S.S. TRADING VS ADDITIONAL COLLECTOR OF CUSTOMS, 2014 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 510 (2013)

2014 P T D (Trib.) 510

[Customs Appellate Tribunal]

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

Messrs S.S. TRADING

Versus

ADDITIONAL COLLECTOR OF CUSTOMS

Customs Appeal No.K-471 of 2012, decided on 03/06/2013.

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

----Ss. 3 & 179---S.R.O. 886(I)/2012, dated 18-7-2012---Issuance of show-cause notice dated 24-8-2012 by Additional Collector of Customs, MCC of PaCC (Executive Collectorate)---Validity---Government had withdrawanpowerofadjudicationfromExecutiveCollectoratew.e.f. 1-8-2012---Additional Collector was non-existing authority w.e.f. 1-8-2012 by virtue of S.R.O. 886(I)/2012, dated 18-7-2012---Impugned notice for being beyond 31-7-2012 rendered the whole exercise as coram non judice.

Major Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184;,Omer and Company v. Controller of Customs,(Valuation): 1992 ALD449 (1) Karachi; AAA Steel Mills Ltd., v. Collectorof Sales Tax and Central Excise Collectorate of Sales Tax 2004 PTD 624; Ali Muhammad v. Hussain Buksh and others PLD 1976 SC 514; Land Acquisition Collector, Noslzehra and others v. Sarfraz Khan and others PLD 2001SC 514; S.T.A. 444/03, S.T.A. 465/07, 2010 PTD (Trib.) 1636; 2010 PTD 465; 2010 PTD (Trib.) 2158; 2011 PTD (Trib.) 1010; 2011 PTD (Trib.) 1680; 2011 PTD (Trib.) 2086; Director, Directorate General of Intelligence and Investigations and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129; 1990 SCMR 1059(sic); 2002 SCMR 312, 2002 PTD 976; 2007 PTD361;2009PTD1507;2005SCMR492and2010SCMR431 ref.

(b) Notification---

----Amendment of---Scope---Notification could be amended through a subsequent notification, and not by any executive order.

Messrs Paramount Corporation v. Additional Collector of Customs (Adjudication) MCC (PaCCS) Customs Appeal No.K-24 of 2013; 2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; 2006 SCMR 129; PLD 1996 Kar. 68; 2006 PTD 978 and PLD 1971 SC 184 rel.

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

----Ss. 25, 25-A(1) & 80---Customs Rules, 2001, R. 438---Guidelines issued by Assistant Collector of Customs for assessment of imported goods and levelling charge of mis-declaration---Validity---Value of imported or exported goods could be determined under S. 25 of Customs Act, 1969---Assistant Collector of Customs had power to determine prices of imported/exported goods for levy of duty and taxes, but could not fix valuation thereof through a guideline---Assessment of imported goods could not be completed under S. 80 of Customs Act, 1969 and R. 438 of Customs Rules, 2001---Impugned guidelines were, without jurisdiction, void and of no legal effect.

2005 SCMR 492; 1990 SCMR 1059; 2002 SCMR 312; 2002 PTD 976; 2007 PTD 361 and 2009 PTD 1507 ref.

Nadeem Ahmed Mirza for Appellant.

Ghulam Yasin (P.A.) for Respondent.

Date of hearing: 7th March, 2013.

ORDER

GHULAM AHMED, MEMBER (TECHNICAL-II).---By this order I intend to dispose off Customs Appeal No.K-471/2012 filed by the appellant against Order-in-Original No.40780 of 2012 dated 10-9-2012, passed by the Additional Collector of Customs, Model Customs Collectorate of PaCCS, Customs House, Karachi.

2.Brief, facts of the case as reported are that MessrsS. S. Trading, Karachi (hereinafter referred to as respondents) filed a Goods declaration, electronically, bearing CRN No.KCSI-HC-21369-13082012 for import of Angle, Tea Bar, Runner, Cross Tee, 20920 Kgs. The respondents determined their liability of payment of applicable duty and taxes and sought clearance under section 79(1) of the Customs Act, 1969. Inordertocheckastowhethertherespondentshadcorrectlypaid the legitimate amount of duties and taxes, the under reference GD was selected for scrutiny in terms of section 80 of the Customs Act, 1969.

3.Scrutiny of the Goods declaration in the light of examination report, revealed that the respondents had misdeclared the weight of the impugned goods as on examination that same was found as 22010 kg and 1090 kg weight found excess which is 5.21% of the total declared consignment weight. Furthermore, it was found that the impugned goods were correctly classifiable under HS Code 708.9090 attracting 20% customs duty even wider FTA "regime" the said HS Code had also been mentioned in FTA certificate provided by the respondents and available in the system. The respondents claimed the goods under incorrect HS CODE Heading 7216.5000 with 16% customs duty to avoid higher tariff rate. As regard the value of the respondents, declared value as only US$. 7648.35 @ 365/PMT, where as per the data minimum assessable value worked out as US$. 22010 accordingly to which declared value is lower to the extent of 187.78%.

4.It is pertinent to mention that in PaCCS while filing the GD, it is mandatory for the respondents to provided the correct relevant information/data but in the instant case the respondents had deliberately concealed the required information i.e. weight, value and HS CODE in this automated environment just to avoid the duty and taxes.

5.The aforesaid facts proved that the respondents had deliberately misdeclared weight and value of the impugned goods and attempted to evade an amount of Rs. 732,356 as customs duty and other taxes. The value of offending goods is to the tune of Rs.21,27,170.00.

6.Examination Report is as follows:-

"NO DOCUMENTS FOUND IN SIDE THE CONTAIENR EXAMINED THE GOODS IN THE LIGHT OF GD RETRIEVED FROM SYSTEM. DESCRIPTION CEILING SUSPENSION SYSTEM COMPRING OF ANGLE, TEE BAR, RUNNER, CROSS TEE (NET WT: 22010 KGS APPROX) 100% WT FOUND 22860 KGS GROSS VIDE KICT CERTIFICATE NO. 212027 DATED 13-8-2012"

7.Therefore the appellant was called upon the show cause as to why action under clauses 14, 14A and 45 of section 156(1) of the Customs Act, 1969 may not Act, 1969 clause 11 of section 33 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001, which was replied vide letter dated 28-8-2012 controverting the charge of misdeclaration of description, weight, HS Code Heading and values. The respondent disagreed with the contention of the appellant with the exception of weight and passed order-in-original dated 24-8-2012 holding that the goods in question are classifiable under HS CODE 7308.9090 and were ordered to pay duty and taxes leviable under the said HS Code heading in addition to impose penalty of Rs.25,000.00. The operative part of the impugned order read as under:--

"I have examined record of the case, written reply of the respondents, comments of the Principal Appraiser (Group-III) and heard arguments of both sides. It has been alleged that the respondents mis-declared the weight and classification of the impugned goods. The respondents have denied the allegation. They contended that they declared weight 21.990 MT as gross weight and same was taken as net weight, the shipper shipped net weight 20.92 MT, while adding tare weight of 1070 Kgs in that, the gross weight comes to 20.990/MT, meaning thereby that shipper added 0.727kgs against each carton in the declared weight for calculating the gross weight; to the contrary, the examination staff considered weighment through KICT weigh Bridge reading as 22.860/MT on and if the tare weight shown by the shipper to the extent of 1070 kg is deducted from this, the actual net weight work out as 21.79 MT, which is even lessthan the gross weight declared. The respondents also contented that the HS Code/heading declared i.e. 7216.5000 is also correct, as it is for other "angle, shape and sections, not further worked than hot rolled, hot drawn or extruded". The examination report confirmed that the goods are angle, T-bars runner and Cross -T's which falls under the words, shapes and sections and these are not further worked instead are galvanized/coated. The learned advocate contended that the Chapter notes also substantiate their stance is further stood substantiated that " the product of this heading may have been subjected to work such as drilling, punching or twisting or to surface treatment, coating plating and cladding providedthey do not thereby assume the characteristics of Article or the product falling in other heading ". The respondent pointed out that their stand is further stoodsubstantiatedfromtheguidelineissuedby the Collectorate vide C.No. Guideline /GRHI/1-2011 dated 10-5-2011 showing the HS CODE heading of the product imported by them to be falling under Chapter 72.16, and to be assessed US$. 1.00/KG.

The Principal Appraiser (G-III) argued that the respondents have stated that HS CODE/Heading declared/claimed by the respondents covers the goods which are not further worked than hot rolled, hot drawn or extruded; whereas, as per images of the impugned goods, the goods are article of non steel bars. Moreover, FTA Certificate also shows that the impugned goods are classifiable under HS Code/heading 7308.9090.

The matter has been examined. As far as issue of excess weight of the impugned goods is concerned, it has been observed that the respondents contention that their is no mis-declaration, is tenable under law. However, after considering the arguments of both sides, it is held that the impugned goods fall squarely under HS CODE/heading 7308.9090. However, under the ascertained HS CODE/heading 7308.9090, customs duty chargeable is 20% and under declared HS CODE/ heading 7216.5000 customs duty is also 20% AJ Ad. Val. Under provision of Customs General Order 12/2002 (para-101) Notification S.R.O. 374(I)/2006 (para-B-II), when a consignment is found to contain goods of description other than the one declared falling under separate HS CODE/heading but chargeable to same rate of duty imposition of fine under S.R.O. 499(I)/2009 dated 13-7-2009 is un-warranted. The assessing authorities are directed to assess duty and taxes on the basis of ascertained HS CODE of the impugned goods and release the goods on payments of leviable duty and taxes thereon. However, the respondent failed to appropriately declare the correct classification of the impugned goods, therefore, a penalty of Rs.25000 is imposed under clauses (14) and (14A) of section 156(J) of the Customs Act, 1969 on the respondents. The respondents are advised to be careful in future.

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

(a)The Government of Pakistan in exercise of power conferred under section 3 of Customs Act, 1969 (IV of 1969) read with section 179 thereof has withdrawn the power of adjudication from the Executive CollectorateandhasformedCollectorateof Customs (Adjudication) vide S.R.O. No. 886(I)/2012 dated18-7-2012, which is effective from 1-8-2012, Meaning thereby that every adjudication after 1-8-2012 has to be done by the officer of CollectorateofCustoms(Adjudication)andnotbythe Executive Collectorate. While issuing show-cause notice dated 24-8-2012 the respondent has transgressed the authority vested with the Collectorate of Customs (Adjudication) rendering the issuance of show-cause notice being in-flagrant violation of law and as such coram non judice hence void and ab-initio.

(b)The respondent is not designated an Officer of Inland Revenue in terms of provision of, Clause (c) of subsection (3) of section 25 of the Sales Tax Act, 1990 and section 120 of the Income Tax Ordinance, 2001 and as such is not empowered to issue Show-cause notice and pass order-in-original under section 11 of the Sales Tax Act, 1990 and section 162(1) of the Income Tax Ordinance, 2001. Hence, by issuing show-cause notice and passing order-in-original the respondent usurped the power of Officer of Inland Revenue to which he is not vested, rendering the issuance of show-cause notice and order-in-original being a flagrant violation of law and as such coram non-judice.

(c)That wherein any action is taken in the absence of availability of powers or show-cause notice or order-in-original has been passed without jurisdiction/power, such orders are of no legal effect as held by their Lordship of Supreme Court of Pakistan that "it is an element to principle that if a mandatory condition for the exercise of jurisdiction by Court, Tribunal or Authority is not fulfilled then the entire proceeding which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings in appeals or revisions equally suffers from illegality and are without jurisdiction" Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184),Omer and Company v. Controller of Customs,(Valuation): (1992 ALD449 (1) Karachi AAA Steel Mills Lid v. Collectorof Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001Supreme Court 514 Land Acquisition Collector, Noslzehra and others v. Sarfraz Khan and others, S.T.A. 444/2003, S.T.A. 465/07, 2010 PTD (Trib.) 1636, 2010 PTD 465, 2010 PTD (Trib.) 2158, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 1680, 2011 PTD (Trib.) 2086.

(d)That it is well settled principle of law that, if the law had prescribed method for doing of a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or attaining the objectives of performing or doing of a thing in a manner other than provided by law would not be permitted as declared in the landmark judgment of Director, Directorate General of Intelligence and Investigations and others v. MessrsAl-Faiz Industries (Pvt.) Ltd., and others reported as 2006 SCMR 129 wherein their lordship of the Supreme Court had observed as under:

"INTERPRETATION OF STATUTE"

"Each and every word appearing in a section is to be given effecttoandnowordistoberenderedasredundantorsurplus.

When the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred.

If the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facitcessare taciturn"

(e)That despite of the fact that respondent in his order at para 11 as held in clear terms that there exist no misdeclaration of weight to the extent of 5.21% in excess as declared. The respondent subordinate ignores that fact and completed the assessment of the appellant goods on 22160kgs instead of actual 20990 kgs and levied the duty and taxes on that, which is nullity to order and as such void ab-initio.

(f)That as regards the specification i.e. correct as the declaration has been verified by the examiner in the examination report. Meaning thereby there is no misdeclaration in material particular. Similarly, the HS Code/heading given by appellant i.e. 7216. 5000 is also correct, as it is for other "angle, shape and section, not further work then hot rolled, hot drawn or extruded" The declaration given in GD and confirmed by the examiner is that the goods are angle, T-bars runner and Cross-Tee's, which falls under the words, "shapes and section", and these are not further worked instead are galvanized/coated the Chapter Note of the World Customs Organization substantiate the stance of the appellant that "the product of this heading may have been subjected to working such as drilling, punching or twisting or to surface treatment such as coating, plating and cladding provided they do not thereby assumed the characteristic of article or the product falling in other heading". The stance further stood substantiated from the guideline issued by the Collectorate vide C.No. Guideline/ GRIII/1-2011 dated 10-5-2011 showing the HS CODE heading of the product imported by the appellant as to be falling under Chapter 72.16. The opinion formed by the Principal Appraiser and the respondent is nullity to the definition given in Chapter Note and also in negation to the Collectorate own already formed opinion.

(g)That to the contrary, the HS Code/heading suggested by the Principal Appraiser 7308.9090 and held by respondent in the order covers structures and parts of structures e.g. bridges and bridge section, lock gates, towers, lattice masts, roofs and roofing frame works, doors and windows and their frames and threshold for doors, shutter, balustrabes, pillars and columns), of ironand steel ; plates , rods , angles , shape, sections , tubes and the like, prepared for use in structure of iron or steel and characteristics of these are that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, section, sheets, plates wide, flat including so called universal plates, hoop, strips, forging or casting, by riveting, bolting, welding etc. Such structure sometimes incorporates products of other headings such as panel of woven wire or expanded metal of heading 13.14. Parts of structure include clamps and other devices specially designed for assembling metal structure element of round crossed section (tubular or other). A part from these structure, this heading also includes products such as "pit head frame and super structure; adjustable or telescopic props tubular props, extensible coffering beams, tubular scarf-folding and similar equipment; slice gates, piers, jetties and marine moles, light house super structure; masts,gangway, rails, bulk head etc., foil ship, balconies and verandas, shutters, gates, sliding door, assembled railing and fencing, levelled crossing gates etc. The products imported by the appellant were/are not structure and not to be used in manufacture of any of the listed structure and the article and for that reason in the past no objection has been raised in regards to the classification and HS Code/heading. In support of his stance the appellant invite the attention to his goods declaration annexed as Exhibit "J" confirming that despite levelling allegation of misdeclaration of HS Code/heading, the assessment of the appellant consignment was completed under declared HS Code/heading i.e. 7216.5000 and this further stood substantiated from the annexed copies of GD's for the years 2011 to 2012 and data of the Collectorate maintained under Rule 110 of the period expressed in. Rule 107(a) ibid confirming that the products identical to appellant were cleared under HS CODE heading 7216.5000 and not under suggested HS Code/heading 7308.9090. The respondent Collectorate while doing so also extended the benefit of FTA regime notified vide S.R.O.No. 659(I)/2007 dated 30-6-2007 as the item in question is clearly mentioned as Serial No. 3093 of Table 1. Hence, ordering appellant goods under 7308.9090 by the respondent is without any basis and nullity to the explanatory note and rules of consistency and existing practice. (Exhibit "0" & "P to P4").

(h)That the annexed CRN & GD's aptly confirms that the goods identical to the appellant were regularly assessed/cleared under HS Code/heading 7216.5000 while extending benefit of FT A regime since innumerous time without any hitch and hindrance and without recourse to adjudication proceeding by the respondent Collectorate. To the contrary, the appellant has been singled out and has been given a differential treatment by raising an objection in regards to classification despite not warranted as the same was correct and was put on the course of undue adjudication proceeding against the settled principal enshrined in Article 25 of the Constitution of Pakistan and violate the principal of law settled by the Superior Judicial Foras judgments reported as 1990 SCMR 1059(sic), 2002 SCMR 312, 2002 PTD 976, 2007 PTD 361 and 2009 PTD 1507. "A facility allowed to some one and denied to other is discrimination" as held by Hon'ble Apex Court in their judgment 2005 SCMR 492 and in reported 2010 SCMR431 the Hon'ble Apex Court held that:

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

(i)That no charge of value misdeclaration can be levelled unless direct evidence of import is available which has to be supplied in support of allegation as per direction contained in para 78 of CGO 12/2002 dated 15-6-2002. Thereafter in such like ,situation thedifferenceshouldbemore than 30%betweendeclaredand the evidence. To the contrary, in the case of the appellant the charge has beenlevelledonthebasisof guidelinedated10-5-2011, wherein the value of the goods has been fixed by the Collectorate @US$. 1.00/kg, which is without any power/ jurisdiction instead manifestly arbitrary/unilateral under the provision of section 25(A) of the Customs Act, 1969 only Directorate General of Valuation is empowered to fix/determine the value of the goods with the application of section 25 of the Customs Act, 1969. The respondent Collectorate while determining the value through guideline has usurped the power of the Directorate General of Valuation rendering the guideline so issued and the charge of misdeclaration as of no substance and lawful authority, rendering both coram non judice.

(d)If, in applying the provisions of this subsection, there are two or more transaction values of identical goods that meet all the requirements of this subsection and clauses (b),(d)(e) and (f) of subsection (13), the customs value of the imported goods shall be the lowest such transaction value, adjusted as necessary in accordance with clauses (b) and (c)

The respondent has not been able to bring on record any cogent evidence or documents which can prove the declared transaction value of the subject goods tainted or colorable, as evident from the show-cause notice and order-in-original which are silent in this context. Beside the lower transaction value for the subject goods in absence of direct evidence does not necessitate the enhancement of the value, above than to the level of the lowest transaction value for similar/identical goods on record. Rendering the charge of misdeclaration in the show-cause notice/order-in-original and assessment so made of the appellant consignment is illegal and void.

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

9.No cross objection under subsection (4) of section 194-A of the Customs Act, 1969 were submitted by the department, however Mr. Ghulam Yasin, Appraiser, appeared on behalf of the respondent and supported the orders as correct in facts and law and in regards to power/jurisdiction of the authority passing order under the provision of section 179 of the Customs Act, 1969 and section 11 of Sales Tax Act, 1990 and section 162(I) of the Income Tax Ordinance, 2001 and prayed for dismissal of the appeal as of no substance.

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

(i)Whether the respondent was empowered to pass order under section 179 of the Customs Act, 1969 read with Notification No. S.R.O. 886(I)/2012 dated 18-7-2012 beyond 1-8-2012?

(ii)Whether Assessment can be completed in excess to the declared weight despite holding in the order that no mis-declaration in this regard has been established?

(iii)Whether the goods imported falls under HS Code/heading 7216.5000 in the light of the expression given in Custom Tariff and definition given by WCO in Explanatory Note and Guideline of the Collectorate dated 13-5-2011?

(iv)Whether guideline dated 13-5-2011 issued by the Assistant Collector of Customs, Group-II MCC of PaCCS qualify as a valuation ruling under section 25-A of the Customs Act, 1969 and assessment can be made of the imported consignment on the basis of which a charge of misdeclaration can be levelled?

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

11.That as regards issue No. (i), the Government of Pakistan in exercise of power conferred under section 3 of Customs Act, 1969 (IV of 1969) read with section 179 thereof has withdrawn the power of adjudication from the Executive Collectorate and has formed Collectorate of Customs (Adjudication) vide S.R.O. No.886(I)/2012 dated 18-7-2012, which is effective from 1-8-2012, copy of which is available as Exhibit "L" at pages 28-29 of the memo. of appeal. The respondent in the capacity of Additional Collector of Customs, MCC of PaCCS (Executive Collectorate) is non-existent authority in the S.R.O. No. 886(I)/2012 dated 18-7-2012 w.e.f. 1-8-2012, instead he issued show-cause notice dated 24-8-2012 beyond 31-7-2012, when he was empowered to adjudicatethecases of such type. Rendering,thewholeexercisecoram-non-judice as contended by the appellant consultant carries weight. Resultant, he is non-existent authority under section 179 of the Customs Act, 1969. Such authority cannot adjudicate the case opted to issue show-cause notice to the appellant, despite not warranted. Any arguments that the Board has issued direction through a letter to adjudicate cases beyond 1-8-2012, hold no, ground as order so issued by the Board is also illegal by virtue of the fact that a notification can be amended through a subsequent notification and not by, any executive order. On this issue we have already held in Customs Appeal No. K-24/ 2013 MessrsParamount Corporation v. Additional Collector of Customs (Adjudication) MCC (PaCCS) that "the Board can only amend a notification in terms of section 5(1) read with section 179(2) of the Customs Act, through notification for dispensation of the powers, to overcome the exceptional circumstances caused during the transitional period faced by the respondent Collectorate. The subject legal infirmities were communicated officially through official correspondence to the Board by the Executive Collectorate even then the Board has not made any compliance, the Board had not made any plausible efforts to address the said situation and never tried to issue notification for entrustment of powersfor conducting the adjudication proceeding in accordance with law. It iswell settled principle of law that, if the law had prescribed method fordoing of a thing in a particular manner such provision of law is to befollowed in letter and spirit and achieving or attaining the objectives of performing or doing of a thing in a manner other than provided by lawwould not be permitted" , further stood validated from the reportedjudgments2002 PTD 2457,PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838, 2003 SCMR 1505, 2006 SCMR 129, PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184 , in addition to the citation relied upon the appellant in grounds (iii) & (iv) of memo. of appeal above are direct authorities on the point. The present appeal, can only be allowed on the short point that the impugned exercise conducted by respondent is without power/jurisdiction hence coram-non-judice. The issue No. (i) answered in negative.

12.That as regard issue No. (ii), the goods declaration was examined which transpired that the assessment has been completed by the assessing officer of MCC of PaCCS at ascertain weight of 21990 kgs. Irrespective of the order of the respondent at para 11 that as for as issue of excess weight of the impugned goods is concerned, it has been observed that the respondent contention that there is no misdeclaration is tenable under law while excepting the contention on the basis of submission by the appellant that their declared weight 21.990 MT as gross weight and same was taken as net weight, the shipper shipped net weight 20.92 MT, while adding tare weight of 1070 Kgs in that, the gross weight comes to 20.990/MT, meaning thereby that shipper added 0.727kgs against each carton in the declared weight for calculating the gross weight; to the contrary, the examination staff considered weighment through KICT weigh Bridge reading as 22.860/MTon and if the tare weight shown by the shipper to the extent of 1070 kg is deducted from this, the actual net weight works out as 21.79 MT, which is even less than the gross weight declared. Hence, the assessment should had been completed on the basis of declared weight of the appellant. The issue No. (ii) is answered in negative.

13.That as regard the issue No. (iii) Examination report, HS Code/heading 7216.5000, and 7308.9090 and Explanatory Notes of HS Codes issued by WCO and guideline of the Collectorate dated 13-5-2011 is taken into consideration. The examination report of the consignment read as " Cealing Suspension system comprising of angles, Tee Bars, Runner/and Cross Tee" and description given in Customs Tariff for HS Code/heading is 72.16 read as "angle, shape and section of iron and non alloy steel"" and for HS CODE heading 73.08 read as "structure (excluding prefabricated building of heading 94.06) and parts of structure (for example, bridges and bridge-sections, lock-gates, towers, lattice masts, roofs, roofing frame-works, doors and windows and their frames and thresholds for doors, shutters, balustrabes, pillars and columns) of iron or steel plates, rods, angles, shapes section, tubes and the like , prepared for use in structures of iron or steel." The WCO in Chapter Note 72.15/16 at pages 1089 and 1090 further defined the product of HS CODE heading 7216 as "the product of this heading may have been subjected to working such as drilling, punching or twisting or to surface treatment such as coating, plating and cladding provided they do not thereby assumed the characteristic of article or the product falling in other heading" and for 73.08 "covering structures and parts of structures (e.g. bridges and bridge section, lock gates, towers, lattice masts, roofs and roofing frame-works, doors and windows and their frames and threshold for doors, shutter, balustrabes, pillars and columns), of iron and steel; plates, rods, angles, shape, sections, tubes and the like, prepared for use in structure of iron or steel and characteristics of these are that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, section, sheets, plates wide, flat including so called universal plates, hoop, strips, forging or casting, by riveting, bolting, welding etc. Such structure sometimes incorporate products of other headings such penal of woven wire or expanded metal of heading 13.14. Parts of structure include clamps and other devices specially designed for assembling metal structures element of round crossed section (tubular or other). Apart from these structure, this heading also includes products such as "pit head frame and super structure; adjustable or telescopic props tubular props, extensible coffering beams, tubular scarf-folding and similar equipment; slice gates, piers, jetties and marine moles, light house super structure; masts, gangway, rails, bulk head etc., for ship; balconies and verandas, shutters, gates, sliding door, assembled railing and fencing levelled crossing gates".

The product imported by the appellant were/are galvanized normal angles, Tee bars, Runners and Cross Tee not structure and not to be used in the manufacture of any structure listed in HS Code/heading 73.08 and its definition issued by WCO and this stood proved from the examination report, evidential documents available at pages 34-41 as Exhibit P to P4 of memo. appeal as such type of goods been cleared by the Collectorate under HS Code/ Heading 7216.5000 without any hitch and hindrance. This further stood substantiated from the guideline dated 13-5-2011 issued by the respondent Collectorate that Ceding Grid Main Tee, Angles and Main Runner etc. of Chapter 7216 to be assessed @ US$. 0.1/kg. This Tribunal observed with concern that the respondent has not given his finding in regards to the classification in the light of the respective HS CODE heading, definition of WCO, evidences and guidelines issued by the Collectorate. Instead summarily held that the goods fall under HS CODE heading 7308.9090 while ignoring all those and to the definition of WCO that "Angles, Tee-Bars, Runner and Cross Tee", can be surface treated such as coating, plating and cladding i.e. galvanized by the appellant in the instead consignment, therefore this Tribunal hold that the goods imported in the instant consignment sparely falls under HS CODE heading 7216.5000 and answer issue No (iii) in affirmative.

14.That as regard issue No. (iv), the Tribunal feel appropriate to reproduce the provision of Section 25A(l) of the Customs Act, 1969 prior to answering the question for easement.

[Section 25A

"Power to determine the customs value"---(1) Notwithstanding the provisions contained in section 25, the Collector of Customs on his own motion, or the Director of Customs Valuation [ on his own motion or] on a reference made to him by any person (or an officer of Customs], may determine the customs value of any goods or category of goods imported into or exported out of Pakistan, after following the methods laid down in section 25, whichever is applicable.

(2)The Customs value determined under subsection (1) shall be the applicable customs value for assessment of the relevant imported or exported goods.

(3)In case of any conflict in the customs value determined under subsection (1) the Director General of Customs Valuation shell determine the applicable customs value]

The value of imported goods under the provision of section 25 of the Custom Acts, 1969 can be determined/fixed with the application of different subsections in sequential manner and that shall be the value at the prescribed time, on a sale in open market of the country of importation from where the goods are consigned. The section 25-A (1) of the Act empowers either Collector of Customs or Director of Directorate General of Valuation to determine such prices for levy of duty and taxes. The provision no where states valuation of imported goods can be made/fixed by Assistant Collector of Customs. Resultant, fixing of valuation through a guideline is based on mala fide and violative of section 25 and section 25-A(1) of the Customs Act, 1969 and Chapter IX of Customs Rules, 2001 because the said Act and Rules did not empowers the Assistant Collector to fix value of either imported or exported goods. The Act of issuance of Guidance fixing the price is in the absence of legal sanction, amounts to transgression of authority and forced construction of law as held by Superior Judicial Fora in umpteenth reported judgments and these depreciate such unilateral and arbitrary determination of import value which render the valuation of the subject goods fixed as a nullity in the eyes of law. Hence, this Tribunal hold the Guideline dated13-5-2011 as ab-inito void and of no legal effect and no assessment can be completed of the imported goods under Section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 and answer the issue No. (iv) in negative.

15.That as regard issue No. (v), the consultant for the appellant referred to CR No.KCSI-HC-18353-10072012, KCSI-HC-5534-13012012 and I-HC1915589-100811 and I-HC 2019470-151211041108 and Data maintained by the MCC of PaCCS under Rule 110 of the period expressed in Rule 107(a) of Custom Rules, 2001, where similar/identical goods cleared under HS CODE heading 7206.5000 and without any hitch or hindrance and even without recourse to the adjudication "A facility allowed to some one and denied to other is discrimination" as held by Hon'ble Apex Court in their judgment 2005 SCMR 492 and in report 2010SCMR 431 the Hon'ble Apex Court held that:-

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

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

16.In view of the foregoing the order of the respondent is based upon proceedings which are infested with patent illegalities and is held to be null and void. This being so, the impugnedorderoftherespondentis set aside. The subject appeal is accordingly allowed as no order to cost.

17.Order passed accordingly.

SAK/125/Tax(Trib.)Order accordingly.