SRS IMPEX VS SUPERINTENDENT DIRECTORATE GENERAL OF INTELLIGENCE, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1469 (2014)

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

----Ss. 2(s), 9, 10, 16, 32, 32-A, 79, 80, 156, 168, 171, 177, 179(3), 194-A---S.R.O. No.486(I)/2007, dated 9-6-2007---Notification No.188(I)/83 dated 12-12-1988---Mis-declaration---Seizure and confiscation of goods---Powers of Directorate of Intelligence and Investigation to intercept and detain goods---Validity---Appellant/importer was found involved in importing and clearing the consignment of miscellaneous items in excess through mis-declaration of description, quantity, weight and value in connivance with other associates-in-offence evading thereby huge amount of Government's legitimate duty and taxes---Vehicle carrying the container, was intercepted and detained for examination---Consignment was examined by Directorate General of Investigation and Intelligence-FBR, which after examination seized and confiscated the container under S.168 of the Customs Act, 1969---Collector of Customs/Adjudicating Authority, issued show-cause notice and thereafter vide order-in-original, held that charge of mis-declaration against the importer had been established, confiscation of seized goods was ordered---Validity---Issues to be considered by the Tribunal were: Whether Directorate General had the powers to intercept and detain the goods transported within the city or territory of Pakistan on suspicion of smuggled goods; whether, officials of Directorate General were empowered to take cognizance in the matter relating to Ss.16, 32, 32-A, 79, 80, 83, 195 of the Customs Act, 1969 read with S.R.O. No.486(I)/2007, dated 9-6-2007, and to detain/seize the consignment; whether Adjudicating Authority was competent to adjudicate the case involving amount of duty and taxes of Rs.16,15,066 in derogation of powers defined in S.179(1) of the Customs Act, 1969; and whether order-in-original was passed within the period of 120 days---Held, Directorate General derived powers for functioning within the territory of Pakistan from S.R.O. No.486(I)/2007, dated 9-6-2007 for thwarting the act of smuggling, but that would not mean that Directorate General could intercept and detain the goods transferred within city or territory of Pakistan; its jurisdiction was only restricted to the area falling outside the purview of Ss.9 & 10 of the Customs Act, 1969, and beyond 5 Kilometers from the border (of India and Iran), as expressed in S.177 of the Customs Act, 1969 and Notification No.188(I)/83 dated 12-12-1983---Board had not delegated the powers to Directorate General under provisions of Ss.16, 32, 32-A, 79, 80, 195 of the Customs Act, 1969---Present case was not of importability and least fell under the ambit of Ss.16, 32, 79, 80 & 83 of Customs Act, 1969---Board or Collector was empowered to reopen the assessment order passed under S.80 of the Customs Act, 1969---Power of adjudication, had to be determined by the Authority on the basis of amount of duty and taxes involved, excluding the conveyance as provided by S.179 of the Customs Act, 1969---In the present case amount of duty and taxes involved was Rs.1,615,066 and case of such amount fell within the powers of Additional Collector---Adjudicating Authority issued show-cause notice and passed order-in-original, while usurping the powers of his subordinate, which was not permitted under the law---Order in question was passed after more than seven months of issuance of show-cause notice to importer, whereas under proviso to subsection (3) of S.179 of Customs Act, 1969, order was to be passed within 120 days of issuance of show-cause notice, or within further extended period of 60 days---Impugned order so passed was barred by limitation---Such order which was without powers/ jurisdiction, could not be enforced under the law---Authorities also ignored the vital fact that assuming of jurisdiction, was of great importance; and power had to be exercised within the allotted sphere---Acting contrary to that was incurable, rather fatal for the case---Assumption of wrong jurisdiction, superstructure built thereon ought to crumble down---Whole proceedings were infested with inherent legal infirmities, substantive illegality which would tantamount to patent violation of mandatory statutory provisions; and in utter disregard of the provisions of the Act and principles of settled law---Order-in-original was held to be null and void, and was set aside---Appeal of importer was allowed as prayed for.

K-719/02; H-720/02; H-686/03; Q-776/04; 2005 PTD (Trib.) 135; PLD 1991 SC 630; 2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; PLD 1996 Kar. 68, 2006 PTD 978; Omer and Company v. Controller of Customs, (Valuation): 1992 ALD 449; Karachi AAA Steel Mills Ltd v. Collector of 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, Nowshera and others v. Sarfraz Khan and others, PLD 2001 SC 514; Messrs Paramount International (Pvt.) Ltd. v. FOP and others 2014 PTD 1256; Major Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184; 2004 PTD 624; All Pakistan News Paper Society and others v. FOP PLD 2004 SC 600; Khyber Tractors (Pvt.) Ltd., v. FOP PLD 2005 SC 842; Pak Suzuki Motors Company Ltd, Karachi v. Collector of Customs, Karachi 2006 PTD 2237; 2009 PTD (Trib.) 1996; 2010 PTD (Trib.) 832; 2009 PTD 1112; 2010 PTD 465; 2010 PTD (Trib.) 1636; Lt. General (Retd.) Shah Rafi Alam v. Lahore Race Club 2004 CLD 373; Khalid Qureshi v. UBL 2001 SCMR 103; East West Steamship v. Queen Land Insurance PLD 1963 SC 663; Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587; Messrs Smith Kline French v. Pakistan 2004 PTD 3020; Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala 2008 PTD 60; Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala 2008 PTD 578; Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others 2009 PTD 762; Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others 2009 PTD (Trib.) 1263; Leo Enterprises v. President of Pakistan and others 2009 PTD 1978; Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal) 2010 PTD (Trib.) 1010; Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS 2011 PTD (Trib) 79; Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS 2011 PTD (Trib) 987; Kaka Traders v. Additional Collector of Post Clearance Audit 2011 PTD (Trib.) 1146; Pak Electron Ltd., v. Collector of Customs, Lahore and others 2012 PTD (Trib.) 1650; 2008 CL 37; 2010 PTD (Trib.) 2158; 2011 PTD (Trib.) 1010; 2011 PTD (Trib.) 1680; 2011 PTD (Trib.) 2086; 2014 PTD (Trib.) 1566; 1983 SCMR 1232; Sahibzada Sharfuddin v. Town Committee 1984 CLC 1517; PLD 1995 Kar. 587; PLD 1992 SC 486; 2001 SCMR 103; 2011 PTD (Trib) 2114; 2011 PTD (Trib) 2557 and Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 ref.

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

----S.206---Correction of clerical error---Scope---Department, had the authority under S.206 of the Customs Act, 1969 for correction of "clerical or arithmetical errors", in any decision or order passed by the Federal Government, Board or any Officer of Customs or errors arising out of accidental slip or omission---Mentioning clerical error, arithmetical error, accident slip only would not mean that nature, or scope of any order could be enlarged, changed or altered by corrigendum or reviewed under provisions of S.206 of the Customs Act, 1969.

(c) Administration of justice---

----If the law had prescribed method for doing of a thing in a particular manner, such provisions of law, was to be followed in letter and spirit; and achieving or attaining the objective of performing, or doing of a thing in a manner other than provided by law would not be permitted.

(d) Administration of justice---

----Courts being custodian of law, were required to maintain the norms of justice and equity; litigants were to be respected, nor on account of court's power to legalize injustice on technical grounds, but to remove injustice.

Nadeem Ahmed Mirza, along with Obayd Mirza for Appellants (in Appeal No.H-769 of 2014).

Yawar Abbas, I/O, I&T & I&V (FIU) for Respondent No. 1 (in Appeal No.H-769 of 2014).

Yawar Abbas, I/O, I&T & I&V (FIU) Hyderabad for Appellant (in Appeal No.670 of 2014).

Nadeem Ahmed Mirza, and Obayd Mirza for Respondents (in Appeal No.H-670 of 2014).

Dates of hearing: 15th and 18th September, 2014.

ORDER

MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I).--- These cross appeals impugned the Order-in-Original No. 333 of 2014 dated 24-5-2014 and corrigendum dated 20-6-2014 passed /issued by the learned Collector of Customs (Adjudication) Quetta (here-in after 'respondent No. 3') and these appeals are heard and decided through this instant common order.

2.Brief facts as reported by the Superintendent FIU, Directorate of Intelligence and Investigation-FBR , Hyderabad here-in-after referred as respondent No. 1 are that "An information was received from a credible source that Messrs SRS Impex, Karachi (NTN-3950662), Office No. 30, at Floor, Gul Plaza, M.A.Jinnah Road, Karachi is involved in importing and clearing the consignment of miscellaneous item in excess quantity through mis-declaration of description, quantity, weight and value in connivance with other associates-in-crime evading thereby huge amount of government legitimate duty and taxes. It was also disclosed by the source that such consignment would be cleared through Customs Computerized system from MCC, Dry Port, Hyderabad". Resultant an vigilance was mounted and upon clearance of the goods from the Port vide good declaration No. HC-SI-HC-258 dated 7-11-2013, the vehicle carrying the container was intercepted at Zaib Hotel, near Toll Plaza Jamshoroo and detained for examination, which transpired that as against declared 80 items are in excess detail of which is given below the para 13 of the order-in-original. That upon detention the vehicle driver was asked to produce the corresponding documents within 03 days. On 12-11-2013 Syed Muhammad Naqi produced office copy of the good declaration along with relevant invoice, packing list and other documents in the presence of Yawar Abbass from the scrutiny of the goods declaration it is revealed that the consignment declared to contain Misc. items like EAUD Toilet air freshener, Shaving Gel, Shampoos, conditioners, mini printer, shaving razor, bath soaps, body spray, refrigerator, hair brushes etc. weighing 22.25000MT was cleared on payment of total duty and taxes amounting to Rs.744,807 online scrutiny of GD further reveals that the consignment was examined 100% by the concerned examination staff as per examination report, the declared description and quantity of the goods was confirmed on the basis of declaration, on the basis of which GD was completed by assessing staff of MCC, Dry Port , Hyderabad, where after goods were cleared. The Superintendent has further reported that "the consignment was thereafter examined by the Directorate General of Investigation and Intelligence-FBR, Regional Officer, Karachi and Field Intelligence Unit, Hyderabad on 12/13/11-2013 in the presence of Syed Muhammad Naqi, Yawar Abbasss and two Mushirs. The physical re-examination of 1x40" Container No. SUDU-8907110 resulted into recovery of excess quantity along with other foreign origin mis-declared and under assessed miscellaneous goods. It has been further reported that "during the course of preliminary investigation it came on service that Syed Muhammad Naqi is the front man and representative of the owner of the seized goods. He remained present through out entire process of examination with the staff of Directorate General. It is also not worthy that in the subject consignment no clearing agency was utilized and it was a consignment cleared on self basis and preliminary investigation as revealed that even at the Hyderabad, Dry Port the consignment was facilitated to be cleared by Syed Muhammad Naqi." From the facts narrated above, it is evident that Sadat Ali, Proprietor of Messrs SRS Impex, Karachi Syed Muhammad Naqi and Mr. Yawar Abbass inclusion and connivance with the customs officials and their other associates---in crime by clearing import consignment of miscellaneous item through mis-declaration of description, quantity weight and value evading thereby government's legitimate value to the tune of Rupees (0.878 millions) has committed offence of mis-declaration under sections 16, 32(1) & (2), 32A read with sections 79 and 80 of the Customs Act, 1969 section 2 of Import and Export Control Act, 1950 read with IPO, 2013 and sections 3, 6 and 7A of the Sales Tax Act, 1990 and section 148(1) of the Income Tax Ordinance, 2001. Since, the consignment in question was liable for confiscation hence seized hence container No. SUDU-8907110 was seized under section 168 of the Customs Act, 1969, against proper inventory and mushirnama duly signed by the witnesses and other participant. Notice under section 177 of the Customs Act, 1969, has been sent to the importer Sadaat Khan Meerani Messrs SRS Impex, Karachi through post and a copy of notice 171 also pasted on the notice Board of the Int. and Inv-FBR, FIU at MCC, Custom House, Karachi.

3.On the strength of the above allegation, the Collector of Customs Adjudication, Quetta here-in-after referred as respondent No. 3 issued show-cause notice dated 19-12-2013, the Advocate of the appellant in Appeal No. H-769/2014 and respondent in Appeal No. 670/14 replied to the allegations. After providing proper opportunity of hearing the respondent No. 3 passed Order-in-Original dated 24-5-2014 paras. 25 to 27 are relevant , which are reproduced herein-below:--

"25. The respondents have raised question of jurisdiction of seizing agency. Section 168 deals with the seizure of things liable to confiscation. The directorate has been empowered to exercise powers under this section. The seizing agency has invoked sections 32(1) and (2) and 32A of the Customs Act, 1969 and the related penal clauses viz section 156(1), (14) (14A) prescribed confiscation of the goods besides other punative measures. So Directorate has acted well within law on the basics of reasoning made above. The Sales Tax Law, 1990 and Federal Excise Act, 2005 prescribed that these tax/duty will be collected in a manner as if these were customs duty and all provision of Customs Act, will apply. Infact at import stage customs authorities realized tax/duties by invoking these provisions of law.

26. The S.R.O. 486(I)/2007 dated 9-6-2007 (beside mention of specific provisions of law) also empowered the Directorate to invoke all relevant provisions of the said Act and Rules made there under if so warranted.

27. The charges of mis-declaration levelled in the show-cause notice stand established. I accordingly order for confiscation of seized goods corresponding to Serial Nos. 3, 6, 11, 19, 20, 21, 27 and 28 of the good Declaration under clauses (14) and (14A) of section 156(1) of the Customs Act, 1969, furthermore excess quantity mentioned against Serial Nos. 12,13, 18 and 32 (para 22) is also confiscated under clause 14 (14A) of section 156(1) of the Customs Act, 1969. However an option to redeem the goods under section 181 of the Customs Act, 1969 is offered against payment of 20% redemption fine in addition to the duty and taxes leviable thereon. A personal penalty of Rs.100,000.00 (Rs. One hundred thousand) is imposed on the importer under the above mentioned provision of law."

4.The respondent No. 3 subsequently on 20-6-2014 issued corrigendum dated 24-5-2014, wherein he substituted the Para 27 of the order dated 24-5-2014 with the Para as enumerated here-in-below:--

"27. The charges of mis-declaration ( i.e. value on account of origin) levelled in the show-cause notice stand established. I accordingly order for confiscation of seized goods mentioned at Serial Nos. 3, 7, 8, 31, 54, 55, 56, 58, 61, 69, and 70 of the show-cause notice [corresponding to Serial Nos. 3, 6, 11, 19, 20, 21, 27 and 28 of the Goods Declaration ] under clauses 14 and (14A) of Section 156 (1) of the Customs Act, 1969. Furthermore, excess quantity communicated vide Directorate of Intelligence and Investigation-FBR, Karachi letter C.No. 114/ DCI/Appg.D.Port/FIU-Hyd./2013/259 dated 14-4-2014 and mentioned at para 22 of this order is also confiscated under clauses 14 and (14A) of Section 156(1) of the Customs Act, 1969. However, an option to redeem the confiscated goods under section 181 of the Customs Act, 1969 is offered against payment of 20% redemption fine in addition to duty and taxes leviable thereon a personal penalty of Rs. 100,000.00 (Rs. One hundred thousand) is imposed on the importer under the above mentioned provisions of law regarding remaining item the respondents have successfully demonstrated that the duty and taxes have been paid vide GD mentioned earlier. I, therefore, order unconditional release of these goods to its lawful owners."

"2. Other contents of the order shall remain unchanged".

5.The appellant in Appeal No. H-769/2014 and respondent No. 1 in Appeal No. 670/2014 filed appeal for decision on the strength of the grounds taken in the Memo of Appeal and argued during the course of hearing on 18-9-2014 and which read as follows:

(i)That prior to commenting upon the legal aspects of the case it is advantageous to state that indeed the respondent No. 1 is appointed and designated as "Officer of Customs" under section 3A of the Customs Act, 1969 and they derived power for functioning from Notification No. S.R.O 486(I)/2007 dated 9-6-2007 said to be within the territory of Pakistan for thwarting the act of smuggling but this doesn't means that they can intercept and detain the goods transported within city or territory of Pakistan and their jurisdiction in principal is restricted to the territory not falling within the ambit of sections 9 and 10 of the Customs Act, 1969 and beyond 5 kilometer of the border of India and Iran in terms of section 177 of the Customs Act, 1969 to be read with Notification S.R.O. No.188(I)/83 dated 12-12-1983 . The goods in question does not at all falls with in the ambit of Section 2(s) and section 177 of the Customs Act, 1969, instead are lawfully imported and cleared after completion of all the codal formalities.

(ii)The official of respondent No. 1 are even not empowered to ask from the person, who is transporting the goods or the driver copy of Good Declaration or purchase receipt of the transported goods within the city or within territory of Pakistan, unless there exist any provision in the Act or notified through an SRO that the person who intent or transporting the goods or the carrier within the territory of Pakistan has to keep with him Good Declaration or purchase receipt of the goods. In the absence of availability of any section in the Act and the notification, demanding Good Declaration/receipt is nullity to law and hold no ground and the stance of the appellant stood validated form the reported/un-reported judgments K-719/02, H-720/02, H-686/03, Q-776/04, 2005 PTD (Trib.) 135 and PLD 1991 Supreme Court 630.

(iii)The respondent No. 1 has no powers under Sections 16, 32, 79, 80, 83 and 195 of the Customs Act, 1969 through Notification No. 486(I)/2007 dated 9-6-2007 issued by the Board delegating the powers to the officers of DGI&I-FBR. Intercepting consignment after clearance on the pretext of importability by the officials of DGI&I suffer from lack of jurisdiction and power, rendering their act as transgression to the vested powers. In these circumstances the impugned contravention report and show-cause notice and all the subsequent proceeding there on deems to be illegal and void. No body is allowed to act beyond his jurisdiction and all the acts or deeds beyond the scope of jurisdiction are null and void in the eyes of law. Reliance is placed on the reported judgments 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505, In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.

(iv)That the respondent No.1 are indeed empowered to conduct examination under section 198 of the Customs Act, 1969 under Notification No. 486(I)/2007 dated 9-6-2007 but within the premises of the port /terminal and that also after having approval of the Chief Collector (South) as clarified by the Board vide letter C.No. 2(2) L&P/2014 dated 29-12-2009. Which they failed to obtain in the instant case, resultant, the carried out examination is nullity to law and direction of the Board to be adhered by the field formation in terms of the expression of Section 223 ibid. it is imperative to state that outside the premises of the port/terminal the power vested under section 198 of the Customs Act, 1969 are not operative unless charge of smuggling is levelled against the person (appellant), which is non-existent in the case of appellant as no such charges has been leveled in the show-cause notice. In other cases the provision of the Customs Act, 1969 became un-operative and the case has to be dealt under the respective provision of C.P.C. or Cr.P.C., rendering the examination of the goods after post clearance outside the premises of the port/terminal being in derogation of Section 198 of the Customs Act, 1969 and as such void and ab initio. Any case made on the strength of such examination report nullity to law and not to be relied upon.

(v)The respondent No. 1 is not appointed/designated an "Officer of Inland Revenue" under Section 30A of the Sales Tax Act, 1990 and Section 230 of the Income Tax Ordinance 2001 under which Directorate General Investigation Inland Revenue has been designated as officer of Inland Revenue and they had been delegated powers under different section of the Sales Tax Act, 1990 through Notification No.S.R.O.776(I)/2011 dated 19-8-2011 and Section 207 of the Income Tax Ordinance, 2001. Resultant, respondent No. 1 acted without powers/jurisdiction, rendering their act of detention, seizure and subsequently preparation of contravention report , null, void and ab-initio, hence "coram non-judice".

(vi)That similarly respondent No. 3 is also not designated an "Officer of Inland Revenue" under the provision of Section 30 of the Sales Tax Act, 1990 and Sections 207 and 230 of the Income Tax Ordinance, 2001 and as such is not empowered to issue show-cause notice under Section 36, which stood omitted from the Act through Finance Act, 2012 and the appropriate Section is Section 11 and respective Section 162(1) not 148 ibid. The respondent No. 3 usurped the power not vested with him, rendering the show-cause notice and order-in-original without power/jurisdiction, hence void and ab-initio and coram non judice as held in reported judgment Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd v. Collector of 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 2001 Supreme Court 514, Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others, 2006 PTD 2237, Pak Suzuki Motors Company Ltd, Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib) 832.

(vii)That on conclusion of transaction, under the provision of sections 80 and 83 of the Customs Act, 1969 and 438 and 442 of Customs Rules, 2001, the order so passed under the said provision of the Act become appealable order before Collector of Customs (Appeals) under Section 193 of the Customs Act, 1969 and the respondent No.1 are empowered under the said Section through Notification No. 486(I)/2007 dated 9-6-2007. If they had any reservation against the passed assessment order, the appropriate course of action was to assail the said order before the Collector of Customs Appeals. Which had not been done within the stipulated period and order so passed by the competent authority defined in Section 2(a) under Section 80 of the Customs Act, 1969 final and that cannot be disturbed by any authority. To the contrary, the respondent No. 1 detained, seized the goods, which is not permitted under law.

(viii) That upon filing of the appeal by the respondent No. 1 before the Collector of Customs Appeals under Section 193 of the Customs Act, 1969 emanating the facts of the case and the relevant provision of law. That upon taking up the appeal it is mandated on him to go through the fact and ground of the appeal and thereafter if he think fit that in the case under adjudication correct duty and taxes has not been either not levied or short paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Customs Act, 1969 to the respondent (appellant) and after receipt of reply to the said notice the Collector of Customs will decide the appeal in the light of the issued show-cause notice and reply. In the instant case no appeal was filed by the respondent No. 1 despite mandated under law, instead assumed the powers under section 195 of the Customs Act, 1969 and reopened a valid passed order under section 80 ibid. Neither respondent No. 1 nor 3 are empowered to reopen an order, hence both acted without power/jurisdiction, hence their action is without any lawful authority and as such ab initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and others.

(ix)The expression of Section 179 of the Customs Act, 1969 is very clear in regards to determination of Adjudicating Authority on the basis of "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes". In the instant case of appellant the involved amounts of duty and taxes are Rs.1,615,066.00. Meaning thereby the competent authority to adjudicate the said case under clause (ii) of Section 179(1) is Additional Collector, even otherwise the inapt interpretation adopted by the Customs officials is taken for arguments even then the evaded amount in the instant case is 870799, which falls within the power and jurisdiction of Deputy Collector. To the contrary, respondent No.3 issued the show-cause notices and passed order-in-original while usurping the powers of his subordinates, which is not permitted under law. Rendering both suffers from lack of powers jurisdiction, hence, ab-inito null and void and coram non-judice as held in Order in Sales Tax Appeal No. 444/03, STA 465/07 and judgments reported at Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): PLD 1976 Supreme Court 514, Ali Muhammad v. Hussain Buksh and others (1992 ALD 449 (1), Karachi AAA Steel Mills Ltd v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax, PLD 2001 Supreme Court 514, Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2004 PTD 624), PLD 2004 Supreme Court 600, All Pakistan News Paper Society and others v. FOP, PLD 2005 Supreme Court 842, Khyber Tractors (Pvt.) Ltd., v. FOP., 2006 PTD 2237, Pak Suzuki Motors Company Ltd, Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636

(x)It is settled principal of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute, rendering the show-cause notice and Order-in-Original as ab-initio and void. The opinion oftenly adopted by the respondents that the Superior Authority can exercise the power of their sub ordinates in terms of Section 4 of the Customs Act, 1969 is considered valid for a while then the hierarchy of distribution of jurisdiction explicitly provided by section 179 of the Act shall be rendered redundant. Also the consequent result would be a total anarchy where the superior officers would be making all efforts to exercise the adjudication powers clearly conferred by law upon their subordinates. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law, the special provision shall prevails (reference is invited to the case of Lt. General (Retd.) Shah Rafi Alam v. Lahore Race Club, 2004 CLD 373. The power of adjudication, as already observed is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i.e. that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL 2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case-law on the point that where there is a conflict between two provision of the statutes, the later provision prevails and has to be given precedents (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587.

(xi)That the consignment in question had undergone the procedure of clearance as evident from the fact that the appropriate officer in the capacity of adjudicating authority defined in Section 2(a) of the Customs Act, 1969 in exercise of the powers vested upon him under Section 80 and Rule 438 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 and Notification No. 371(I)/2002 dated 15-6-2002 passed that for levy of duty and taxes, which were paid by the appellant, consequent to which the authority defined in Section 83 of the Customs Act,1969 passed Clearance Order. The respondent No. 1 detained the goods and later on seized and framed a contravention report for adjudication under section 179 of the Customs Act, 1969 by the respondent No. 3 by issuing show-cause notice and subsequently passed order-in-original i.e. piling of fresh order on the existing order, while reopening of the order of assessment in exercise of the power under the provision of Section 195, specifically vested with the Board or Collector. Neither the respondent No. 1 nor respondent No. 3 is empowered to reopen an order under Section 195 of the Customs Act, 1969 by the official of Executive Collectorate both usurped the powers not vested with them rendering the preparation of contravention report, show-cause notice and the impugned order in original without power/jurisdiction, hence void and ab-initio and as such coram non-judice and this stood validated from the reported judgment Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 and 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., v. FOP and another.

(xii)That in terms of proviso of subsection (3) of section 179 of the Customs Act, 1969 the adjudication proceeding has to be completed within 120 days of the issuance of show-cause notice or within such period extended by the Collector for which reason shall be recorded in writing but such extended period shall in no case exceed 60 days provided that any period during which the proceeding are adjourned on the account of stay or alternative dispute resolution proceeding or the time taken through adjournment by the petitioner not exceeding 30 days shall be excluded for the computation of the aforesaid period meaning thereby, the total period can be extended from 120 days to 180 days or 210 days.

(xiii) In the instant case the show-cause notice was issued on 19-12-2013 and the order should had been passed by the respondent within 120 days i.e. by 18-4-2014, whereas order has been passed on 24-5-2014 to be read with corrigendum dated 20-6-2014 without any extension and the said fact stood validated from the operative part of the order, rendering it barred by time by 61 days. Rendering it without power/ jurisdiction, hence ab-inito void as held in reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and others 2008 PTD 578, Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762, Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others 2009 PTD 1978, Leo Enterprises v. President of Pakistan and others, 2010 PTD (Trib.) 1010, Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib) 79, Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib) 987, Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1146, Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650, Pak Electron Ltd. v. Collector of Customs, Lahore and others.

6.The respondent No.1 on the other hand has adopted the following grounds of appeal in the appeal Memo No. 670/2014, while aggrieved by the order-in-original to the extent the relief was allowed to the appellant (Messrs SRS Impex, Karachi) in the impugned order dated 24-5-2014 and corrigendum dated 20-6-2014:--

(i)That the impugned Order-in-Original No. 333 of 2014 dated 24-5-2014 passed by the learned Collector of Customs, (Adjudication), Quetta at Hyderabad is not sustainable in law, the same has been passed without appreciating the facts on record and law applicable thereto.

(ii)The Learned Collector of Customs (Adjudication), while concluding the impugned order dated 24-5-2014 has failed to appreciate that the Directorate General have seized 80 items as per detail reflected under para 2 of the Show-Cause Notice and Adjudication order was passed in respect of 12 items only and no finding regarding 68 items were given. However, on pointation of the appellant the corrigendum dated 20-6-2014 was issued concluding therein that the respondents have successfully demonstrated the duty and taxes have been paid vide good declaration mentioned earlier, whereas on contrary perusal of Goods Declarations and its comparison with the inventory of the recovered goods showed that although unconditionally released 68 items co-relate with the goods declaration but the quantity of the items were in excess against which no duty and taxes were paid.

(iii)That the learned Collector of Customs (Adjudication) while concluding the impugned order dated 24-5-2014 has completely mis-understood the case and failed to appreciate that the department furnished a detailed assessment/comparative chat in respect of each and every item imported and declared in the goods declaration, clearly showing therein that the exact quantity and value of most of the item was neither declared nor the same were assessed to duty and taxes. Therefore, order for un-conditional release of 68 items without charging duty and taxes leviable thereon is unwarranted, without jurisdiction and of no legal effect.

(iv)That the learned Collector of Customs (Adjudication) while concluding the impugned order dated 24-5-2014, has failed that the concerned Customs Examination Staff abated and connived with the importer and did not report the actual goods imported in the under reference consignment, rather in order to facilitate the clearance of the mis-declared goods and banned items confirms the declared description of the importer which caused huge loss of revenue to the state ex-chequer.

(v)That the appellant carved to urge further grounds at the time of hearing of reference.

7.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 respondent No. 1 has the powers to intercept and detain the goods transported within the city or territory of Pakistan on suspicion of smuggled goods or to be cleared without paying the leviable duty and taxes or short to the leviable as defined in Section 2(b) under Section 164 of the Customs Act, 1969 in exercise of the powers vested under Notification No. 486(I)/2007 dated 9-6-2007 and Section 177 of the Customs Act, 1969 and Notification No. 188(I)/83 dated 12-12-1983?

(ii)Whether officials of respondent No. 1 are empowered to take cognizance in the matter relating to sections 16, 32, 32A, 79, 80, 83 and 195 of the Customs Act, 1969 and to be read with Notification No. 486(I)/2007 dated 15-6-2007 and to detain/seize the consignment, which has undergone the process of passing of assessment/clearance order under sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 by the authority defined in Section 2(a) ibid outside the Port/Terminal for preparing contravention report and subsequent proceeding connected therewith?

(iii)Whether respondent No.3 was competent to adjudicate the case involving amount of duty and taxes of Rs.16,15,066.00 in derogation of powers defined in Section 179(1) of the Customs Act, 1969?

(iv)Whether Order-in-Original was passed within the period of 120 days given in subsection (3) of section 179 of the Customs Act, 1969 and issuance of corrigendum in Order-in-Original was in accordance with Section 206 of the Customs Act, 1969?

8.That as regards issue No. (i), the respondent No.1 drives powers for functioning within the territory of Pakistan from Notification No. 486(I)/2007 dated 9-6-2007, for thwarting the act of smuggling but this does not means that they can intercept and detain the goods transported within city or territory of Pakistan. Their jurisdiction in fact is only restricted to the areas falling outside the purview of sections 9 and 10 of the Customs Act, 1969 and beyond 5 kilometers from the border of India and Iran as expressed in section 177 of the Customs Act, 1969 and Notification No. 188(I)/83 dated 12-12-1983. By not leveling allegation of smuggling as defined in Section 2(s) of the Customs Act, 1969 in the contravention report and in the show-cause notice, the goods in question could not be detained/seized by the respondent No.1 at Zohaib Hotel, Jamshoroo by pass as the same had been cleared by the customs officials of the Dry Port after completion of all codal formalities. Demand of import documents either from the driver of the carrier or from the owner of the transported goods by the officials of the respondent No.1 is nothing then stretching their powers beyond the provision of the Customs Act, 1969 and Notification No. 486(I)/2007 dated 15-6-2007. This is not permitted in the absence of enabling provisions in the Act and notification. Rendering their act of intercepting the vehicle and detaining the loaded goods and demand of import/ purchased documents of the transported goods either from the driver or the shipper of the goods without any lawful authority, hence suffer from lack of powers/jurisdiction hence coram non judice. My this conclusion, stood validated from the reported judgment PLD 1971 SC 184, PLD 1976 Supreme Court 514, PLD 1991 Supreme Court 630, 1992 ALD 449(1) Karachi , PLD 2001 Supreme Court 514, 2004 PTD 624, 2005 PTD (Trib.) 135, 2008 CL 37(sic), 2010 PTD (Trib.) 1636, 2010 PTD 465, 2010 PTD (Trib.) 2158, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 1680, 2011 PTD (Trib.) 2086, 2014 PTD (Trib.) 1566. The question No. (i) is answered in negative.

9.That as regards issue No. (ii), the Board has not delegated the powers to the respondent No.1 under the provision of Section 16 (Power to prohibit or restrict importation and exportation of goods) Section 32 (false statement, error etc.), 32A (fiscal fraud) Section 79 (Declaration and Assessment for Home Consumption Warehousing), Section 80 (Checking of goods declaration by the Customs), Section 83 (Clearance for home consumption) and Section 195 (Power of Board or Collector to pass certain order) of the Customs Act, 1969. The case in question is not of importability and least fall under the ambit of Section 16 under which the Ministry of Commerce is empowered to restrict the importation or exportation of any goods. Powers invoked under Section 32 also has not been delegated to the respondent No. 1. Section 79 is a machinery Section and define the procedure for filing of Goods Declaration by the importers, Section 80 empowers a Customs Officer to complete Assessment Order for the imported goods, for levy of duty and taxes etc. After payment of those the Principal Appraiser passes Clearance Order under Section 83 of the Act. The Board or Collector is empowered to reopen the assessment order passed under Section 80 of the Customs Act, 1969 in exercise of the powers conferred under Section 195 of the Customs Act, 1969. Irrespective of the fact the officials of respondent No.1 has no power under the said sections laid hand on the consignment which has been lawfully released by the Competent Officer under the provision of Sections 80 and 83 of the Customs Act, 1969 after passing of valid and legal Assessment/Clearance Order. The official of respondent No.1 transgressed the power of the authority defined in Sections 16, 32, 80, 83 and 195 of the Customs Act, 1969 and Notification No.S.R.O.371(I)/2002 dated 15-6-2002, rendering the detention/seizure and subsequently preparation of contravention report without power/jurisdiction being in derogation of Notification No. 486(I)/2007 dated 9-6-2007 and as such null and void, ab-inito and coram non judice, the respondent No. 3 in his order dated 24-5-2014 opined in para 6 that the Notification No. 486(I)/2007 dated 9-6-2007 can exercise powers under all relevant provision of the said Act and Rule made there-under if so warranted. It is mistaken belief of the respondent No. 3 that the board has given unfettered powers to the respondent No. 1, the fact of matter is that the respondent No. 1 can exercise powers of the Act not specified in the notification in case those are in line of the section of the Act under which they had been empowered through the notification. If the intention of the Board would had been as opined by respondent No.3, the notification in column 3 should had only been containing the wording "all the relevant section of the Customs Act and Rules" instead of specifying the section under which the respondent No. 1 have been delegated the power and this stood validated with the last line of preamble reading as "within the area of respective jurisdiction namely designation and Section given in columns 2 and 3 of the notification.

10.Notwithstanding, the respondent No. 1 do have the power to conduct examination under section 198 of the Customs Act, 1969 under the said notification but i.e. restricted to the premises of port and terminal after having approval of the Chief Collector South as instructed/ order by the Board vide letter dated 29-12-2009. The consignment in question was examined outside the premises of the port/terminal does not at all falls within the ambit of section 198. The respondent can examine the goods detained or seized on the presumption of smuggling falling under the ambit of section 2(s) of the Customs Act, 1969 and rendering the examination of the goods outside the premises of the port/terminal by the respondent No. 1 as in derogation of Section 198 of the Customs Act, 1969 and as such void and ab-initio. Any case made on the strength of such examination report is nullity to law and fail the test of judicial scrutiny. For reaching on the conclusion, I have gained strength from the reported judgment, 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505, In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.

11.Upon passing of assessment order under section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 and thereafter passing of clearance order under section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Customs Act, 1969 and Notification No. 371(I)/2001 dated 15-6-2001, it cannot be disturbed by any authority for the purpose of preparing contravention report and adjudication proceeding. The only course left for the respondent No. 1 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Customs Act, 1969 in exercise of the power delegated to them through Notification 486(I)/2007 dated 9-6-2007. In the filed appeal the respondent No. 1 are empowered to incorporate all the apprehension, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, upon receipt of the appeal and going through the facts and grounds if thinks fit that the contention of the respondent No. 1 seems to be correct and the duty and taxes has not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show-cause notice to the respondent (importer) as expressed in 2nd proviso to the subsection (3) of Section 193A of the Customs Act, 1969. Instead of the prescribed method in the Act the respondent No. 1 reopened the assessment/clearance order under section 195 of the Customs Act, 1969 under which no powers are vested with any officer of the respondent No.1 under Notification No. 486(I)/ 2007 dated 9-6-2007. Even otherwise, when the right of appeal has been accorded by the legislature in the provision of Section 193 of the Customs Act, 1969, the provision of Section 195 is un-operational and cannot be exercise even by the authority defined therein and this has been validated by the Hon'ble High Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that" department or an officer of customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal)---1st order-in-original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set-aside and Constitutional Petition was allowed." Therefore, the act and omission of respondent No. 1 is in derogation of sections 193 and 195 of the Customs Act, 1969 and as such of no legal effect, hence coram non judice. Therefore, I answer to issue No. (ii) in negative.

12.That as regard issue No (iii), the section 179 of the Customs Act, 1969 expressed that the power of adjudication has to be determined by the authority on the basis of "amount of duty and taxes involved excluding the conveyance. In the instant case the amount of duty and taxes involved are Rs.1,615,066.00 (Rs. 230712.00 + 513,555.00 + 870799.00) and the case of the said amount falls within the powers of Additional Collector. If the interpretation oftenly adopted by the official of the Customs is taken into consideration that the expression of section 179 speaks about evaded amount of duty and taxes (which is of course not correct), even then the amount as shown in show-cause notice is Rs. 870,799.00, the appropriate authority for the said case is Deputy Collector. To the contrary, the respondent No. 3 issued show-cause notice and passed order-in-original while usurping the powers of his subordinate, which is not permitted under law. Nobody is allowed to usurp the powers of his subordinates as held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others 2009 PTD 1083 that "Superior authority cannot exercise the power of his subordinates for adjudication purpose .powers of sub-ordinate exercised by superior authority is held as without jurisdiction beside usurpation". Rendering the act of issuance of show-cause notice and passing of order-in-original in the instant case without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184 , PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517 , PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, 2004 CLD 373, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court(sic), PLD 2005 Supreme Court 842, 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636, 2011 PTD (Trib) 2114, 2011 PTD (Trib) 2557, PLD 2014 Supreme Court 514. The issue No. (iii) is answered in negative.

13.That as regards to issue No. (iv), The show-cause notice to the appellant was issued on 19-12-2013 and an order under the proviso of subsection (3) of Section 179 of the Customs Act, 1969 should have been passed by the respondent No. 3 within 120 days from the issuance of show-cause notice or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing. In the instant case the order has been passed on 24-5-2014 and corrigendum on 20-6-2014 without any extension and this stood confirmed from the operative part of the order. Therefore, the order so passed is barred by 61 days, hence without powers/jurisdiction and cannot be enforced under law as held in reported judgments 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263, 2009 PTD 1978, 2010 PTD (Trib) 1010, 2011 PTD (Trib) 79, 2011 PTD (Trib) 987, 2011 PTD (Trib.) 1146, 2012 PTD (Trib.) 1650. It is also amazing to note that in the contravention report and show-cause notice reference is made to Syed Muhammad Naqi and Gohar Abbass, but they have not been charged and no show-cause notice have been issued to them, the subject consignment could not be released without the active connivance of the officials of respondent No. 2. None of them have been charged in the show-cause notice for their act and omission. The narrated circumstances smacks of mala fide and support the contention of the appellant. The order dated 24-5-2014 and corrigendum dated 20-6-2014 of the respondent No. 3 also required to be taken into consideration with reference to the observations made in the aforesaid paras and it is beneficial for the understanding to place the content of that Section 206 of the Customs Act, 1960 as under:--

"Correction of clerical errors, etc---Clerical or arithmetical errors in any decision or order passed by the [Federal Government], the Board or any officer of customs under this Act, or errors arising therein from accidental slip or omission may, at any time, be corrected by the [Federal Government], the Board or such officer of customs or his successor-in-office, as the case may be."

14.That two mandatory ingredients are being mentioned in the said Section "clerical" or "arithmetical" errors arising thereon from accidentally sleep or omission. The wisdom behind the mind of legislature is fairly limited within the aforesaid parameters and it will not be given any option to the authority who can invoke the power/ jurisdiction under that Section and review its order. The power of review is extremely not granted by that statute to the corresponding section 155-R of the Customs Act, 1969, also empowers the Collector of Customs. Whereas the customs computerized system is in operation and satisfy with incorrect data has been electronically communicated to customs due to non clerical errors, the Collector may for reasons to be recorded in writing direct the correction of the said error, but on the contrary inspite of doing so and without applying the proper provisions of law, the adjudicating officer without considering the rational of law and criteria determined therein, issued the corrigendum in order to rectify the mistake in the Order-in-Original. Whether the rectification of the Order-in-Original through such corrigendum has to be treated as fresh order and the limitation period? If any, has to be computed with effect from the date of issue of corrigendum and not from the date of first order passed and originally served, nor compliance of the mandatory provisions is derogatory act on part of the department. The department/ respondents having the authority under section 206 of the Customs Act, 1969 for correction or error, that is there, but only for correction of "clerical or arithmetical errors" in any decision or order passed by the Federal Government, Board or any officers of customs or errors arising out of accidental slip or omission. Only mentioning clerical error, arithmetical error accidental slip does not mean that nature or scope of any order can be enlarged, changed or altered by corrigendum or reviewed under provisions of section 206 of the Customs Act, 1969. In this particular case issuance of corrigendum is in fact created a new order and passed without reopening or earlier order or annulling the same. This is illegal, ultra viral and without lawful authority, one case can not be decided twice, involving two orders, without taking any records under the prescribed law. It is evident that the earlier order was neither annulled nor reopened under section 195 of the Customs Act, 1969, passing of a second order was without any authority, with these observations the issue No.(iv) is answered in negative.

15.In view of the above narration, the whole proceeding are infested with inherent legal infirmities and substantive illegalities tantamount to patent violation of mandatory, statutory provisions and in utter disregard of the provision of the Acts/Ordinance and Principle of law settled by the Superior Judicial Fora. "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 objective of performing or doing of a thing in a manner other than provided by law would not be permitted".

16.It is flabbergasted to note from the record of the case that the respondents also ignored the vital fact that assuming of jurisdiction is of great importance and power has to be exercised within the allotted sphere, acting contrary to that is incurable rather fatal for the health of the case and this has been countless time held by the Hon'ble Supreme Court of Pakistan that in case of assuming wrong jurisdiction, that the super structure built thereon ought to crumble down as held in reported judgments PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. Beside it is advantageous to us to refer to 2001 SCMR 1822 Ali Muhammad v. Chief Settlement Commissioner, wherein the Hon'ble Chief Justice of Pakistan Mr. Iftikhar Muhammad Choudhry presiding a bench in the capacity of Judge of Supreme Court held that:--

"whenever order are passed by an officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercise in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice."

17.Their lordships also held in reported judgment PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP and others that "determination of jurisdiction by Court seized with the matters is one of the important element in administration of justice as if justice has been provided basing upon corum non judice order then same would have no legal sanction behind." And in PLD 2005 Supreme Court 842 Khyber Tractor (Pvt.) Ltd., v. Pakistan Through Ministry of Finance, Revenue and Economic Affairs that "question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum having no jurisdiction, even if it is found to be correct on merit is not sustainable. Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi judicial functionary to exercise its power/authority and no sooner the question of jurisdiction is determined in negative the whole edifice built on such defective proceeding, is bound to crumble down."

18.Being custodian of law, the courts are required to maintain the norms of justice and equity, litigants are to be respected not on account of court's power to legalize injustice on technical grounds but to remove injustice. By doing so, and in respectful agreement with above findings and ratio decidendi, observed by the Apex Courts and my own additions including the reasons quoted above, the order-in-original is based upon proceedings which are infested with patent illegalities, held to be null and void and accordingly set aside, the Appeal No. H-769/2014 of the appellant is allowed as prayed and Appeal No. 670/2014 of the respondent (Directorate of Intelligence and Investigation) is rejected with no order as to cost.

19.Order passed and announced accordingly.

HBT/159/Tax(Trib.)Order accordingly.