QADRI HAJVERI GOODS FORWARDING AGENCY (REGD.), LAHORE VS DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION-FBR, SUKKER, 2014 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1566 (2013)

2014 P T D (Trib.) 1566

[Customs Appellate Tribunal]

Before Muhammad Nadeem Qureshi Member (Judicial)-I) and Ghulam Ahmed Member (Technical-II)

Messrs QADRI HAJVERI GOODS FORWARDING AGENCY (REGD.), LAHORE

Versus

DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION-FBR, SUKKER and 2 others

Customs Appeal No.K-339 of 2012, decided on 29/10/2013.

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

----Ss.168(1), (2), 177, 180 & 194-A---Seizure of goods/consignment from the possession of carrier---Carrier/transporter of consignment filed appeal---Locus standi---Respondents/customs authorities intercepted the carrier/appellant and detained transported goods of his clients on account of the charge of smuggling---Appellant/carrier challenged the order-in-original before Appellate Tribunal---Objection was raised on the locus standi of carrier as he was not owner of the detained goods---Validity---Being transporter, carrier was custodian of the goods and received the same from shipper as amanah for delivering in safe and sound condition to the recipient upon surrendering the bilties (delivery orders)---Non-delivery of the goods to the consignee had serious consequences because when any consignment was entrusted to a carrier to a port of destination, then it was carrier s bounden duty to ensure that consignment reached designated port---If shipment did not reach its destination or even if it did reach its destination but on account of negligence of carrier or its agent; the same was lost or mis-delivered and the real consignee or the endorsee of the bill of lading did not get the delivery of consignment, then the carrier was answerable to the shipper or consignee or the endorsee of the bill of lading for the loss of shipment---Carrier in such condition could not absolve itself of the obligation by shifting its responsibility on the port authorities---Shipper or consignee or the endorsee of the bill of lading had every right to claim from the carrier compensation as well as damages for the lost consignment and carrier was to compensatethemforvalueofgoodsas for a claim of damages which they had sustained on account ofnon-delivery of consignment---Appellant/carrier, in circumstances, had/enjoyed locus standi for filing appeal before Appellate Tribunal.

Adam Holding Ltd. v. Global Container Line (Bahamas Ltd.) 2006 CLC 1511 ref.

Collector of Customs (Preventive) and 2 others v. Muhammad Mehfooz PLD 1991 SC 630 and 2005 PTD (Trib.) 135 ref.

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

----Ss. 168(1), (2) & 177---Smuggled goods, confiscation of---Scope---None of the seized goods were specifically mentioned in the definition of smuggled as provided in Customs Act, 1969 nor the same were brought into Pakistan via route other than one declared or from aplaceotherthana Customs-station ,thereforethematterwouldnot come within the ambit of smuggling ---Goods in question (interceptedanddetained)werenottransportedbytheappellantwithin five miles of Indian and Iran borders, instead from Rohri tool plaza at National High Way, while the same were transporting from Lahore to Karachi---Transporting of the goods by the appellant did not fall within the meaning of smuggling and not the goods as smuggled .

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

----S.168(1)(2)---Smuggling of goods---Seizure of smuggled goods---Goods were transported through lawfully registered conveyance---Effect---Container or vehicle through which the appellant was transporting goods had no hidden or false cavities made for the time being or artificially made, instead at the hind of vehicle openly and due to the said reason the official of the Customs released the vehicle without any hitch or hindrance---Neither the appellant was involved in any type of smuggling nor the goods transported by him were smuggled goods ---Interception of vehicle, detention and seizure of goods was nullity in law in circumstances.

Noor Muhammad v. Deputy Collector of Customs, (Adjudication), Hyderabad Customs Appeal No.H-185 of 2009 Lahore High Court and 2010 PTD 2015 rel.

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

----S.2(s)---Smuggled goods---Items alleged to be smuggled were freely available in the open market---Effect---Items alleged to be smuggled by the prosecution were freely available in the open market and the import of such goods were not banned in the country, presumption could be that the goods in question were lawfully brought in the country and duty paid unless contrary was shown---Demand of customs officials to produce legal import document was nothing but to put undue pressure on the business community.

Sikandar A. Karim v. The State 1995 SCMR 387 rel.

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

----Ss.187 & 2(s)---Qanun-e-Shahadat (10 of 1984), Art.117 & 121---Smuggling of goods---Burden of proof---Scope---Appellant had submitted copies of respective goods declaration and purchased receipt with the customs authorities, after detention of goods---Appellant had discharged the burden of proof laid upon him---Respondent/customs authorities had failed to prove the charge of smuggling or transportation of smuggled goods as the same stood shifted on their shoulders---Person levelling the allegation was responsible to prove the same.

PLD 1996 Kar. 68and2012 PTD 428 rel.

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

----S.2(s)---Release of smuggled goods on payment of fine---Powers and authority---Scope---Customs authorities were not empowered to release the smuggled goods upon payment of fine---No option could be givento pay fine in lieu of confiscation in respect of smuggled goods.

2003 PTD (Trib.) 928; 2010 PTD 1515 and2009 PTD (Trib.) 2025 ref.

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

----S. 179(3)---Confiscation of smuggled goods---Impugned order-in-original was passed after the expiry of prescribed time period---Effect---Order-in-original should have been passed within One Hundred and Twenty days from the date of issuance of show cause notice or within a further extended period of Sixty days due to emergence of exceptional circumstances prior to expiry of initial period after serving a notice to the person concerned---Impugned order-in-original was passed after the expiry of initial period without any extension as evident from theorder---Impugned order-in-original was barred by time and as such was without power/jurisdiction and not enforceable under law---Appeal was allowed.

1999 SCMR 1881 rel.

(h) Administration of justice---

----Doctrines of "binding precedents" and "Stare Decisis ---Applicability---Scope---Judgments delivered by the superior judicial fora and the provisions relating thereto are mandatory in nature for implementation by all subordinate judicial and quasi judicial forum.

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

----S. 194A---Constitution of Pakistan, Art. 254---Appeal---Non-observance of time limit prescribed under provisions of Customs Act, 1969---Effect---Order-in-appeal was time barred---Customs officials by relying on Art.254 of the Constitution, contended that prescribed time period was administrative and directory in nature and not mandatory, therefore delay in passing order would not render the same as illegal---Validity---Article 254 of the Constitution was general in nature and did not specify or rebut the statutory provisions contained in special/ specific Acts, otherwise there was no requirement for legislature to prescribe different limitation periods for different statues---Redundancy could not be attributed to statutory prescribed time limits---Impugned orders were declared illegal---Appeal was allowed.

2007 PTD 117;Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and another 2008 PTD 60; 1999 SCMR 1881; Nagina Silk Mills Lyallpur v. The Income Tax Officer and the Income Tax Appellate Tribunal, Pakistan PLD 1963 SC 322; 2006 PTD 340; PTCL 2005 CL 841; 1992 SCMR 1898; 2009 SCMR 1126; 2002 MLD 180; 2003 PTD 1354; 2003 PTD 1797; 2008 PTD 578; 2009 PTD 762; 2009 PTD (Trib.) 107; (2010) 109 Taxation 221(sic); 2004 PTD 369; 1998 MLD 650; 2005 PTD 23; 2003 PTD 2821; 2004 PTD (Trib.) 2898; 2007 PTD 2092; 2008 PTD 60; 2009 PTD (Trib.) 1263; 2009 PTD 1978; 2011 PTD (Trib.) 1010; 2011 PTD (Trib.) 987; 2011 PTD (Trib.) 79 and 2012 PTD (Trib.) 1650 rel.

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

----Ch. XVIII [Ss.158 to 192]---Draft show cause notice---Proceeding before customs authorities, nature and scope---Proceedings before Adjudication Officer were in the nature of quasi judicial and issuance of show cause notice was very important document---Decision to issue show cause notice was to be taken by the Collector, Adjudication by application of independent mind and not merely signing the draft show cause notice submitted by investigating agency separate from the Adjudication Department---Each category of Customs officers were required to perform their respective functions/duties under the law---Practice to submit draft show cause notice by the Director General of Intelligence and Investigation to the Collector Adjudication was depricated.

Messrs Zeb Traders, Karachi v. Federation of Pakistan 2004 PTD 369 rel.

Nadeem Ahmed Mirza Consultant/A.R. for Appellant.

Syed Munawar Hussain (Investigating Officer) for Respondent.

Date of hearings: 19th December, 2012.

ORDER

GHULAM AHMED (MEMBER TECHNICAL-II).---This order shall dispose of the instant appeal filed by Messrs Qadri Hajveri Goods Forwarding Agency (Regd), Lahore, against Order-in-Appeal No.6065/2012 dated 15-05-2012, passed by the Collector of Customs (Appeals), Karachi against the Order-in-Original No. 20/2011 dated 5-9-2011, passed by the Additional Collector, Model Customs Collectorate, Customs House, Hyderabad.

2.Brief facts of the case that the staff of Directorate of Intelligence & Investigation-FBR, Regional Office, Sukkur, intercepted a Trailer Container bearing registration No. Z-3349 at G.T. Road near Toll Plaza, Rohri loaded goods i.e. Crockery, body spray, shampoo, face lotion, bath soap, cigarette lighters, Iron etc. along with local misc. parchoon goods coming from Lahore to Karachi. The driver of the Trailer produced one bilty No. 04032/552 showing dispatch of Pakistan Origin paper rims issued by the appellant. But he was enable to produce any legal document regarding lawful possession of the aforesaid loaded foreign origin goods, therefore, the same were detained and detention memo was served accordingly. The superintendent reported that "in view of the above facts it is quite clear that the recovered foreign origin goods are smuggled" which were brought into the country without payment of duty and taxes, therefore, the goods were seized under the relevant provisions of law.

3.That on the basis of report the appellant was accordingly charged under the relevant provisions of law through a show cause notice, which was replied vide letter dated 28-11-2011 and addendum dated 27-1-2012 controverting interception detention, seizure of the transported goods and the charges leveled therein. The respondent No. 1 disagreed with the contention of the appellant and passed order-in-original dated 25-11-2011 holding that the goods transported by the appellant are smuggled goods.

4.Messrs Nadeem and Company, Karachi on behalf of Messrs Qaderi Hajveri Goods forwarding Agency, Lahore has sent another letter bearing No. NC/GHGFA/ADCA(MCCH)/708/07/2011 dated 5-7-2011 wherein the seizure of goods by the Directorate of Intelligence and Investigation-FBR, Range Office Sukker and subsequent issuance of the show-cause notice of this office has been termed as nullity of law. The consultant has requested for the vacation of the show cause notice.

5.I have examined the case record, considered the verbal as well as written arguments of both sides. Consequently I do conclude as under:--

The goods covered under Bility Nos. 09886/83 and 09885/65

(i)Messrs Fazal Enterprises on receiving the Show cause notice have provided import documents on the basis of which they claimed that the goods booked under bilities No. 09886/83 and 09885/65 were imported and cleared form Mughalpura Dry Port, Lahore o payment of duty and taxes. To substantiate his claim M/s. Fazal Enterprises, Karachi provided 07 GD's at mentioned at para 21 of this order. The Seizing Agency was directed to examine these GD's to ascertain the relevance of these GD's with the seized goods claimed by M/s. Fazal Enterprises, Lahore. The seizing Agency vide their letter C.No. 10(I)DCI/SK/Cus/2011/319 dated 1-8-2011 have reported that " a careful scrutiny of the import documents and above mentioned registers, led to the concussion that the seized goods of M/s. Fazal Enterprises do tally with the documents of import. The registers of stock purchase and sale were also cross checked with the documents of import and which were also found updated and correct."

(ii)In consideration of the confirmation by the Seizing Agency regarding the relevance and validity of the produced documents there remains no dispute about the legal import of these goods. Therefore, I do hereby order to release these goods to M/s. Fazal Enterprises, Lahore.

The goods covered under Bility No. 03524 & 03525

(iii) One Mr. Muhammad Anees has claimed the ownership of 45 pieces of National Electric irons and 90 pieces or small National local made iron of inferior quality (Bility Nos. 03524 & 03525) which he claims were purchased from local market, Lahore. The seizing Agency replying to the claim of Mr. Muhammad Anees has stated that the country of origin is embossed on the seized items. The seizing Agency is of the view that if it is supposed that irons are local made then why made in Japan is written on these irons. The Seizing Agency has requested to confiscate the seized counterfeit irons.

(iv)In consideration of the fact that the owner of these irons is a small shopkeeper and he has purchased these goods from local market of Lahore. I am inclined to take a lenient view. The goods are confiscated, however an option is given to the owner of the seized goods to redeem the same on payment of redemption fine equivalent to 10% of the value of the seized goods in addition to duty and taxes chargeable thereon to be ascertained by the Customs Dry Port, Hyserabad. If the owner fails to availe the redemption fine option within two months of the issuance o this order, the goods shall stand confiscated outright.

The goods covered under Bility No. 3515/30, 4031/10, 3510/02, 3513/15, 3526/12, 3518/19, 4029/128/129, 4028/79, 3519/20, 3514/13, 3508/03, 3521/02, 3517/25, 3516/2563, 3520/15, 3525/21 and goods without bility Nos. mentioned at serial No. 9, 17,18,21, and 25 of the Seizure Report.

(v)Coming to the view point of third defendant which has been communicated by the consultant M/s. Nadeem and Co, Karachi I do find the at the consultant has tried to skirt the allegation of smuggling and the illegal entry of the goods into the country. The consultant has raised irrelevant legal issues instead of taking the allegation head on. The legal objection raised by him before the Hon'ble Federal Tax Ombudsman have been reiterated before this forum. These objections were properly responded by the Directorate of Intelligence and Investigation-FBR Karachi in their parawise comments submitted before the Hon'ble Federal Tax Ombudsman in Complaint No. 133/KHI/CUST(52)/341/ 2011. The Hon'ble FTO vide decision/findings dated 1-6-2011 was pleased to reject the complaint of M/s. Qaderi Hajveri Good Forwarding Agency, Lahore filed through M/s. Nadeem & Company, consultant, Karachi. It will be pertinent to reproduce here para 9 of the Hon'ble FTO's decision.

"The jurisdiction of Directorate General Intelligence and Investigation relating to smuggling, evasion of taxes and removal of dutiable goods could not be denied. Similarly, the adjudication proceeding on the basis of report by the Directorate General, intelligence and Investigation are within the parameters of Customs Act. In such view of the matter, the contention of the AR that seizure of goods during transportation within the country was illegal could not be given much weight. Reliance on judgment of the superior courts also appeared to be misplaced as the case law relied by the Complainant was distinguishable on facts as well as law points. To the contrary, the Department filed a copy of judgment of Hon'ble Supreme Court dated 30-9-2009 in Customs Appeal No. 277/2002 and copy of judgments of the Hon'ble Peshawar High Court Peshawar dated 8-10-2003 in F.A.O No. 90/2002 having similar facts and law points. The Hon'ble Supreme Court held the seizure and confiscation of old motor parts being transported from Quetta to Jacobabad valid the Hon'ble Peshawar High Court also held confiscation of tea being transported in a truck and seized by police of Police Station Naurang as legal. The plea of the Complainant could possibly be entertained upon production of relevant import documents to the extent of crockery and other goods for which the documents were produced nor was the duty and taxes paid."

(vi)The seizing Agency vide their letter No. 10(I)/DCI/SK/Cus/2011/369 dated 27-8-2011 have communicated their view points as under;

(1)"it is submitted that the items claimed by Qadri Hajveri Goods Forwarding Agency, Lahore shown at S.No. 17,18,25 and 26 of the seizure report in the column of description of seized goods are covered under section 2(s) of the Customs Act, 1969 and the Notification S.R.O. 566(I)/2005 dated 6-6-2005, the CIF value of each item thereof is given below:

S.NO	DESCRIPTION OF GOODS	QTY	CIF VALUE
17	Without Bilty No Flavia Soap (150 gms) made in Turkey 45 cartons each caton contains 48 pcs	2160 Pcs	43000
18	Without Bilty No LOREAL Kids Shampoos (265 ml) (USA) 16 cartons each cartons contains 12 pcs	192 Pcs	26000
25	Without Bilty No LUV Luxury Soap (1.0 gm) made in Oman 80 cartons each carton contains 04 Dozens)	3840 Pcs	76000
26	Bilty No. 3520/15 Pantene Shampoos Cachets (Saudi Arabia)	64800 Pcs	86000

The total value of the above items falling in the ambit of section 2(s) of Customs Act, 1969 claimed by the above named claimant comes to Rs. 231,000.00

2.It is informed that the above mentioned items do claimed by M/s. Qadri Hajveri Goods Forwarding Agency, Lahore are covered under S.R.O. 499(I)/2009 dated 13-6-2009 as mentioned at para (a) of the said SRO. It is respectfully added that the CIF value of the goods claimed by the said claimant is Rs. 231000/- therefore the items stated above fall in the ambit of section 2(s) of the Customs Act, 1969."

Consequently the goods covered under (without bility No.. (3 items as specified under the preceding sub para (sub para No. vi) and the Bilty No. 3520/15 are confiscated outright for the violation of section 2(s) 16 and 168 of the Customs Act, 1969 read with S.R.O. 566(I)/2005 dated 6-6-2005 further read with section 3(1) of Imports and Exports (Control Act, 1950. Therefore the same are confiscated outright in terms of clauses (8) and (89) of section 156(I) of the Customs Act, 1969.

(vii)Other goods except the goods specified under preceding sub para (sub para No vii) owned by M/s. Qaderi Hajveri goods Agency, Lahore are confiscated as I am inclined to agree with the view point of the seizing Agency that the goods covered under above mentioned bilties were brought into the country without payment of duty and taxes in terms of clause (90) of section 156(I)/ of the Customs Act, 1969. However the owner is given an option to redeem the goods on payment of redemption fine equivalent to 20% of the ascertained value of the goods in addition to chargeable duty and taxes. Redemption option shall remain valid for two months from the issue date of this order. After the lapse of two months the goods shall stand confiscated outright.

6.The appellant against Order-in-Original No. 20/2011 dated 5-9-2011 filed an appeal before the learned Collector of Customs (Appeals), Hyderabad, who disposed it vide order dated 15-5-2012, the operative paras 6 and 7 of the impugned order read as under:-

"6- I have carefully considered the written and verbal submission of the rival. Learned counsel for the appellant argued that the confiscated goods are backed by legal import documents which he provided and same are placed on record. The respondents on the contrary argue that these goods are smuggled and without any legal import backing whatsoever. After careful examination of the grounds of appeal and the said documents I feel that these do not accord any legal status or provide cover to the seized/confiscated goods. hence these cannot be accepted as credible/reliable evidence. Moreover, I am of the view that the judgment of the Superior Courts and other Forum quoted by the appellant have no bearing on the facts and circumstances of this particular case".

"7- It is observed that the adjudicating authority has already taken a lenient view and as allowed the release of impugned goods to other claimant in terms of section 181 of the Customs Act, 1969 read with S.R.O. 499(I)/2009 dated 15-6-2009 on payment of fine along with leviable duty and taxes. Accordingly, in all fairness, the appellant also deserved similar treatment which was denied to them by the adjudicating officer, since most of the goods claimed by the appellant were confiscated outright without giving them the option of release of the impugned goods against redemption fine etc. Thus, I rule that the appellant are free to get their confiscated goods released in terms of section 181 of the Customs Act, 1969 read with S.R.O. 499(I)/2009 dated 15-6-2009, on payment of 20% redemption fine along with leviable duty and taxes. The respondent have not given any cogent reason which could defend their earlier stance of outright confiscation of the goods as communicated in the order-in-original. however they have now consented to the relief being offered to the appellant."-

7.The appellant has now challenged the above order by way of this appeal on the strength of grounds taken in the memo of appeal reading inter-alia :

The respondent Nos. 1 and 2 in order dated 5-9-2011 and 15-5-2012 failed to distinguish or discuss the law including citation, instead made academic discussion of personal nature in regards to fiscal statute, which is not sustainable in comparison to the Law and the judgment of Hon'ble Superior Courts of Pakistan. Hence erred in passing the orders and these are not sustainable in law as these are clearly contrary to the Law/Rules, being erroneous and not in consonance of law, equity and natural justice and the said fact further stood validated from the following:--

(i)That instead of deciding the case within the parameter of law and dictum laid down by the Superior Courts of Pakistan, which are binding on all the citizen of Pakistan including the hierarchy of customs under Article 189, 190 & 201 of Constitution of Islamic Republic of Pakistan. The respondent No. 2 discarded all the citation submitted with the reply to the show cause notice as Exhibit "G to AF" at pages 42 to 245. Instead took refuge before the order of the Hon'ble Federal Tax Ombudsman, while incorporating a portion of that in sub para (v) of para 33 of the Order-in-Original, The said finding/ recommendation has no binding force and neither can influence the proceeding before him. The respondent No. 2 also failed to consider the fact that the cases referred by the Advisor to the FTO in the finding were not relevant in the case of appellant rather were of exceptional circumstances, beside those were not confronted with the appellant. Even otherwise proceeding before FTO and respondent No. 2 are independent of each other and least cast influenced on the proceeding conducted by the respondent No. 2. Nevertheless, appellant state for the sake of regularization that the order of the FTO cannot be relied upon as citation as it has no binding force by virtue of non-availability of legal sanction. Beside the order of the FTO was not correct and was devoid from legal infirmity and partial/discriminatory as evident from reported judgment 2011 PTD 1205, 2011 PTD 1425, Finding/recommendation in complaint No. 491/KHI/Cus(243)/1243/11 & 492/KHI/Cus(244)/1244/11 dated 29-11-2011 and therefore the appellant challenged it virus before President of Pakistan through a representation dated 27-6-2011 under section 32 of the Ordinance No. XXXV of 2000, resultant the finding/recommendation stood stayed. Putting reliance on that is patently illegal and void. (Exhibit "P" and "Q")

(ii)That since the respondent No. 2 has relied upon the finding/ recommendation of the FTO, while passing order-in-original, it is felt appropriate for the appellant to comment on the veracity and legality on that prior to giving rebuttle on the impugned show cause notice and order-in-original for proving that the order of the FTO was based on mala fide and intellectual dishonesty

(a)That during the hearing the Advisor to the Hon'ble Federal Tax Ombudsman when felt that the complaint of the appellant is correct and the act of respondent No. 1 and respondent No. 2 are contrary to the law, Rules and Regulation and well supported by the judgments of Superior Courts of Pakistan and he has no reason or cause to dismiss that. He put his word in the mouth of the official of respondent No. 1, that there exist a judgment of High Court of Peshawar, wherein the act and commission of the respondent No. 1 is held valid, the same should be provided to him and a copy of the same to the appellant consultant. To which the consultant objected and advised the learned Advisor to be fair and independent and not part with the official of respondent No. 1, Upon this he became hostile and concluded the hearing. Nevertheless, the said judgment has not been supplied to this date to the consultant, instead the same was obtained by the consultant of the appellant, after receipt of finding/recommendation. Any decision on the basis of judgment provided at the back of appellant is bad in law as the same defeat the norms of justice, fairplay and independence.

(b)That while ignoring the judgment supplied by the appellant vide letter dated 9-4-2011 and hand delivered during the hearing conducted on 26-4-2011. The learned Advisor to the FTO relied in Para 9 of the finding/recommendation on a judgment of Hon'ble Supreme Court in Customs Appeal No. 277 of 2002. Wherein, the Hon'ble Supreme Court held the seizure and confiscation of old motor parts transported from Quetta to Jaccobabad as valid. The appellant also agrees to that because the item so transported are included in the list of smuggled goods items at serial No. 1 of Notification No. 566(I)/2005 dated 6-6-2005. Meaning thereby that auto-parts whether used, old and new are to be termed as smuggled unless proven otherwise. To the contrary, the appellant detained goods also included an item listed at serial No. 27 of the notification i.e. cotton yarn, which was detained and subsequently released including with paper corresponding to bilties Nos. 802, 4001, 4032, 2543 and 2551, on the plea that cotton yarn and paper are locally made irrespective of the fact that the cotton yarn and paper is also imported in bulk. Rendering the detention and release of cotton yarn as nullity to the provision of Customs Act, 1969 and Notification No.566(I)/2005 dated 6-6-2005.

(c)That in the same Para the learned Advisor to the Hon'ble FTO referred to the judgment of Peshawar High Court in F.A.O No.90 of 2002, which was obtained by him from the official of respondent No.1. While stating that the same is having similar facts and law point as has been raised by the applicant. That in principal it was mandated upon the learned Advisor not to rely on the said judgment as no copy of the judgment was supplied to the appellant for comments. Nevertheless, the appellant state that the subject judgment least have similar facts and law points. In fact the said judgment does not correspond to the goods (black-tea mentioned at serial No.35 of S.R.O. 565(I)/2005 Exhibit "R") loaded on the carrier, instead for the carrier (Truck). Which was ordered to be released to the lawful owner on the redemption money of Rs.300,000.00 by the Adjudicating Authority. The said order was assailed before the Customs, Central Excise and Sales Tax Appellate Tribunal by the Customs. The Tribunal allowed the appeal and setaside the order of the Adjudicating authority. Consequent to which the owner of the truck assailed the said order before the Hon'ble High Court of Peshawar vide F.A.O. No. 90 of 2002. Which allowed the appeal of the truck owner and set aside the order of the Tribunal and restored the order of Adjudicating Authority. Which was subsequently, challenged by the Customs before the Hon'ble Supreme Court of Pakistan through CPLA No. 419-P of 2002. Which remanded the case to Hon'ble High Court of Peshawar for decision in 3 issues. On remand the Hon'ble High Court of Peshawar answered the issues framed by the Hon'ble Supreme Court and once again maintained its earlier order vide order dated 28-10-2003, i.e. setting aside order of the Tribunal and restoring order of the Adjudicating Authority.

(d)That the above submission and the copy of judgment confirms that the incorporation made in para.9 of the finding/ recommendation is based on mala fide as the learned Advisor only discussed the goods loaded on the truck, for which the Hon'ble Supreme Court framed the issue but not the carrier on which the goods were loaded and to which the said F.A.O. relates. Instead the learned Advisor to the Hon'ble FTO concealed the said fact and made a mutilated submission for deceiving the Hon'ble FTO and for dismissing the appellant complaint despite correct in fact and law. Beside the learned Advisor also concealed the fact in the finding/recommendation that the carrier/trailer on which the detained/seized goods were transported by the appellant had already been released by the respondent No. 1 because the said fact nullify the allegations leveled by the respondent No. 1 and respondents because in case the goods were smuggled, there was no cause or reason to release the trailer/carrier, in terms of condition (b) of Notification No. 499(I)/2009 dated 13-6-2009

(iii)The appellant now revert to the rebuttle on the impugned show cause notice and the order-in-original issued/passed by the respondent No. 2 to/against the appellant, which fails to answer the allegation leveled/held therein, while submitting as under:

(a)That upon receipt of the contravention report, it was mandated upon the respondent No. 2 to look into the actual facts of the case and the applicable provision of the Act, Rules and Regulation independently and fairly. Instead he completely relied upon the version of the officials of respondent No. 1 and mechanically signed the show cause notice on the basis of the contravention report forwarded to him by the official of the respondent No. 1, rendering it nullity to the law laid down by the Superior Courts of Pakistan. Reliance is placed on the reported judgment 2004 PTD 369 Messrs Zeb Traders v. Federation of Pakistan. Wherein their lordship of the High Court held in unambiguous terms that:

"The proceeding before Adjudicating Officer, under the Customs Act, 1969 are in the nature of quasi judicial proceedings and issuance of notice under section 180 of the Customs Act, is very important documents. The decision to issue show cause notice is to be taken by the Collector, Adjudication, by application of independent mind and not merely signing the draft show cause notice submitted by the investigation agency separate from the Adjudication Department and each category of officers are required to perform their respective functions/duties under the law. The practice to submit draft show cause notice by the Director General of Intelligence and Investigation to the Collector Adjudication is depreciated."

(b)That since the show cause notice and order-in-original issued/ passed by respondent No. 2 in the present shape are void of all legalities as these does not provide valid reasoning and incriminating evidences for determination of leveled charges beside it is nullity to the laid down dictum by the Superior Courts of Pakistan. The appellant consultant through several letters requested the respondent No. 2 to substantiate the leveled allegation. Instead completely failed to justify the illegal act of the officials of the respondent No. 1 and the issuance of the instant show cause notice on the basis of false and mutilated facts. Rendering the show cause notice and subsequent order-in-original and appeal as ab inito, null and void on the face of it, which stood substantiated from the foregoing:

(i) That intercepting goods transported with in the territory of Pakistan, by the respondent No. 1 is tantamount to abuse of power as no interception can be made unless a provision exist in the Act or any notification is infield directing the transporter to obtain documents of import or purchase prior to booking of the goods meant for transportation within the territory of Pakistan and the driver of the trailer/carrier should contains those documents during the journey. No such section is available in the Act and nor any notification is in field. Resultant interception of the transported goods at Rohri Tool Plaza, Sukkur by the officer of respondent No. 1 is patently illegal rather confirms without any ambiguity abuse of power and high handedness.

(ii) That irrespective of the referred in above illegality it is appropriate for the appellant to state that it was mandated upon the respondent No. 1 to act within the frame work of the definition of the word "smuggle" given in subsection 2(s) of the Customs Act, 1969. For ease verbatim of the same is reproduced here-in-under:

(a) "smuggle" means to bring into or take out of Pakistan in breech of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon,

(i) Gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and pyschotropic substances; or

(ii) Manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed [one hundred and] [fifty thousand rupees] in value or

(iii) Any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly.]

(b) That customs ports etc. as expressed in clause (iii) of section 2(s) are notified through various notifications in terms of section 9 of Customs Act, 1969. Whereas, the border area of Pakistan Territory, whereas restriction on the possession of goods in certain areas (borders) as expressed in section 177 ibid is also notified vide Notification No. S.R.O.118(I)/83 dated 12-2-1983, ear marking the area of 5 miles adjacent to the Frontier of Pakistan with India and Iran to be the area to which section 177 of the Customs Act, 1969 shall apply

(c)That the goods transported by the appellant were within the territory of Pakistan and those were not brought into Pakistan in breach of any prohibition or restriction for the time being in force under the Import Policy Order, 2009 or while evading payment of customs duties leviable thereon as expressed in clause (a) of section 2(s). Nor were brought into Pakistan by any other route then the routes expressed in section 9 or 10 of the Customs Act, 1969 or from any other place then a customs station as per clause (a)(iii) of section 2(s) instead were transported from Lahore to Karachi through proper bilties and those cannot be considered as smuggled by any stretch of imagination. Hence interruption of carrier loaded with the goods, their detention and seizure subsequently for the purpose of adjudication is nullity to the definition of the word "Smuggle" rendering the entire act of the respondent No. 1 and the respondent No. 2 & 3 right from interruption till issuance of show cause notice and subsequently passing order-in-original/ appeal on that as ab inito, null and void.

(d)That it is also imperative for the appellant to add that in the light of expressed provision of section 2(s) and section 177 of the Customs Act, 1969 and S.R.O. 118(I)/83 confirms that the transportation of goods within the territorial limit of Pakistan do not constitute an offence, meaning thereby that transportation of goods from Lahore to Karachi through National High Way supported by valid bilties and interruption of those at Rohri Bypass Sukkur by the respondent No. 1 cannot be termed as smuggling. It would also not be out of place to state that after clearance of the goods from Customs, either from Area of Sea Port or Dry Port, they are out of the ambit of Customs Department including the respondent No. 1 and any subsequent checking during transportation of those goods within the territory of Pakistan is beyond their jurisdiction as none of the provision of the Customs Act, 1969 authorizes any designated official of Customs to interrupt the local transportation of goods on sham pleas of smuggling. Reference is placed on the order of the Tribunal in Customs Appeal No. K-719/02, H-720/02, H-686/03, Q-776/04, 2005 PTD (Trib.) 135 and PLD 1991 SC 630. (Exhibit R )

(e)That the officials of the Customs including the officials of Directorate of Intelligence and Investigations F.B.R. has also to look into the fact that whether the goods transported by the appellant or any other person are included in the list of smuggled goods defined in Clause (a) of subsection (s) of section 2 and subsection (2) of section 156 of the Customs Act, 1969 in the light of notification issued by the Board vide S.R.O. No.566(I)/2005 dated 6-6-2005. If the goods intercepted, are not included in the said list, those cannot be interrupted, detained or seized for any purpose including adjudication. The goods transported by the appellant are outside the ambit of list of smuggled goods with the exception of shampoos, soaps and cotton yarn, which are listed at serial No. 27 and 37. Resultant, the customs official including of the Directorate of Intelligence and Investigations-FBR are not empowered to detain and subsequently seize the goods of the appellant on even slightest presumption of smuggling. Reliance is placed on 1981 PCr.LJ66, 1981 PCr.LJ986, 1984 PCr.LJ 3096(2), 1987 Cr.LJ 325, 1988 PCr.LJ 435 and Customs Order-in-Appeal No. 26 of 2005 dated 9-1-2006

(f)That the respondents have also look into the third aspect for confirmation of smuggling i.e. whether the goods so transported are retrieved from the hidden/false cavities made for time being or artificially made as defined in clause (b) of Notification No. 499(I)/2009 dated 13-6-2009, meaning thereby the space behind a truck for loading goods would not fall within the definition of false cavity. Resultant, goods transported within the territory of Pakistan with the exclusion of area given in Notification No. 118(I)/83 dated 12-2-1983, cannot be presumed even through a figment of imagination as smuggled. The appellant transported the goods at the back of the trailer/carrier openly and due to that reason the official of the respondent No.1 released appellant trailer/carrier without any hitch or hindrance. Resultant, the goods loaded on the released trailer/carrier cannot be intercepted, detained, seized as has been done by the respondent No.1. The said act amounts to exercise of powers based on forced construction of law, rendering the same nullity to law. Reliance is placed on the order of Customs Appellate Tribunal in Customs Appeal No.H-185 of 2009 Noor Muhammad son of Muhammad Gul, Imtiaz Ali son of Pir Buksh v. Deputy Collector of Customs, (Adjudication), Hyderabad and Lahore High Court reported judgment 2010 PTD 2015 Collector of Customs v. Rehmat Afridi.

(g)That the fourth aspect to be looked into, for determination of the goods transported by the appellant or any other person is that whether those are freely available in the local market without any curb or restriction, if available then such goods does not fall within the degree of smuggled as defined in section 2(s) of the Customs Act, 1969 and are presumed to have been tax and duty paid. The said opinion stood validated from the reported judgment of Apex Court 1995 SCMR 387 Sikandar A. Karim v. The State. The Double Bench of the Hon'ble Supreme Court comprised of Justice Saeed-uz-Zaman Siddiqui and Justice Mukhtiar Ahmed Junejo held in unambiguous term that "If the item alleged to be smuggled by the prosecution were freely available in the open market and the import of such goods were not banned in the country, presumption could arrive that the goods in question were lawfully brought in the country unless contrary was shown". As per dictum laid down by the Hon'ble Supreme Court the Appellate Tribunal in Customs Appeal No.339 of 2000 Mr. Muhammad Hanif v. The State and 301/2003 Nasser Ahmed v. Collector of Customs, Sales Tax & Excise, Quetta that held that "to produce legal import documents is nothing but to put undue pressure on the business community in spite of the fact that it has been observed number of time by the Supreme Court of Pakistan that the goods which are freely available in the market are presumed to be have been legally imported and duty paid. Even otherwise no reasonable ground has been given in the order-in-original that even for the sake of arguments, it is taken that the receipt produced by the appellant and issued by Saifullah Khan have no legal status then also it cannot be concluded that the said transaction was illegal, making way to call upon appellant to produce import documents.

(h)That irrespective of the referred in above proposition of law, if it is considered for a while that the stance taken by the respondent No. 1 is correct, even then the onus to prove the allegation of smuggling rest on its shoulders under Articles 117 and 121 of Qanoon-e-Shahdat (10 of 1984) as per laid down law by the Superior Courts of Pakistan namely S.M. Anwar Sethi v. South British Insurance Company Ltd. PLD 1975 Kar. 458; Barkat Ali v. The State PLD 1973 Kar 659; Cross on evidence 1967, 3rd Edn., London Butterworth; A Practical Approach to Evidence by Peter Murphy 1988 3rd Edn. London, Black Stone Press Ltd; The Modern Law of evidence by Adrian Kean 1985, 1st Den. Oxford, Professional Books Ltd. Mst. Safia Begum v. Mst. Malkani and another PLD 1965 Lah. 576; Akber Ali v. Ehsan Ellahi PLD 1980 Lah. 145; Government of Pakistan v. Moulvi Ahmed Saeed 1983 CLC 414; Muhammad Sarwar v. Fazal Rehman 1982 CLC 1286 Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325; Eastern Rice Syndicates v. C.B.R. PLD 1959 SC (Pak) 364; The Collector Central Excise and land Customs v. Imdad Ali 1969 SCMR 708 and Messrs Latif Brothers v. Deputy Collector of Customs, Lahore 1992 SCMR 1083.

(i)That the said proposition of law was explained with clarity by their Lordship of High Court of Sindh in reported judgment PLD 1996 Karachi 68 Kamran Industries v. Colllctor of Customs (Exports) and Order of the Custom Tribunal in Customs Appeal No. K-391 of 2004 Mr. Muhammad Mir v. Collector of Customs (Adjudication), Karachi. While holding that:

"For every offence for which the accused is charged under the Customs Act he shall have to disprove the allegation of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statues which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discretion vested upon the executive authorities. As absolute power corrupts an interpretation fettering the discretion of the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to section 187 the entire burden to dispute the entire case rest upon the accused alone. The executive authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided.

(j)That despite of the fact that the respondents failed to discharge the onus of proof in regards to leveled allegation, the appellant despite not warranted under law voluntarily supplied the copies of the corresponding documents of the goods transported from Lahore to Karachi by the shippers, for resolving the non-issue created by the respondent No. 1. Which were completely discarded and ignored without any basis and lawful excuse beside in absence of availability of power of detaining/seizing of the goods. Bilty wise detail of the transported goods and the corresponding import documents/GD's/CRNs and cash memos are annexed herewith for perusal of the Hon'ble Tribunal.

(k)That with the submission of the corresponding documents against each bilty the appellant discharged burden of proof and there was no cause or reason for the respondent No. 1 to detain, seize the goods transported by the appellant for the purpose of adjudication and nor for the respondent No. 2 for ordering of shampoos and soaps confiscation out-rightly and release iron and rest of the items on payment of 10% & 20% redemption fine respectively in addition to leviable duty and taxes on the value ascertained by the official of the respondent No. 1 and so for the respondent No. 2, rendering the said order nullity to the relied upon judgment on each issue and nullity to the judgment of High Court of Lahore in C.A. No. 68 of 2002 Collector of Customs, Lahore v. S.M. Saleem. The Division Bench of the Lahore High Court, Lahore dismissed the appeal and maintain the order of the Tribunal while holding in Para 6 and 7 that:

"6- it is not denied before this Court that the goods subject matter of this appeal were importable. It is further not denied that the respondent had produced receipts before the Adjudicating Officer but he did not give any enable reason whatsoever as to why this piece of documentary evidence was not relied upon. The operative part of the judgment of the Deputy Collector Customs (Adjudicating) is to the effect that "since no documentary evidence indicating the proper import thereof has been furnished. It is hereby concluded that watches and watches part seized in this case have been brought into country without payment of duty and taxes."

7- the afore-referred view is not in consonance with the law laid down by the August Supreme Court in Pakistan v. Ziauddin (PLD 1962 Supreme Court 440). Wherein the receipt of purchase and payment of money produce by the person from whom smuggled items were recovered was accredited with truth and the court held that he has discharged the burden of proof mandated in section 177-A of the Sea Customs Act, 1978 at page 446 it was observed as under:

The section requires reasonable belief on the part of the person seizing the goods that an act to defraud the government of duty has been committed. If a person purchases goods as in an ordinary market then in the absence of any suspicious circumstances of some definite fact leading to that inference the custom officer is not entitled to a reasonable belief that the Government has been defrauded of the duty payable on the goods. The ordinary method of the import of goods from outside into Pakistan is that they come through the customs barrier and the duty payable is infact paid. The presumption therefore, with respect to any goods which may be sold in the open market in the absence of an indication to the contrary would be that duty has been paid on them.

(l)That irrespective of the referred in above factual aspect and discharge of burden of proof by the appellant despite not laid upon him, the appellant felt appropriate to rely upon judgment of the Hon'ble Supreme Court of Pakistan reported 2007 SCMR 10 Collector of Customs, Sales Tax and Central Excise v. Prof. Muhammad Khan and 6 others. Wherein their lordship of the Supreme Court examined the aspect that whether Directorate General FBR can demand import documents of any goods or item within the city or during their transport within the territory of Pakistan or not and held that:

"law certainly provided protection to a public servant for doing lawful act in discharge of his duty but no such immunity was to be claimed by a person for committing illegal act in his official capacity as a public servant in the absence of proof that the goods in possession of a person were brought into Pakistan in violation of any law, customs authorities and such other public functionaries had no authority to detain such goods merely on suspicion---Petitioner had showed documents of registration in his name to customs official who, having detained the car, insisted the production of import documents for release of car---Detention of car was an act of highhandedness which was committed through misuse of official authority and it might constitute misconduct in terms of Civil Servants (Efficiency and Discipline) Rules, 1973 read with Removal from Service (Special Powers) Ordinance, 2000----Exercise of official authority in a manner in which a person was made victim of misuse of process of law was violative of constitutional guarantees of rights of citizens and a person responsible for violation of such rights of citizens and a person responsible for violation of such rights was to face legal consequences--- Act of customs officials might also constitute misconduct, therefore, concerned authorities were under legal obligation to initiate appropriate proceedings against officials involved in the matter."

(iv)It is felt imperative by the appellant to add further that the officials of the respondent No. 1 were well aware of the fact that their act and commission are contrary to the Law, Rules and Regulation, but they carry on these unlawful activities un-interrupted because while intercepting the goods in transportation and detaining/seizing those subsequently provide them tool for blackmailing for fulfillment of their nefarious design/demands and also enable them to steal/pilferage the goods so detained. Additionally, they also provides instruments and tools to their superior and adjudicating authority for squeezing un-notified amount for releasing the unlawful detained/seized goods. These officials infact work and operate simultaneously as official of respondent No. 1 and as a Mafia engaged in illegal activities on the Highway for inflicting nuisance and agony for/to the businessman of Pakistan and for generating unspecified illegal funds for them and their superiors and the said fact stood confirmed from the detained goods of appellant, from which they pilferaged 137 cartons of appellant shippers goods (quantity therein is not known) because the appellant refused to succumb to their demand for payment of Rs.500,000.00 for the release of detained goods and from fixing of specified monthly amount for them for the transported goods within the territory of Pakistan by the appellant through his trailer/carrier.

(v)That the stance of the appellant stood abundantly and aptly proved from the fact that the shippers who approached the officials of respondent No. 1 directly e.g. the owner of cosmetics corresponding to bilty No. 09885 and 09886 and placed on record 7 GD's corresponding the year 2009 and 2010, the official of respondent No.1 and respondent No.2 entertained those for reconciliation and subsequently held that the goods so detained correspond to those and are duty paid. Whereas, the documents submitted by the appellant as exhibit "AC to AC9" at pages 193-237 with the reply to the show cause notice were discarded and not even a single word has been uttered in the order-in-original. The appellant failed to understand that how the official of respondent No. 1, how reconciled the documents presented by the owner of cosmetic, despite of the fact that no declaration in regards to the brand is given on the GD's rendering the order patently illegal beside discriminatory.

(vi)The order of the respondents Nos. 2 and 3 of allowing released of iron and remaining items on payment of 10% and 20% redemption fine ad by the respondent No. 3 on payment of 20% redemption fine on the goods confiscated by respondent No. 1 in addition to leviable duty and taxes on the value ascertained by the official of respondent No. 1 is also of no legal effect as if it is presumed that the goods transported by the appellant were smuggled, the respondents were not available with powers to order release of the goods under any pretext as per condition (a) of Notification No.499(I)/2009 dated 13-6-2009. While ordering so, the respondents infact confirmed that the appellant transported goods were not smuggled instead were lawfully imported/purchased, rendering the order in original suffer from powers/jurisdiction, hence, void, null and ab inito

(vii)That the appellant and his shippers strictly acted in accordance with the provision of the Customs Act, 1969 and Rules and Regulation framed there-under by transporting legally imported goods after payment of duty and taxes and locally purchased imported goods, which are deems to be duty paid as held by the Superior Courts of Pakistan and there exist no provision in the Customs Act, 1969 or any other law of the Land to pay a levy of tax twice i.e. first at the time of import and secondly upon detection and seizure of the same goods and upon completion of the adjudication preceding of the same goods in addition to the already paid. Any such law if made is tantamount to double taxation, which is prohibited under the Article of Constitution of Islamic Republic of Pakistan and even under the Constitution of the countries of entire world. Reliance place on reported judgment 1992 PTD 593, 2003 PTD (Trib.) 928, 2010 PTD 1515 and 2009 PTD (Trib.) 2025, 2011.

(viii) That the show cause notice was issued by the respondent on 26-3-2011 and an order under the proviso of subsection (3) of section 179 of the Customs Act, 1969 should had been passed by the respondent within 120 days from the date of issuance of show cause notice or within a further extended period of 60 days prior to expiry of the initial period of 120 days and after serving a notice to the person concerned and thereafter the respondent has to record the reason for extension of further period. In the instant case the order-in-original was passed on 5-9-2011 i.e. after the expiry of initial period of 120 days. Rendering the order-in-original barred by time by 43 days. Hence, it is without powers/jurisdiction and not enforceable under the law.

(ix)That simultaneously the appellant presented appeal before respondent No. 3 on 24-9-2011 and order-in-appeal was issued by the respondent No.3 on 15-5-2012, after entire stipulated period of 180 days, meaning thereby that beyond limitation period prescribed in terms of subsection (3) of section 193(A) of the Customs Act, 1969. The final date for deciding the appeal expired on 23-3-2012. It is to be noted that no extension was even accorded prior to expiry of initial period of 120 days i.e. on or before 24-1-2012. Rendering the order-in-appeal beyond the period of limitation by (111) days, hence it is ab initio null and void. The issue of time bar has been time and again discussed in a number of judgments delivered by the superior judicial fora and the provisions relating thereto are mandatory in nature for implementation by all subordinate judicial and quasi-judicial forums in view of the "Doctrines of Binding Precedents and Stare Decissus". In this connection it is a misconstrued position nurtured by the revenue that time period prescribed under the relevant statutes of the Customs Act, 1969 is administrative and directory in nature and not mandatory, hence does not affect the proceedings, if any, concluded after expiry of time limit. In this regard, reference to the Article 254 of the Constitution of Islamic Republic of Pakistan in like cases is also not pertinent. The Article 254 of the Constitution is general in nature and does not specify or rebut statutory provisions contained in special/specific Acts. Otherwise there is no requirement for legislature to prescribe different limitation periods for different statutes in presence of the aforesaid Article. Redundancy cannot be attributed to these statutory prescribed time limits.

(x)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 document has become dead on account of non timely extension of time period prior to expiry of entire stipulated 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 merits of this case:

"We are of the considered opinion that once a matter becomes barred by time then the subsequent enhancement in the period of limitation shall not have the effect of reopening the pasted 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."

(ii)The claim of the revenue that the prescribed limitation of 45 days from completion of adjudication proceedings as provided through Finance Ordinance 2000 and enhanced to 90 days by Finance Act, 2003 is merely directory cannot be accepted. It is settled law that where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen the prescription of time is deemed directory. However, where a public functionary is empowered to create liability against a citizen only within the prescribed time, it is mandatory. The acceptance of contention of the revenue in that regard will make a provision of law redundant and nugatory. Redundancy or superfluity of an act of Parliament and a provision of law cannot be readily accepted. All the more so when the prescribed limit is beneficial for the citizen and restricts the executive power to touch the pocket of a tax payer thereby creating threat after its expiry even if there was good case for creation of liability he will not be dragged in."

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 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 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."

Since the initial period of 120 days stood expired on 24-1-2012, without any extension, the order-in-appeal becomes barred by limitation period by (111) days rendering it and preceding order as without power/ jurisdiction, hence ab initio null and void and not enforceable under the law.

The Honourable Supreme Court of Pakistan in Nagina Silk Mills Lyallpur v. The Income Tax Officer and the Income Tax Appellate Tribunal, Pakistan reported as PLD 1963 SC 322.

" in so many words referred to legal position that once limitation has started to run and had come to end the assessee has required vested right of escapement of assessment by lapse of time."

The Honourable Supreme Court of Pakistan in the above referred to judgments observed as under:--

"The Court must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enhancement would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails. Reference may be made in this connection to page 206 of Maxwell on the Interpretation of Statute, Eleventh Edition. Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing stature. The appellant herein had already acquired the vested right of escaping assessment, by lapse of time, when the 1960 Ordinance was enforced. In all probability, the Legislature never intended that he period of limitation prescribed in the Act should become variable with the charges in the "financial year" or "year" inserted in the Act for certain other purposes, namely, to accord with the new accounting years adopted by Government."

In the case of Pace International Rawalpindi v. Secretary, Revenue Division, Islamabad, the Federal Tax Ombudsman (FTO) while their judgment reported as 2006 PTD 340 has observed that the assessment of sales tax of a person in default was to be made within 45 days of the issuance of show cause notice or within extended time, the issuance of show cause notice and passing of order-in-original beyond that period is time barred. This position was reinforced in their judgment of SS Oil Mills Ltd. v. Secretary Revenue Division Lahore reported as GST 2005 CL 592 regarding the orders issued beyond statutory limitation period. The judgment of the Federal Tax Ombudsman (FTO) in the case of Pace International Rawalpindi by the President of Pakistan in their order reported as PTCL 2005 CL 841 states that the time limit prescribed under section 36(3) is mandatory because a public functionary is empowered to create a liability against a citizen.

The same view point has been taken by the honourable Supreme Court in their judgment reported as 1992 SCMR 1898. It in so many words states that while construing the financial statute, it terms are strictly to be followed.

" .Thirdly, while considering a financial statue, its terms are strictly to be followed. Keeping in view these principles, for short-levied duties on account "of inadvertence, error or misconstruction", section 32(3) of the Customs Act, 1969 provides that for recovery notice shall be served 'within six months'. If that is not done, like a suit for recovery of money after lapse of time prescribed by law of limitation, the recovery becomes unenforceable. Therefore, the provision is not merely directory as concluded by the learned Deputy Attorney-General .."

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) 109 Taxation 221 (sic), 2004 PTD 369, 1998 MLD 650, 2005 PTD 23, 2003 PTD 2821, 2004 PTD (Trib.) 2898 and 2007 PTD 2092, 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263 and 2009 PTD 1978. 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 79 and 2012 PTD (Trib.) 1650.

(xi)The order passed by the respondent No. 2 & 3 shows that these are not proper orders without application of judicial mind and provision of the Act. Instead these are non speaking orders and did not confirms to the mandated requirement of S.24-A of the General Clauses Act 1897 and this stood validated from the referred in above grounds No.(i) to (vii). Orders which did not contains rebuttal on the ground advanced and decision/judgments relied upon by the appellant and also not containing substantial reasons and did not shows that these were passed on objective consideration shall always be treated as illegal, void arbitrary and a result of misused of authority vested in public functionary. No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication/Appellate orders are being violation of basic principle of the goods governance and mandatory requirement of section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173 1984 SCMR 1014 and 2012 PTD (Trib) 619.

(xii)The appellant carves his right to add any fresh grounds at the time of hearing beside placing any valid incriminating evidence/ documents

9.Mr. Syed Munawar Hussain, I.O representative of the respondent No. 1 placed on record parawise comments dated 29-8-2012 by the Deputy Director, Intelligence & Investigation, FBR, Karachi which are reproduced as under.

(i)That contents of para (i) of the ground of appeal are misconception misinterpretation of law and twisting of facts by the appellant. It is evident o record that the appellant filed FTO Complaint No. 133/Khi/Cust(52)/314/2011 before the Honourable Federal Tax Ombudsman, Regional office, Karachi mainly on the plea of maladministration by the staff of Directorate General of Intelligence and Investigation-FBR, Range office, sucker. the Federal Tax Ombudsman, Regional Office, Karachi, vide order dated 31-3-2011, rejected the said complaint by giving its findings/recommendation wherein it has been held "that the complainant has failed to make out a prima facie case of maladministration against the department. The issue of legal import of impugned goods is also yet to be ascertained by the competent authority." Subsequent to the said findings the learned Additional Collector, MCC, Hyderabad heard the case in detail and given due consideration to the arguments advanced by both the sides and adjudicated upon the case vide Order-in-Original No. 20 of 2011 dated 5-9-2011, wherein at sub paras (i), (ii), (iii), (iv),(vi) (vii) (viii) of para.33 of the said order given his detail findings regarding confiscation of the impugned non duty paid/smuggled goods. Therefore, the averments of the appellant made in the said para are hence denied.

ii.that contents of sub para a to d of para (ii) of the ground of appeal are twisiting of facts and misinterpretation of law by the appellant. The non duty paid/smuggled goods was seized by the staff of Directorate General of Intelligence and Investigation-FBR, Range office, sucker, when the possession holder failed to discharged burden of proof of lawful possession in terms of clause (89) of subsection(1) & (2) of section 156, read with section 187 of the Customs Act, 1969. Therefore, the seizure of smuggled/non duty paid goods issuance of show cause notice, order-in-original and order-in-appeal are in accordance with law. The citation relied upon by the appellant are not identical and similar to the instant case."

(b to i) that contents of sub paras (b) to (1) to (1) of para (iii) of the ground of appeal are misconception, misinterpretation of law and twisting of facts by the appellant, whereby on the basis of various judgments of Honourable High Court as well as Honourable Supreme Court of Pakistan, the appellant has tried to establish that the officers of Directorate General are not empowered to detain and seize smuggled goods inside the country. Moreover, the seized goods, legally imported and are also freely available in the open market, were being transported from Lahore to Karachi, on tanker/trailer Regd No. Z-3349, without any concealment/cavity. Therefore, the provisions of section 2(s) as well as S.R.O. 499(I)/2009, dated 13-6-2009, did not attract in this case. The aforesaid claim of the applicant is not maintainable and is hence denied on the basis of following submissions:--

a. That the directorate General Intelligence and Investigation was established in 1958 with the approval of President of Pakistan as an attached department of Revenue Division. In this connection the Central Board of Revenue (Now FBR), and Ministry of finance (Revenue Division), issued Notification No. 55-C, 56-C, 57-C and 58-C all dated 07.10.1958, whereby it appointed the officers of Directorate General as land Customs Officers and Customs officers. The directorate was established for the purpose of performing functions and duties including enforcement duties and for carrying out Preventive operation throughout the country related to smuggling, evasion of Federal Taxes through clandestine removal of dutiable goods, mis-declaration, valuation, frauds, fraudulent claims of refund and rebate etc, and to detect and investigate cases cognizable under the Prevention of smuggling Act, 1977. In this regard for smooth performance of the said duties, the Central Board of Revenue (now FBR), in exercise of the powers conferred under sections 3 and 4 of the Cusotms Act, 1969, vide SRO-413(I)/73 dated 21-3-1973 superseded vide S.R.O. 413(I)/73 dated 21-3-1973, superseded vide S.R.O. 39(I)2005 dated 6-1-2005 and superseded vide S.R.O. 486(I)/2007 dated 9-6-2007, issued by the Central Board of Revenue in exercise of the powers conferred by section 3-E & 4 of the Customs Act, 1969, which authorized officers of directorate General to exercise the following powers in discharge of the duties of officers of customs within the area of their respective jurisdiction and invoke all the relevant provisions of the said act.

"Section 17, 26, 48, 60, 62, 91, 92, 111, 112, 139, 157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1) (3) and (4), 169, 171, 174, 175, 185-F, 186, 193, 194-A, 196, 197, 198, 199, 201 and 202 of the customs Act, 1969 and to invoke all the relevant provisions of the said Act and rules made there under if so warranted.

b.The central Baord of Revenue, now FBR vide letter No.3(4)/86/ACE-III dated 10.03.1990, also circulated Charter of function for the directorate General of Intelligence and Investigation, "to perform enforcement duties and to carry out preventive operations throughout the country related to smuggling evasion of federal taxes through clandestine removal dutiable goods, misdeclaration, valuation frauds fraudulent claims of refund and rebate etc and to detect and investigate cases cognizable under the Prevention of Smuggling Act, 1977 as well as to look into and investigate cases of corruption and mal-practice received by the directorate from the public press or through any other source against the officers and staff of revenue collecting agencies under the Central Board of Revenue and propose appropriate action.

c.In the light of the above narrations, it is quite evident that a statute provide a complete legal framework to officers of the Directorate General for performing the duties of officers of Customs inside the port areas declared under sections 9 and 10 of the Customs Act, 1969 as well as perform enforcement duties to carry out preventive operation throughout the country relating to smuggling, evasion of Federal Taxes through clandestine removal of dutiable goods, misdeclaration, valuation frauds, fraudulent claims of refund and rebate etc and to detect and investigate cases cognizable under the Prevention of Smuggling Act, 1977. The Directorate General, is headed by a Director General, Directorate and to assist them in performance of their duties there are Additional directors, Deputy Directors, Assistant director superintendents, Deputy Superintendents, Senior Intelligence Officer and Intelligence Officers who are posted throughout the country like a network. The main function of the Directorate is to unearth cases of serious types of smuggling and to collect information on import and export of prohibited goods etc. The officer of the Directorate have powers of search of the places and conveyances arrest of persons and seizure of offended goods and conveyances. During performance of their duties if any goods are found liable to confiscation, then the provisions of sections 168(1)(3)(4) and 161 of the Customs Act, 1969 become operative. Upon completion of investigation report invoking relevant provision provisions of Act and rules made there under, the cases are forward to competent forums having jurisdiction to initiate Civil and Criminal proceeding under section 179 and section 185A of the Customs Act, 1969.

d.The appellant has also agitated that the seized goods are not included in the list of notified items of S.R.O. 566(I)/2005 dated 6-6-2005, therefore, the seizure of the same was not even warranted. At this junction, it would be advantageous to reproduce the provisions of section 2(s) of the Customs Act, 1969:--

(i)Gold bullion, silver bullion, platinum palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or

(ii)Manufacturers of gold or silver or platinum or palladium or radium or precious stones and any other goods notified by the Federal Government in the officials Gazette which in each case exceed (one hundred and fifty thousand rupees) in value: or

(iii)Any goods by any route other than a route declared under section 9 or 10 or from any place other than a custom station.

And includes an attempt, abetment or connivance of so bringing in or taking out of such goods, and all cognate words and expressions shall be construed accordingly;

e.That from the bare reading of clause (iiii) of section 2(s) of the Customs Act, 1969, it is abundantly clear that all the smuggled goods brought into the country through routes other than declared under sections 9 and 10 of the Customs act, 1969, fall within the definition of smuggled goods. It is evident on record that seized smuggled goods was being transported from Lahore to Karachi without the cover of bilities as well as legal import documents which was intercepted by the staff of Directorate General, Range office, Sukkur. It is submitted that in terms of clause (89) of subsection (1) of section 156 of the Customs Act 1969, the possession holder of the smuggled goods is responsible to discharge burden of proof of lawful possession and prove that the goods was legally acquired. Similarly, in terms of subsection (2) of Section 156 of the Customs Act, 1969 "where any goods specified in clause (s) of section (2) or an a Notification issued there under are seized under this act in this reasonable belief, that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being enforced by or under this act has been committed act, there was no such intent shall be on the person from whose possession the goods wee seized". However, the possession holder/driver failed to discharge burden of proof of lawful possession and transportation of the seized goods.

f.That the appellant in the grounds of meme of appeal has also agitated that restrictions on the possession goods in certain areas as expressed of section 177 of the Customs Act, 1969, is also notified vide Notification No. S.R.O.118(I)/83 dated 12-3-1983, car marketing the are of five miles adjacent to frontier of Pakistan with India and Iran to be the area to which section 177 of the Customs Act, 1969, shall apply. In this regard, it is clarified that the said sections as well as notification only deals with possession of some quantity of certain goods in the aforesaid area. However, no such goods have been notified, for this purpose. Therefore aforesaid provisions of law neither has any nexus with the said case nor act as a bar on interception of smuggled goods inside the country.

iv. That contents of para (iv) of the grounds of appeal are misleading misconceived and contrary to facts and law, in the instant para the appellant has leveled baseless and fabricated allegations against the staff of intelligence and investigation-FBR, Range office, sucker. The comments to this effect have already been offered at the opening para of the instant comments. The mala fide intention of the appellant regarding the allegation of demand of Rs. 500,000.00 by the seizing staff was neither incorporated in the memo of complaint before honourable FTO, nor was agitated during hearing proceedings. Such allegation are after thought ill motivated and has been leveled only to harass the public servants who have performed their duties strictly in accordance with law.

v.That contents of para (v) of the ground of appeal are twisting of facts by the appellant. The goods relating to bility Nos. 09885 and 09886 were ordered for release by the adjudicating authority upon submission of corresponding Goods Declaration proving therein that the said Goods wee legally imported and duty paid. However, the appellant during adjudication proceedings and till today have failed to produce any legal imported and cleared on payment of duty and taxes leviable thereon. The documents relied upon by the appellant has no relevance with the confiscated goods and have been produced only to give legal cover to the smuggled goods.

vi.That contents of para (vi) of the ground of appeal are not denied to the extent of release of iron on payment of duty and taxes and redemption fine which is strictly in accordance with law.

viiThat contents of para (vii) of the ground of appeal has already been commented upon in the preceding paras.

viii.The contents of para (viii) of the ground of appeal are misleading misconceived twisting of facts and misinterpretation of law by the appellant. It is evident on record that upon receipt of show cause notice dated 26-3-2011, the appellant submitted an interim reply dated 6-4-2011 (Annex-J of the memo of appeal), before the Additional Collector, MCC, Hyderabad, wherein at concluding para it has been agitated that "our client has filed a complaint before the Federal Tax Ombudsman on 29-3-2011, whereas the impugned show cause notice was dispatched by your office on 30-3-2011 and received by our client on 31-3-2011, meaning thereby that the case stood subjudice befoe Honourable Federal tax Ombudsman, prior to dispatch/received of show cause notice, which may please be noted". The FTO complaint No. 133/Khi/Cust(52)/314/2011 was disposed of vide finding/recommendation dated 1-6-2011 and thereafter the appellant on 6-6-2011 and 5-7-2011 (Annex-K & L of the memo of appeal), filed replies to the show cause notice before the learned Adjudicating officer. such state of affairs is sufficient to establish that the appellant firstly avoided to join the adjudication proceedings on the plea of pendency of his above FTO Complaint before the honourable Federal Tax Ombudsman, Regional Office, Karachi and secondly submitted replies to the show cause notice after the lapse of a considerable period. Therefore, the stance taken by the appellant is not maintainable and the citation relied upon by him are also irrelevant. Moreover, the limitation provided under subsection (3) of section 179 of the Customs Act, 1969, are infact directory in nature and not mandatory.

ix & x. That the contention of para (ix & x) of the appeal are not maintainable. The limitation provided under section 193-A of the Customs Act, 1969 are directory in nature and not mandatory. The learned Collector of Customs (Appeals) Karachi has passed order strictly in accordance with law. The citations relied upon by the appellant are not similar and identical to the instant case, therefore, has no relevance.

xi.That contents of para (xi) of the ground of appeal are misleading misconceived and contrary to facts and law. The learned respondent No. 2 and 3 while concluding Order-in-Original No.20 of 2011 dated 5-9-2011 and Order-in-appeal No.6065 of 2012 dated 15-5-2012, have given well description and detailed findings, which covers each and every aspect of the case. It is evident on record that at the time of interception no import documents wee produced showing therein lawful possession and transportation of foreign origin goods. Even the appellant during arguments before the Honourable Federal Tax Ombudsman, Regional Office, Karachi has admitted that the foreign origin goods seized by the department were being transported without the cover of legal import documents. Therefore, the seizure of the goods issuance of show cause notice and subsequent orders were issued in accordance with law. The citation relied upon by the appellant in support of his contention are not applicable in the instant case.

10.The hearing was fixed on 4-8-2012 on which date the Tribunal raised a query in regards to locus-standi of the appellant and directed the consultant to submit his arguments in regards to the said issue. He on 28-9-2012 submitted additional arguments which are reproduced here-in-below:---

The Hon'ble Tribunal during the course of hearing on 4-8-2012 raised a query in regards to appellant's locus-standi. In this regards the appellant stated that since he is the custodian of the transported goods he enjoys the locus standi of the goods in question and he is within his legal right to file an appeal. This fact stands validated from the fact that upon detention of the Trailer his official visited the office of respondent No. 1 on 12-3-2011 with all the relevant documents of the transported goods and handed over those to the respondent No. 1, which were not accepted as valid consequent to which the subordinate of respondent No. 1 served notice under section 171 of the Customs Act, 1969 to the owner of the goods through appellant through his official namely Mr. Rana Muhammad Altaf in the capacity of the custodian of the goods.

That in case the respondent would had thought that the appellant has no relevance with the transported goods in that case no notice under section 171 of the Customs Act, 1969 would have been served to the owner of the goods through our officials, instead the respondent would had instructed for supply of the name and addresses of the shipper of the goods for serving notice upon them under section 171 of the Customs Act, 1969. The said act is enough to prove locus standi. Nevertheless, it is further substantiated from the fact that the show cause notice was also served to the owner of the transported goods care of appellant, the owner of the goods accordingly informed the appellant that once the goods are delivered for transportation, he is the owner/custodian of the goods till the time of their delivery and he has to adopt every legal course for releasing the goods and as such he has to reply to the show cause notice hence he replied and the adjudicating authority passed Order-in-Original No.20 of 2011 dated 5-9-2011 against the appellant, which he assailed before respondent No. 3, who passed Order-in-Appeal No. 6065/2012 dated 15-5-2012, this is enough to substantiate the locus-standi of the appellant which is assailed before the Hon'ble Tribunal. At every stage locus-standi of the appellant was accepted.

Notwithstanding, it is appropriate for the appellant to state that when he booked the goods for transportation, he acted as a custodian for the goods transported by him just like a shipping company, which accepts the goods for shipments to consignees against the proper bills of lading, which they surrender to the shipping company for obtaining delivery order for the shipped goods. Likewise he issued the shipper of the transported goods proper bilties for surrendering those at his Karachi office for obtaining the delivery by the consignee, unless the goods are not delivered to the consignee, those rest with the appellant as "Amana" of the shipper. It is for the appellant to ensure safe transportation of the goods without any observation in regards to any context including detention/seizure of the goods by any agency, unless those are not delivered to the consignee upon surrendering of the bilties. And non-delivery of the goods to the consignee has serious consequences for the appellant as the shipper/consignee can claim the cost of the goods and damages from the appellant and for that reason while submitting application for urgent hearing the appellant incorporated the said fact in that. This proposition of law stood validated from the reported judgment of the High Court of Sindh reported as 2006 CLC 1511 (Adam Holding Ltd v. Global Container Line (Bahamas Ltd.)). Their Lordship of the High Court held that;

"When any consignment was entrusted to a carrier to a port of destination, then it was carrier's bounden duty to ensure that consignment reached designated port. If shipment did not reach its destination or even if it did reach it its destination but on account of negligence of carrier or its agent; the same was lost or mis-delivered and the real consignee or the endorsee of the bill of lading did not get the delivery of the consignment, then the carrier was answerable to the shipper or consignee or the endorsee of the bill of lading for the lost shipment. Carrier in such condition could not absolve itself of the obligation by shifting its responsibility on the port authorities. Shipper or consignee or the endorsee of the bill of lading had every right to claim from the carrier compensation as well as damages for the lost consignment and carrier was to compensate them for value of goods as for a claim of damages which they had sustained on account of non-delivery of consignment."

That even otherwise in the absence of any objection in the past proceeding in regards to locus standi, at this stage no objection can be raised in this regard and this fact further stood validated from the comments of the respondent No. 1 containing no objection in regards to locus standi.

That as regards comments at (b) at page 7 of the comments submitted by respondent No. 1 and 2, it is submitted that the prevention of smuggling indeed falls within the charter of duties of respondent No. 1 but the said duties have to be performed near the Sea/Dry/Air Ports/Coastal Area, Frontier of Pakistan not on National High Way or within the city as held by Hon'ble Supreme Court of Pakistan PLD 1191 Supreme Court 630 Collector of Customs (Preventive) and 2 others v. Muhammad Mehfooz. The Division Bench of the Apex Court held with clarity that

"S---163 "jurisdiction of Customs Authority extend only to Port Area and not to entire city--- goods in question having been seized by Customs authorities from an area which was not included in their jurisdiction, sub seizure was rightly declared to be without lawful authority and of no legal effect by the High Court. Federal 'B" Area in which the raid was made and subject goods were seized was not included within the limits of port of Karachi, there is no doubt about the fact that appointment of Collector of Customs, Deputy Collector of Customs, Assistant collector of Customs or other officers of Customs could have jurisdiction only in port areas and not in entire Karachi."

That through comments given at (f) at page 9 of the comments, the respondent Nos. 1 and 2 have tried to mis-lead the Hon'ble Tribunal the notification is very clear and it does not contain any such wording narrated by the respondent that it speaks about "some quantity of certain goods". No quantity or goods are mentioned therein instead it states that any good seized within 5 miles adjacent to the frontiers of Pakistan with India and Iran is the area to which section 177 of the Customs Act, 1969. Likewise the submission of respondent Nos. 1 and 2 that the said notification has no nexus with the appellant is also erroneous as the Appellate Tribunal and Superior courts of Pakistan have passed umpteenth judgments while reliance on the said notification. Reference is made to the order of Tribunal in Customs Appeal No. K-719/02, H-720/02, H-686/03, Q-776/04, 2005 PTD (Trib.) 135, PLD 1991 Supreme Court 630

11.Rival parties heard on 19-12-2012 and case records perused and the following issues are framed for consideration by this forum:-

(i)Whether the appellant established his locus standi?

(ii)Whether goods transported within the territory of Pakistan falls within the definition of smuggled goods in terms of section 2(s) of the Customs Act, 1969 read with Notification Nos. S.R.O. 118(I)/83 dated 12-2-1983 and S.R.O. 566(I)/2005 and S.R.O. 499(I)/2009 dated 13-6-2009?

(iii)Whether the good intercepted and detained by the Directorate General of Intelligence and Investigation-FBR during the course of transportation within the territory of Pakistan are freely available in the local market without any restriction, hence ought to be duty paid as held by Superior Judicial Fora in umpteenth reported judgments?

(iv)Whether the appellant discharged burden of proof laid upon him under section 187 of the Customs Act, 1969?

(v)Whether the respondent Nos. 2 and 3 were empowered to release the goods on payment of 10% and 20% redemption fine in negation to the expression of Notification S.R.O. 499(I)/2009 dated 13-6-2009?

(vi)Whether the Order-in-Original is barred by time and without powers/jurisdiction in terms of subsection (3) of section 179 of the Customs Act, 1969 being issued after 43 days of the stipulated limitation period of initial 120 days?

(vii)Whether the Order-in-Appeal is barred by time and without powers/jurisdiction in terms of subsection (3) of section 193-A of the Customs Act, 1969 being issued after 111 days of the stipulated limitation period of 180 days?

(viii) Whether the respondent No. 2 issued the show cause notice after going through the facts of the case and applicable to provision of the Act, Rules and Regulation independently and fairly as held in reported judgment 2004 PTD 369 Messrs Zeb Traders v. Federation of Pakistan?

12.That as regards issue No. (i), during the course of hearing the Consultant invited the attention of the Bench to the expression of subsection (2) of section 168(1) of the Customs Act, 1969, which read as "where any goods are seized under subsection (1) and no show cause notice in respect thereof is given under section 180 within 2 months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Meaning thereby that no question in regards to the ownership of the goods (locus standi) was made part of the expression instead emphasis has been laid that the goods shall be return to the person from whose possession those were seized, as he is the proper person under law for claiming/return of the goods. In the instant case the respondent No. 1 intercepted the carrier of the appellant and detained their client transported goods and notice under section 177 were served to them. They supplied the documents of import and purchased receipt along with addresses and phone numbers of the shipper and recipient. No objection on those were raised instead the respondent No. 1 issued show cause notice to the appellant which was replied by them and order was passed against them by the respondent No. 2, which the appellant assailed before respondent No. 3 who also passed order-in-appeal against them. No question as regard to locus standi was ever raised at any fora, by virtue of the fact that being transporter they are custodian of the goods and received those from shipper as " amanah" for delivering those in save and sound condition to the recipient upon surrendering the bilties (delivery orders). Non delivery of the goods to the consignee has serious consequences and the stance of appellant further stood validated in addition to the expression of section 168(2) of the Customs Act, 1969 from reported judgment 2006 CLC 1511(Adam Holding Ltd v. Global Container Line (Bahamas Ltd.)). Wherein their lordship of the High Court held that "When any consignment was entrusted to a carrier to a port of destination, then it was carrier's bounden duty to ensure that consignment reached designated port. If shipment did not reach its destination or even if it did reach its destination but on account of negligence of carrier or its agent; the same was lost or mis-delivered and the real consignee or the endorsee of the bill of lading did not get the delivery of the consignment, then the carrier was answerable to the shipper or consignee or the endorsee of the bill of lading for the lost shipment. Carrier in such condition could not absolve itself of the obligation by shifting its responsibility on the port authorities. Shipper or consignee or the endorsee of the bill of lading had every right to claim from the carrier compensation as well as damages for the lost consignment and carrier was to compensate them for value of goods as for a claim of damages which they had sustained on account of non-delivery of consignment." Resultant, the appellant enjoys locus standi for filing appeal. The question No. (i) is answered in affirmative.

13.As regard the issue No. (iii), it is appropriate to reproduce the provision of section 2(s) and 177 of the Customs Act, 1969 and notification S.R.O. 118(I)/83 dated 12-2-1983 for better understanding the word smuggle and for specified area for leveling the charge of smuggling :

2(s) "Smuggle" means to bring into or take out of Pakistan in breech of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon,

(i)Gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or

(ii)Manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed [one hundred and] [fifty thousand rupees] in value or

(iii)Any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly.]

Section 177 Restriction on the possession of goods in certain areas:- (i) This section shall apply to such areas adjacent to the frontier of Pakistan as may, from time to time, be notified by the Board in the official Gazette.

(2) In any area to which this section for the time being applies, no person shall have in his possession or control any such goods or class of goods in excess of such quantity or value as may from time to time be notified by the (Federal Government) or, with the previous approval of the (Federal Government) by the Provincial Government, in the official Gazette, except under a permit granted by the Government which issued the notification in respect of the particular goods or class of goods or by an officer authorized by such Government.

Notification of the Frontier Border area under section 177

Notification No. S.R.O. 118(I)/83 dated 12th February, 1983.---In exercise of the power conferred by subsection (1) of section 177 of the Customs Act, 1969 (VI of 1969) and in supersession of its notification No. S.R.O. 309(I)/70 dated 22-12-1970 the Central Board of Revenue is pleased to notify the area 5 mile adjacent to the Frontier with India and Iran to be the area to which the said section shall apply.

That after examining the section 2(s), it is observed that the definition of 2(s) can be applied only if both of two forms are fulfilled. Each of this form have two "limbs" and the form applied if either of its limbs is applicable, These position are narrated here-in-below:

(a)Form (A): The impugned goods should be brought into or taken out of Pakistan either (i) in breech of any prohibition or restriction for the time being in force, or (ii) by evading payment of customs duty and other taxes leviable thereon ; and

(b)Form (B) : The impugned goods should be (i) either those specifically listed in the definition, i.e. gold bullion, platinum, radium, etc or be notified by the Federal Government in the official Gazette, or (ii) be brought into or taken out of Pakistan by a route other than one declared under sections 9 or 10 or from a place other than a customs -station.

This Tribunal is of the view that unless both forms (A) & (B) applied the issue does not fall within the definition of "smuggle" and there can be therefore neither any smuggling of the goods nor can they be held to be "smuggled goods". For the instant case it is appropriate to consider Form (B) in detail. As far as first limb is concern none of the goods specifically mentioned in the definition are relevant present case, therefore for Form (B) to apply, it must be shown that either goods transported have been notified by the Federal government for the purpose of section 2(s) ( the first limb), or (the second limb) the goods in question were brought into Pakistan via route other than one declared in section 9 or 10 of the Customs Act, 1969 or from a place other than a Customs-Station each of the two limbs of course applied to its own footing i.e., the applicability of one is not dependent on the existence, continuance or occurrence of the other. Obviously, if there is no notification in relation to the goods transported, then the first limb did not apply and it was only the second limb of form "B" that could apply. The importance of this point can be appreciated by looking at it in reverse. If there is no notification in the field ( no application of the first limb), and goods are brought into Pakistan by a route declared under sections 9 and 10 and through a customs-station i.e., the second limb also does not apply) then form "B" would not apply in such a situation, even though there may be an evasion of customs duty and other taxes or breech of any restriction or prohibition (i.e., form (A) applies ). The matter would not come within the ambit of 2(s). in other words, there would be no smuggling of goods, which could not therefore be regarded as "smuggled goods". Another aspect has to be look into in the light of section 177 of the Custom Act, 1969 and Notification No. 118(I)/83 dated 12-2-1983, which is irrelevant and not applicable in the instant case by virtue of the fact that the goods intercepted and detained were not transported by the appellant within 5 miles of India and Iran Borders, instead from Rohri Tool Plaza at National High Way, while they were transporting the goods from Lahore to Karachi. Resultant, the transporting of the goods by the appellant does not falls within the meaning of "smuggling" and not the goods as "smuggled" through any stretch of imagination.

The submission made here-in-above is not merely an academic exercise or a consideration of section 2(s), 177 and Notification No. 118(I)/83 in the abstract, but a matter of great practical importance the notification presently in field with regard to section 2(s) is S.R.O. 566(I)/2005 dated 6-6-2005. This notification includes 54 items, the goods transported by the appellant does not fall within the ambit of the notified 54 items with the exception of serial Nos. 27 and 39 meant for "cotton, cotton yarn, fabric and soaps and shampoos", which was also transported by the appellant and the official of respondent No. 1 released "cotton yarn " that without any objection on the basis of formed opinion that those are manufactured in Pakistan and soaps and cosmetics by respondent No. 2 in the order-in-original while holding that these were duty paid. When goods transported are not listed in notification No. 566(I)/2005, those cannot be either intercepted or detained and if listed cannot be released on any condition as held by Division Bench of High Court in the case reported as PLD 1975 Karachi 482 and PLD 1978 Kar 774 and 1981 PCr.LJ 66, 1981 PCr.LJ986, 1984 PCr.LJ 3096(2), 1987 Cr.LJ 325, 1988 PCr.LJ 435 and Customs Order-in-Appeal No. 26 of 2005 dated 9-1-2006 (Although the goods involved there were motor vehicle, betel nuts and some other goods, the principle is the same)

In addition to the above discussed two forms, the Federal government carved yet another form vide notification No. 499(I)/2009 dated 13-6-2009 extending the definition of smuggling and smuggled goods, "if those were transported through lawfully registered conveyance including packages and containers carrying " goods in false cavities or been used exclusively or wholly for transportation of offending goods under clause (s) of section 2 of the Customs Act, 1969 (IV of 1969)". The container or vehicle through which the appellant was transporting goods was having no hidden or false cavities made for the time being or artificially made, instead at the hind of vehicle openly and due to the said reason the official of the respondent No. 1 released the vehicle without any hitch or hindrance. This is ample to prove that neither the appellant was involved in any type of smuggling nor the goods transported by him are "smuggled goods". Rendering the intercepting of the vehicle and detention and seizure of the goods nullity to law as held by the Tribunal in H-185/2009 Noor Muhammad son of Muhammad Gul, Imtiaz Ali son of Pir Buksh v. Deputy Collector of Customs, (Adjudication) Hyderabad and Lahore High Court reported judgment 2010 PTD 2015 Collector of Customs v. Rehmat Afridi. On the basis of foregoing the Tribunal answered issue No. (ii) in negative.

14.That as regard issue No. (iv), one has to look into the vital fact that as to whether the goods transported by the appellant were freely available in the open market without any restriction, in case those are available then such goods does not fall within the degree of smuggled as defined in section 2(s) of the/Customs Act, 1969 notification No.118(I)/83 dated 12-2-1983, S.R.O. 566(I)/2005 dated 6-6-2005 and S.R.O. 499(I)/2009 dated 13-6-2009 and are to be presumed to have been duty paid as held by Supreme court of Pakistan in reported judgment 1995 SCMR 387 1995 SCMR 387 Sikandar A. Karim v. The State. The Double Bench of the Hon'ble Supreme Court comprised of Justice Saeed-uz-Zaman Siddiqui and Justice Mukhtiar Ahmed Junejo held in unambiguous term that "If the item alleged to be smuggled by the prosecution were freely available in the open market and the import of such goods were not banned in the country, presumption could arrive that the goods in question were lawfully brought in the country unless contrary was shown". As per dictum laid down by the Hon'ble Supreme Court the Appellate Tribunal in Customs Appeal No.339/2000 Mr. Muhammad Hanif v. The State and 301/2003 Nasser Ahmed v. Collector of Customs, Sales Tax and Excise, Quetta that held that "to produce legal import documents is nothing but to put undue pressure on the business community in spite of the fact that it has been observed number of time by the Supreme Court of Pakistan that the goods which are freely available in the market are presumed to be have been legally imported and duty paid. Even otherwise no reasonable ground has been given in the order-in-original that even for the sake of arguments, it is taken that the receipt produced by the appellant and issued by Saifullah Khan have no legal status then also it cannot be concluded that the said transaction was illegal, making way to call upon appellant to produce import documents. The issue No. (iv) is answered in affirmative.

15.That as regard issue no (v), firstly, the appellant submitted copies of respective Good Declaration and purchased receipt with the respondent No. 1 after detention of the goods, secondly with the reply to the show cause notice dated 5-7-2011 submitted with respondent No. 2 as exhibit as AC -AC19 at pages 193 to 237, thirdly with the respondent No. 3 as exhibit S to S19 at pages 117 - 201 of the memo of appeal and finally with the instant appeal as exhibit v. to V19 at pages 163 - 247. Veracity of which has not been challenged by the respondent to this date, this amount to admission. With that the appellant discharged the burden of proof laid upon him under section 187 of the Customs Act, 1969 and the respondents failed to prove the charge of "smuggling " or transportation of "smuggled goods". To the contrary, the respondent No.1 despite mandated under Articles 117 and 121 of Qanoon-e-Shahdat (10 of 1984) and umpteenth reported judgment referred by the appellant at para 7 (III) (h) of the order, failed to discharge burden of proof as the same stood shifted on their shoulders, as it is on the person leveling the allegation to proof those,. The Tribunal feels appropriate to reproduced herein below the verbatim of reported judgment PLD 1996 Karachi 68 and 2012 PTD 428, wherein their lordship of the Hon'ble High Court of Sindh held that:

"For every offence for which the accused is charged under the Customs Act he shall have to disprove the allegation of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statues which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discretion vested upon the executive authorities. As absolute power corrupts an interpretation fettering the discretion of the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to section 187 the entire burden to dispute the entire case rest upon the accused alone. The executive authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided.

On the basis of Article 117 and 120 of Qanoon-e-Shahadat and the law laid down by the Superior Judicial for a the Tribunal answered the issue no (v) in affirmative.

16.That as regards the issue Nos. (vi) & (vii), the Tribunal note with concern that how the respondents Nos. 1 and 2 can order release of the impugned smuggled goods on payment of 10% and 20% redemption fine in addition to the leviable duty and taxes on the value determined by Model customs Collectorate of Hyderabad under Notification No.499(I)/2009 dated 13-6-2009. When the said notification no where empowers any authority to release the smuggled goods upon payment of fine instead the notification direct in clear terms that "no option shall be given to pay fine in lieu of confiscation in respect of smuggled goods falling under clause (s) of section 2 of Customs Act, 1969 (VI of 1969), while ordering release of the goods the authorities acted in violation of the notification, which is not permitted under law being the creature of statute. Notwithstanding, to the expression of notification of respondents Nos. 2 and 3 admitted in categorical terms while ordering release that the goods were not smuggled goods instead were lawfully imported/locally purchased goods those should had been released unconditionally without any fine or duty and taxes, passing order for release of non smuggled goods on payment of fine in addition to leviable duty and taxes is not permitted under law. Their act is in derogation of the proposition of law and amounts to double taxation, which is prohibited under the article of Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial fora in reported judgments 1992 PTD 593, 2003 PTD (Trib.) 928, 2010 PTD 1515, 2009 PTD (Trib.) 2025. The issue No (vi) & (vii) are answered in negative.

17- That as regards to the issue No. (viii), the show cause notice by the respondent No. 2 was issued on 26-3-2011 and order under the proviso of subsection (3) of section 179 of the Customs Act, 1969 should had been passed by the respondent within 120 days from the date of issuance of show cause notice or within a further extended period of 60 days due to emergence of "exceptional circumstances" prior to expiry of initial period of 120 days after serving a notice to the person concerned as held by the Hon'ble Supreme Court of Pakistan in 1999 SCMR 1881 and thereafter recording the exceptional circumstances for the extension of further period. In the instant case the order-in-original was passed on 5-9-2011 after the expiry of initial period of 120 days without any extension as evident from the order which is silent in this regard beside nothing was placed on record of the Tribunal for confirmation of the fact by the respondent No. 1 that as to whether any extension was given by the Collector of Customs in lawful legal prescribed manners in the provision of the Act and by the Superior Judicial fora. Rendering the order-in-original barred by time 43 days and as such without power/jurisdiction and not enforceable under law. The issue No. (viii) answered in affirmative.

18.That as regard the issue No. (ix), the appeal was filed by the appellant before the respondent No. 3 on 24-9-2011 and order -in-appeal was issued on 15-5-2012, after expiry of entire stipulated period of 180 days, meaning thereby that beyond limitation period prescribed in terms of subsection (3) of section 193-A of the Customs Act, 1969. The final date for deciding the appeal expired on 23-3-2012. It is to be noted that no extension was even accorded prior to expiry of initial period of 120 days i.e. on or before 24-1-2012. Rendering the order-in-appeal beyond the period of limitation by (111) days, hence it is ab initio null and void. The issue of time bar has been time and again discussed in a number of judgments delivered by the superior judicial fora and the provisions relating thereto are mandatory in nature for implementation by all subordinate judicial and quasi-judicial forums in view of the "Doctrines of Binding Precedents and Stare Decissus". In this connection it is a misconstrued position nurtured by the revenue that time period prescribed under the relevant statutes of the Customs Act, 1969 is administrative and directory in nature and not mandatory, hence does not affect the proceedings, if any, concluded after expiry of time limit. In this regard, reference to the Article 254 of the Constitution of Islamic Republic of Pakistan in like cases is also not pertinent. The Article 254 of the Constitution is general in nature and does not specify or rebut statutory provisions contained in special/ specific Acts. Otherwise there is no requirement for legislature to prescribe different limitation periods for different statutes in presence of the aforesaid Article. Redundancy cannot be attributed to these statutory prescribed time limits.

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 document has become dead on account of non timely extension of time period prior to expiry of entire stipulated 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 merits of this case:

"We are of the considered opinion that once a matter becomes barred by time then the subsequent enhancement in the period of limitation shall not have the effect of reopening the pasted 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.

(iii)"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."

(iv)The claim of the revenue that the prescribed limitation of 45 days from completion of adjudication proceedings as provided through Finance Ordinance, 2000 and enhanced to 90 days by Finance Act, 2003 is merely directory cannot be accepted. It is settled law that where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen the prescription of time is deemed directory. However, where a public functionary is empowered to create liability against a citizen only within the prescribed time, it is mandatory. The acceptance of contention of the revenue in that regard will make a provision of law redundant and nugatory. Redundancy or superfluity of an act of Parliament and a provision of law cannot be readily accepted. All the more so when the prescribed limit is beneficial for the citizen and restricts the executive power to touch the pocket of a tax payer thereby creating threat after its expiry even if there was good case for creation of liability he will not be dragged in."

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 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 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 Honourable Supreme Court of Pakistan in Nagina Silk Mills Lyallpur v. The Income Tax Officer and the Income Tax Appellate Tribunal, Pakistan reported as PLD 1963 SC 322.

" in so many words referred to legal position that once limitation has started to run and had come to end the assessee has required vested right of escapement of assessment by lapse of time."

The Honourable Supreme Court of Pakistan in the above referred to judgments observed as under: -

"The Court must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enhancement would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails. Reference may be made in this connection to page 206 of Maxwell on the Interpretation of Statute, Eleventh Edition. Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing stature. The appellant herein had already acquired the vested right of escaping assessment, by lapse of time, when the 1960 Ordinance was enforced. In all probability, the Legislature never intended that he period of limitation prescribed in the Act should become variable with the charges in the "financial year" or "year" inserted in the Act for certain other purposes, namely, to accord with the new accounting years adopted by Government."

In the case of Pace International Rawalpindi v. Secretary, Revenue Division, Islamabad, the Federal Tax Ombudsman (FTO) while their judgment reported as PTLC 2005 CL 836 has observed that the assessment of sales tax of a person in default was to be made within 45 days of the issuance of show cause notice or within extended time, the issuance of show cause notice and passing of order-in-original beyond that period is time barred. This position was reinforced in their judgment of SS Oil Mills Ltd. Vs. Secretary Revenue Division Lahore reported as GST 2005 CL 592 regarding the orders issued beyond statutory limitation period. The judgment of the Federal Tax Ombudsman (FTO) in the case of Pace International Rawalpindi by the President of Pakistan in their order reported as PTCL 2005 CL 841 states that the time limit prescribed under section 36(3) is mandatory because a public functionary is empowered to create a liability against a citizen.

The same view point has been taken by the Honourable Supreme Court in their judgment reported as 1992 SCMR 1898. It in so many words states that while construing the financial statute, it terms are strictly to be followed.

" .Thirdly, while considering a financial statue, its terms are strictly to be followed. Keeping in view these principles, for short-levied duties on account "of inadvertence, error or misconstruction", section 32(3) of the Customs Act, 1969 provides that for recovery notice shall be served 'within six months'. If that is not done, like a suit for recovery of money after lapse of time prescribed by law of limitation, the recovery becomes unenforceable. Therefore, the provision is not merely directory as concluded by the learned Deputy Attorney-General .."

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) 109 Taxation 221(sic), 2004 PTD 369, 1998 MLD 650, 2005 PTD 23, 2003 PTD 2821, 2004 PTD (Trib) 2898 and 2007 PTD 2092, 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263, 2009 PTD 1978, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 79 and 2012 PTD (Trib.) 1650. Since the initial period of 120 days stood expired on 24-1-2012, without any extension, the order-in-appeal becomes barred by limitation period by (111) days rendering it without power/jurisdiction, hence ab initio null and void and not enforceable under the law. The issue No. (ix) answered in affirmative.

19.That as regard to issue No. (x), The Tribunal observed that the respondent No. 2 has issued the show cause notice in mechanical manner as the same is based on the contravention report irrespective of the fact that it was mandated upon him to determine himself the actual facts of the case and applicable provision of the Act, Rules and Regulation independently and fairly not merely on the basis of the opinion forwarded to him by the official of respondent No. 1 as show cause in the vital documents and it should be a proper legal documents forming the root cause of the case. The show cause notice in the instant case is defective and nullity to the provision of the Act, rules and regulation as held by the Tribunal in para supra rendering it ab initio being nullity to law laid down by the High Court of Sindh in reported judgment 2004 PTD 369 Messrs Zeb traders, Karachi v. Federation of Pakistan that "The proceeding before Adjudicating Officer, under the Customs Act, 1969 are in the nature of quasi judicial proceedings and issuance of notice under section 180 of the Customs Act, is very important documents. The decision to issue show cause notice is to be taken by the Collector, Adjudication, by application of independent mind and not merely signing the draft show cause notice submitted by the investigation agency separate from the Adjudication Department and each category of officers are required to perform their respective functions/duties under the law. The practice to submit draft show cause notice by the Director General of Intelligence and Investigation to the Collector Adjudication is depreciated." The issue No. (x) answered in negative

21.In view of the foregoing the order-in-original is based upon proceeding which is infested with patent illegalities and which is held to be null and void. As such the order -in-original as well as impugned order of the Collector (Appeals) based on such proceedings are also ab-inito, null and void and are therefore, set aside. The subject appeal is accordingly allowed as prayed.

JJK/189/Tax(Trib.)