed to establish the allegation levelled in show-cause notice, therefore he was entitled to acquittal from the charge on the strength of benefit of doubt---Validity---Charge of fiscal fraud/tax evasion had been framed against the appellant without establishing mens rea through any material evidence or proof, whole case had been built on assumption or presumption which was unwarranted in law---Department failed to establish the allegation levelled in the show-cause notice beyond any shadow of doubt, therefore benefit of doubt was to go to the accused---Impugned findings and orders of authorities were perverse, arbitrary and based upon no evidence, therefore the same were set aside---Appeal was allowed.

Kamran Industries v. Collector PLD 1996 Kar. 68; Al-Hilal Motors' case 2004 PTD 868 and PTCL 2009 CL 676(sic) rel.

Al-Hilal Motors 2004 PTD 868; Kamran Industries v. Collector PLD 1996 Kar. 68 and PTCL 2009 CL 676(sic) ref.

Aqeel Ahmed and Muhammad Farooq Sheikh for Appellants.

Zubair Awan for Respondent.

Date of hearing: 24th September, 2013.

ORDER

MUHAMMAD NADEEM QURESHI, (MEMBER (JUDICIAL-I).--This order shall dispose of the instant appeal filed by Appellant Order-in-Appeals Nos.5942 to 5943 of 2011 dated 3-11-2011, passed by the Collector of Customs (Appeals), Karachi against Order-in-Original No.018 of 2011 (PQ) dated 30-4-2011, passed by Additional Collector of Customs, Model Customs Collectorate of Port Muhammad Bin Qasim, Karachi.

2.Brief facts of the case as stated in the impugned order are that the appellants and their associates, with the connivance of the officials of Messes PRAL, adopted a novel method for fraudulent clearance of consignments from the MCC Port Qasim by effecting changes in the Customs Data in respect of a number of containers (quantity and weight) to evade the leviable duty/taxes after the process/completion of examination of Goods Declaration (GD) and Customs out of charge formalities the Customs date was change. Thus, the fraudsters managed to clear consignments of imported goods without examination of the goods. It was found that the fraudsters succeeded in evading duty/ taxes to the tune of Rs. 13,424,176 in relation to the goods imported under Goods declarations bearing Nos. KPQI-HC-12947 dated 29-3-2008, KPQI-HC-11561 datcd 4-3-2008, KPQI-HC-11569 dated 4-3-2008,: KPQI-HC-12948 dated 29-3-2009, KPQI-HC-15465 dated 12-5-2008, KPQI-HC-15466 dated 12-5-2008, KPQI-HC-15467 dated 12-5-2008, KPQI-HC-18344 dated 30-6-2008, KPQI-HC-17399 dated 13-6-2008, KPQI-HC-16622 dated 31-5-2008 and KPQI-HC-17554 dated 16-6-2008. All concerned including the appellants were accordingly charged under the relevant provisions of law for fraudulently clearing the above-mentioned goods and defrauding the Exchequer from its legitimate revenue amounting to Rs. 13,424,176.

3.The adjudicating officer held vide the impugned order that the charges against the appellants had been established. The operative part of the same is reproduced as under:

"I have gone through the record of the case and also considered the verbal as well as written arguments as available on case file. It is an admitted position beyond any doubt that these unscrupulous individuals adopting novel method of fraudulent clearances of consignments from Model Customs Collectorate, Port Muhammad Bin Qasim, Karachi by effecting changes in the Customs data in respect of container quantity/weight after filing of Goods Declaration, Customs Examination and prior to completion of other formalities before taking delivery. They used to change the quantity / number of containers after the completion of process of examination and when the goods declaration was out of customs charge, they used to make changes in the Customs data in order to obtain the delivery of undeclared numbers of containers as per manifestation from the container terminal operator. The data pertaining to these eleven goods declarations were accordingly retrieved and the enquiry proceedings were started under the relevant provisions of law which transpired that the persons named in the above paras were knowingly and willfully involved in this fiscal fraud, mis-declaration and criminal activities with the active connivance of PRAL officials. An F.I.R. No. SI/Misc/785/20091 PQ-IIT dated 17-7-2009 was therefore, lodged in this case for criminal prosecutions of the importer and his authorized clearing agent and oilier accomplices, which is sub-judice before the Honorable Special Judge (Customs and Taxation) Karachi. These investigations and the available evidence on record has established beyond an iota of doubt that all these accused, in active connivance with each other, have committed the offence of evasion of duty /taxes in gross violation of sections 32 and 32-A of Custom Act, 1969 while committing fiscal fraud, criminal financial activity, besides mis-declaration of quantity, contents of Goods Declaration and have succeeded fraudulently in getting the goods released without payment of leviable duty/taxes depriving the exchequer of its legitimate revenue to the tune of Rs,13,424,176 against clearance of these 16 containers. All the accused were given ample opportunity to defend themselves but inspite of that the accused were unable to deny the charges levelled against them. In view of the above and after a careful examination of available data and evidence on record, I am of the considered view that the charges for violation of sections 32 (1), 45, 79, 155(H) (I) & (J) and 192 of the Customs Act. 1969 read with section 33 of the Sales Tax Act, 1990, and section 148 of the Income Tax Ordinance, 2001 punishable under clauses (1), (9), (14). (45), (77), (86), (90), (100), (101) and (102) of section 156(1) of the Customs Act, 1969, read with clause 11-C of section 33 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001 levelled against all the accused nominated in the case stands fully established, therefore, in exercise of, the powers conferred upon me in the capacity of adjudicating officer in terms of section 179 of Customs Act, 1969 a penalty on the importer equivalent to three times of the value of goods which comes to Pak Rs. 61,375,920 (Six crore. thirteen lac seventy five thousand, nine hundred and twenty only) under section 156(1) clause 14 of the Customs Act, 1969, along with evaded amount of duty/taxes of Pak Rs.13.424,176 which is to be deposited by the importer forthwith. Besides, a personal penalty amounting to Rs. 500,000 (Five Lacs) on each namely (1) Sheikh Sardar Ali, proprietor MessrsAnmol Steel Mill (2) Aamir Akram son of Muhammad Akram, Director/CEO MessrsAnmol Steel Mills Mills (Pvt.) Ltd. (3) A Akram son ofMuhammad Akram, Director, MessrsAnmol Steel (Pvt.) Ltd. (4) Jamil Ahmed son ofBashir Ahmed (5) Kashif Ahmed son of Riaz Ahmed (6) Abdul Qadir son ofKamal Khan, is also imposed which requires to be deposited by them well within thirty (30) days of the issuance of this order, failing which necessary recovery proceedings under section 202 of the Customs Act, 1969 read with Recovery Rules as notified vide Rules Nos. 133 to 199 of Customs Rules, 2001 notified vide. S.R.O. 450(I)/2001 dated 18-6-2001 as amended from time to time will be initiated. As regards as the role of clearing agents in fraudulent clearances and their subsequent non appearance and non cooperation, serious concern has arisen towards the responsibilities of a Customs Agents Licensee as exclusively enunciated vide rule No.101 (a)-(r) wherein the clearing agents are fully responsible for any or all documents signed by him or his employee on his behalf or on behalf of his client. Therefore, out come of the detailed investigations carried out also reveals that these unscrupulous clearing agents are found fully involved in this fraudulent clearance of goods criminal financial activates by evading the legitimate revenue of the Government Exchequer and had completely failed to exercise due diligence to ascertain the correctness of information which they impart to the customs department. Therefore, they are found guilty of committing an offence in violation of sections 32(1), 45, 79 155(H) (I) & (J) and 192 of the Customs Act, 1969, read with section 33 of the Sales Tax Act, 1990, and section 148 of the Income Tax Ordinance, 2001 punishable under clauses (1), (9), (14), (45), (77), (86), (90), (100), (101) and (102) of section 156(l) of the Customs Act, 1969 read with clause 11C of section 33 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001. In addition they have also violated the provisions of Customs Rules, 2001 notified vide S.R.O. 450(I)/2001 dated 18-6-2001. Therefore, a personal penalty of Rs. 500,000 each is also imposed on the clearing agents namely Faisal Ghulam Hussain, proprietor for MessrsSabeyah Enterprises (CHAL No. 2533) and Tanveer Muktar Mir Proprietor of MessrsShoukat Tanveer Agencies Corporation (CHAL No. 102) under aforesaid provisions of law. Besides, the Licensing Authority is requested to proceed against the above named clearing agents under Licensing Rules for revocation of their Customs House Agent License Number 2533 and License No. 102 and also for forfeiting the License securities deposited by them in the Custom House Karachi, under intimation to this office. MessrsPRAL, are also directed to initiate strict disciplinary proceedings against the delinquents namely Kashif Ahmed son ofRiaz Ahmed, employee of MessrsPRAL, r/o House No. 26/11, Jinnah Square, Malir, Karachi and Abdul Qadir System Administrator of Messrs PRAL r/o, House No.A-1, Block 183, Pakistan Railway Colony, Adam Khan Road, Karachi Cantt, who remained involved in the massive scam of fraudulent clearances under intimation to this office."

4.Dis-satisfied with the Order-in-Original, the appellant filed an appeal before the Collector (Appeals), Karachi, who hold the impugned order and rejected the appeals for non-compliance of the provisions of section 195-B of the Customs Act, 1969.

5.Being aggrieved and dis-satisfied with the-impugned order-in-appeal the appellant filed the instant appeals before this Tribunal on the grounds incorporated in the Memo of Appeal.

6.On the date of hearing Mr. Ageel Ahmed, Advocate along with Mr. Muhammad Farooq Sheikh Advocate, appeared on behalf of the appellant and reiterated the arguments as already submitted in the memo. of appeal. Mr. Aqeel Ahmed, Advocate for the appellant further contended that, show-cause notice dated 26-1-2011 is ab initio illegal and without, jurisdiction and all subsequent proceedings based on the instant show-cause notice become illegal and without jurisdiction, he relied upon judgment of Lahore High Court in case of Atlas Tyres v. Additional Collector 2003 PTD 1593 as well as Sindh High Court judgment in case of Kamran Industries v. Collector PLD 1996 Kar. 68. Further, in support of his argument he contended that charge of fiscal fraud has been framed against the appellant in the show-cause notice covered under section 32A of the Customs Act, 1969 and gross violation of section 32A has been established in the order-in-original and stated in the para wise comments of the respondents. He pointed out that under section 32A the show notice had to be served within a period of 180 days of the date of detection of alleged customs duty/taxes and tax fraud, but, in the instant case the alleged offence was detected and reported vide F.I.R. No. SI/ MISC/785/2009-PQ-III on or before dated 17-7-2009 and show-cause notice was issued and proceedings were initiated under section 32A(2) after 557 days on dated 26-1-2011 which are beyond the mandatory period of limitation of 180 days provided under subsection (2) of section 32A of the Customs Act, 1969. He referred the judgments of Hon'able Supreme Court of Pakistan in case of Federation v. Ibrahim Textile 1992 SCMR 1898 and in case of Assistant Collector v. Khyber Electronic Lamps 2001 SCMR 838.

7.Learned Advocate for the appellant argued that proceedings under section 32A against the appellant are ab initio, illegal and without jurisdiction which had been initiated against the appellant withoutserving him statutory show-cause notice required to be served under subsection (2) of section 32A of the Act, 1969, the appellant had been implicated, added and alleged in the instant case and proceedings through a corrigendum issued after issuance of show-cause notice and first hearing on dated 14-2-2011. He further argued that issuing authority neither disclosed any provision of the Customs Act, 1969 under which he has issued the corrigendum nor the authority disclosed the reasons of issuance of such corrigendum. He contended that framing the charge of fiscal fraud/tax evasion under section 32A without establishing mens rea against the appellant and without disclosing any material evidence or proof rendered the notice invalid and without jurisdiction and whole case has been built on some assumption or presumption which unwarranted in law as held by the High Court of Sindh in case of Al-Hilal Motors 2004 PTD 868. He further contended and argued that, penal proceedings are criminal in nature requiring a higher standard of proof beyond all reasonable doubt, if it is not, the impugned actions and orders of the department are held to be Completely without jurisdiction, illegal ab initio and of no legal effect, in the instant case of the appellant neither any higher standard of proof has been placed on record by the department nor disclosed by the Adjudicating Officer regarding establishment of charge of guilty of alleged offence of fiscal fraud/tax evasion, he referred judgment of Sindh High Court judgment in case of Kamran Industries v. Collector PLD 1996 Kar. 68. He further argued that it is well settled law that prosecution department must establish the allegation levelled in the show-cause notice beyond any shadow of doubt otherwise benefit of doubt how slightest it may go to the accused, he relied uponPTCL 2009 CL 676(sic) and contended that in the instant case prosecution department has failed to do.

8.On behalf of the respondent Mr. Zubair Awan, Inspector, appeared and adopted the contents of the para wise comments filed by the respondent and contended that, the impugned order is lawful, just and equitable and have been passed after taking into consideration all the facts and circumstances of the case. He further submitted that, the order passed by the learned Collector (Appeals) is not an ex parte order and have been passed after providing proper opportunity of hearing and after consider all the pleas taken before him. He further submitted that the order passed after obtaining extension of sixty (60) days in terms of first proviso to subsection (3) of section 193-A of the Customs Act, 1969. He further submitted that, the case-laws cited by the appellant are not applicable to the instant case. No doubt the proceedings before the Special Judge are independent to the adjudication proceedings. However, the appellant confessed the commission of offence before the Special Judge, the appellant cannot deny such fact in the adjudication proceedings. He further submitted that, the appellant confessed his offence before the Special Judge Customs without any coercion. The appellant cannot take different plea in these proceedings. He further submit that, this is a case of active connivance and collusion of unscrupulous elements and the officials of PRAL and in view of confession of the appellant recording of evidence will serve no purpose. The adjudicating officer has thus acted in accordance with law in a just, fair and equitable manner. He also submitted that, in view of confession before the Special Judge by the appellant, statement before Seizing Officer has no value and is not merit consideration. He further submitted that, the accused Jamil Ahmed approached the Collectorate under section 32B of the Customs Act, 1969. The amount evaded was communicated to the accused vide letter dated 27-6-2009. However neither the accused nor his counsel approached the customs authorities to comply with the orders of the Honorable High Court of Sindh at Karachi. The appellant is not involved in the commission of the offence and do not know Jamil Ahmed. The appellant is hand in glove with Jamil Ahmed. The goods were removed from the port with active collusion and in connivance with unscrupulous elements and PRAL Officials, and accused Jamil Ahmed is no exception, who has equally played active part in this fraudulent activity through which the National Exchequer suffered a colossal loss. It is respectfully submitted that it is an admitted position that the appellant along with other unscrupulous individuals adopted novel method of fraudulent clearances of consignments from MCC Port Qasim, Karachi, by effecting changes in the Customs data in respect of container quantity/weight after filing of Goods Declaration, Customs Examination and prior to other formalities before taking delivery with active collector and connivance of PRAL Officials. They used to change the quantity/number of containersafter the completion of process of examination and when the goods declaration was out of customs charges, they used to make change in the customs data in order to obtain the delivery of undeclared number of containers as per manifestation from the container terminal operator. The investigations and available evidence on record has established beyond an iota of doubt that all these accused, in active connivance with each other have committed the offence of evasion of duty/taxes. He prayed this Honorable Tribunal may be pleased to up hold the order passed by the learned Collector Appeals as well as the order in original.

9.Considering the arguments of the both rival parties as well as pursued the case record and documents placed on record by the parties and settled the following issued which required consideration, and to be decided in accordance with law:--

(i)Whether the impugned order-in-appeal dated 3-11-2011 is sustainable being passed on technical consideration of compliance of section 195B of the Customs Act, 1969 without preferring the substantial justice and merits of the case?

(ii)Whether the impugned show-cause notice is without jurisdiction and lawful authority being passed beyond the period of limitation of 180 days of the date of detection of alleged fiscal fraud/tax evasion provided under section 32A(2) of the Customs Act, 1969?

(iii)Whether initiation of proceedings against the appellant under section 32A on the basis of a corrigendum without service of statutory show-cause notice under subsection (2) of section 32A are illegal and without jurisdiction?.

(iv)Whether the finding of the Adjudicating Officer and orders passed by the authorities below are based on higher degree of proof or evidences beyond any doubt regarding establishment of charges of fiscal fraud/tax evasion?

10.As regards to the issues No.(i) the learned counsel for the appellant contended that the provisions of section 195-B of the Custom Act, 1969 is directory in nature and the appeals cannot be dismissed simply on account of non-deposit demanded amount of tax without examining the merits of the case. The learned counsel relied upon the case-law 2012 PTD (Trib.) 1913 and prayed that as per rule of consistency the appeal be heard and decided on merits. The learned counsel for the respondent, however, argued that language of section 195-B clearly reflected that there is no room for contending that the deposit of amount mentioned therein was not obligatory and was not in the nature of a condition precedent unless dispensed with by the competent authority for deciding the appeal. Before examining the merits of the contentions of the learned counsel for the appellant as well as the respondent regarding interpretation of section 195-B of the Customs Act, 1969, the section 195-B may usefully be re-produced:--

"195-B. Deposit, pending appeal, of duty demanded or penalty levied. Where, in any appeal under this Chapter, the decision or order appealed against creates to any duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person, desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper, officer the duty demanded or the penalty levied:

Provided that where in any particular case the Collector (Appeals) or the Appellate Tribunals of the opinion that the deposit of duty demanded or penalty the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he, or it, may deem fit to impose so as to safeguard the interest of revenue:

Provided further that an order dispensing with such deposit shall, without effecting the appeal, case to have effect on the expiration of a period of six months following the day on which it is made unless the appeal is finally decided earlier and nothing in the order dispensing with such deposit which has ceased to have effect shall debar the appropriate officer to recover the amounts of the duty demanded or penalty levied.

As per assertion of the learned counsel for the appellant section 195-B of the Customs Act, 1969 is directory and permissive in nature, therefore, the appeal cannot be dismissed by the Collector (Appeals) merely on the basis of non deposit of customs duty or penalty. On the other hand the learned counsel for the respondent claimed that the said provision is imperative and obligatory as it uses the word "shall" Although it is correct that the use of words like "shall" or "must" are generally considered as mandatory but it is equally well settled that the words "shall" and "may" depending upon the context in which they have been used are often interchangeable. The Hon'ble Supreme Court of Pakistan in (PLD 1972 SC 326) was pleased to hold as under:--

"It is now well settled that the words "may" and "shall" in legal phraseology are interchangeable depending on the context in which they are used and or not to be interpreted with the rigidity which is attributed to them in ordinary parlance".

Although section 195-B of the Customs Act, 1969 while directing the deposit of amount of duty in respect of goods which are not under the control of the Customs authorities or any penalty levied under this Act uses expression ''shall", it is silent about the consequences flowing out of its non-compliance. Another well accepted principle of interpretation which becomes applicable is that as the language of section 195-B of the Customs Act, 1969 is in affirmative and not negative, it is deemed to be directory and not mandatory. So it emerges from the above that section 195-B of the Customs Act, 1969 is directory and not mandatory character.

The plain reading of section 195-B of the Customs Act, 1969 reveals that in any appeal before the learned Collector (Appeals) or this Tribunal where the decision or order under dispute related to any duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied which are not under the control of the Customs (Appeals) or this Tribunal where the decision or order under dispute relates to any duty demanded in respect of goods which are not under the control of the Customs authorities or any penalty levied under the control of the Customs authorities or any penalty levied under this Act, appellant, during the pendency of the appeal, is required to deposit with the proper officer the duty demanded or the penalty levied unless it is dispensed with by him, or as the case may be, otherwise the functionaries of Customs are empowered to recover the said amount of duty or penalty under the relevant provisions of the Customs Act, 1969. Non-compliance of section 195-B exercised under sections 193and194-A of the Customs Act, 1969. Even otherwise in the present case neither the Customs authorities attempted to recover duty/penalty during the pendency of appeal, nor the learned Collector (Appeals) directed the appellant for depositing the same before dismissing the appeal on account of non-compliance of section 195-B of the Customs Act, 1969, however, the case-law relied 2012 PTD (Trib.) 1913 is also fully applicable upon by the appellants case, therefore, the right of appeal cannot be taken away even that right is protected under. Article 10-A of the Constitution of Pakistan 1973 (18th amendment), in these circumstances we prefer to answer the issue No.(i) in negative.

11.As regards to issue No. (ii) it is apparent on record that investigation, detection were made and reported vide an F.I.R. No. Sl/ Misc/785/20091PQ-III lodged on dated 17-7-2009 in the alleged offence of fiscal fraud/tax evasion, admittedly, the show-cause notice was issued on dated 26-1-2011 for initiation of proceedings under section 32A of the Customs Act, 1969 that has also been stated in the impugned order-in-original and in para-wise comments of the respondents at para-n. Under provision of subsection (2) of section 32A show-cause notice is required to be served within 180 days from the date of detection of such customs duty and fiscal/tax fraud. The superior courts have held in number of decisions and judgments that when a period of limitation is provided by a special statute, that has, to be taken within the stipulated period and within the parameters of such statutory provisions and it is also held by the Hon'able Supreme Court of Pakistan in case of Assistant Collector v. Khyber Electric Lamps 2001 SCMR 838 that "A thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all". The Hon'able Supreme Court of Pakistan has also held in case of Federation v. Ibrahim Textile 1992 SCMR 1898 that "if a law prescribed period of time for recovery of money, after it's lapse recovery is not enforceable through Courts while construing a financial statute, it's terms are strictly to be followed". The principle has been followed by the other Courts in number of decisions/judgments referred as 2009 PTD 2004, 2009 PTD 1978 etc. In the instant case the show-cause notice was issued beyond the period of limitation prescribed under subsection (2) of section 32A with lapse of 377 days, it is held that show-cause notice issued by the notifying authority was patently illegal, without jurisdiction and lawful authority. As such all subsequent proceedings and orders based thereupon are laible to be set aside being without jurisdiction. As per legal and factual position and referred judgments of superior courts and finds the arguments of the appellant's counsel sustainable, we decide the issue No.(ii) in affirmative.

12.As regards to issued No.(iii) it is apparent from the show-cause notice that it doesn't contained the specific allegations against the appellant who was subsequently implicated in the case through a corrigendum. The competency of notifying/adjudicating authority is questionable and stood apparent from contents of show-cause notice wherein the reference of irrelevant F.I.R. and it's date has been mentioned either. Through a corrigendum which can be issued under section 206 for correction of any clerical or arithmetical error only, but, in this case he tried to cure illegalities committed by him in the charge sheet i.e. show-cause notice. We are of the opinion that the question of validity and service of show-cause notice and initiation of legal proceedings is a pure question of law going to the root of the matter. We again emphasis on the judgment of Hon'able Supreme Court of Pakistan in case of Assistant Collector v. Khyber Electric Lamps 2001 SCMR 838 wherein it has been held that "A thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all". The Hon'able Supreme Court of Pakistan has also held in case of Federation v. Ibrahim Textile 92 SCMR 1898 that "while construing a financial statute, it's terms are strictly to be followed". Admittedly, no statutory show-cause notice was served on the appellant in the manner prescribed under section 32A(2) of the Customs Act, 1969. The Act of issuing corrigendum by the notifying/adjudicating authority to initiate proceedings against the appellant under section 32A substantiated the fact that he proceeded in very perfunctory manner without application of independent mind, instead with mala fide intention and intellectual dishonestly. The arguments of the appellant's counsel remained un-rebutted on part of the D/R and found sustainable. We observed all proceedings and orders without jurisdiction and lawful authority being based on illegal corrigendum rather than a statutory show-cause notice. Therefore, on, the base of our finding the issue No.(iii) decided affirmative.

13.As regards to issue No. (iv), We examined the record of the case as well as the proceedings of the Adjudicating Officer. It has been observed that nothing has been placed on record by the prosecution department which could prove that appellant was criminally linked with the accused PRAL officials Kashif Ahmed, Abdul Qadir. No iota of evidence has been placed on record which could establish criminal link of the appellant with the main accused Jamil Ahmed son ofBashir Ahmed who has also been found involved in another case identical in nature reported vide F.I.R. No.SI/Misc/22/2008-PQ(IMP) lodged on dated 8-11-2008, it on record that said accused Jamil Ahmed has approached to the respondents and conceded the offence and sought compounding under section 32B of the Customs Act, 1969. It is also admitted fact that all payments of duty/taxes in respect of alleged consignments were made by the said accused Jamil Ahmed and the documents and record of alleged consignments were alsorecovered from him. The customs clearance of alleged consignments mentioned in the show-cause notice has not been established to be sought by the appellant through any material evidence. It is settled law that standard of proof required in such proceedings which are criminal in nature which requires proof beyond all reasonable doubt as held by the Sindh High Court judgment in it's judgment in case of Kamran Industries v. Collector PLD 1996 Kar. 68. In the instant case such evidences endowed with probative value to establish the guilt of the appellant beyond all reasonable doubt as hardly been led. The D/R on a question by us in this respect has not been able to point out to any such evidence or proof. The charge of fiscal fraud/tax evasion under section 32A has been framed against the appellant without establishing mens rea through any material evidence or proof which establishes the argument of the A/R that whole case has been built on some assumption or presumption which is unwarranted in law and the referred judgment of High Court of Sindh in case of Al-Hilal Motors 2004 PTD 868 is fully applicable. As per settled law prosecution department must establish the allegation levelled in the show-cause notice beyond any shadow of doubt otherwise benefit of doubt how slightest it may go to the accused, but, in the instant case prosecution department has failed to make out such a case against the appellant, therefore, of doubt in this case goes to the appellant as per referred reported case PTCL 2009 CL 676(sic). We concludes that impugned findings and orders of authorities below are perverse, arbitrary and based upon no evidence and the issued (iv) is decided as negative.

14.We decide the appeal of the appellant on the above terms and conditions and observations as per the issues decided thereon and set aside the impugned orders accordingly, with no order as to cost.

15.Order passed accordingly.

JJK/13/Tax(Trib.)Order accordingly.