COLLECTOR OF CUSTOMS VS COLLECTOR, COLLECTORATE OF CUSTOMS, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1869 (2015)

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

----Ss. 19, 25, 32, 80, 83, 156, 168, 179, 181, 194-A & 195---Customs Rules, 2001, Rr.438 & 442---SRO 1125(I)/2011, dated 31-12-2011---S.R.O. 499(I)/2009, dated 13-6-2009---S.R.O. 1155(I)/2011---S.R.O. 371(I)/2002, dated 15-6-2002---Import of goods---Mis-declaration---Filing false and forged information/particulars---Confiscation of goods---Importer, imported a consignment of 704 meter fabric, filed goods declaration for clearance of imported goods, claiming benefit of SRO 1125(I)/2011, dated 31-12-2011 and paid an amount of Rs.30,831 towards duty and taxes---Physical examination of the consignment, indicated actual value of goods Rs.2941631---Difference in declared and the given invoice, in terms of percentage came 1275% lower---Importer allegedly committed an offence by filing false and forged information/particulars of the case; besides making an attempt to clear imported goods at highly under-invoiced value, wilfully and with mala fide intention---Importer, allegedly had attempted to defraud the Government from its legitimate revenue amounting to Rs.6,01,666---Adjudicating Authority holding that charges against importer having been established ordered confiscation of imported goods, with right of importer to get the goods released on payment of 35% redemption fine---Fine imposed on the importer was remitted and penalty was reduced by appellate authority and case was referred to concerned adjudicating officer, for doing the needful---Validity---Judgment, passed by both the authorities below, were not only arbitrary, illegal, but, were mala fide and without any lawful authority, hence void and ab initio by virtue of being in derogation of settled law---Collector, in the present case, had authorized Deputy Collector to file appeal against impugned order of the authorities below, but affidavit in support of filing appeal was submitted and executed by Assistant Collector, who otherwise had no power as per prescribed law---Assessment of imported consignment was finalized under S.80 of the Customs Act, 1969, but neither appeal was filed against said assessment, nor same was challenged before the competent Authority; nor Collector concerned had intended the process to invoke the power under S.195 of the Customs Act, 1969 to re-open case for examination and re-assessment---Consignment, in question had undergone the procedure as assessment/demand order under the provisions of Ss.80 & 83 of the Customs Act, 1969, and Rr.438 & 442 of the Customs Rules, 2001, by competent Authority in exercise of the powers conferred upon by the Board through notification---Such order was appealable, which could be assailed either by the importer or the officer of the Customs under the provisions of Customs Act, 1969, within 30 days of the order, but same was not filed within that period, with the result that original assessment order attained finality, which could not be disturbed by any authority---Show-cause notice and the impugned order passed during the hierarchy of Customs, which infested with patent illegalities, were declared to be null and void, and were set aside and appeal filed by Collector of Customs, was rejected, in circumstances.

Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division 2014 PTD 1256; Messrs World Trade Corporation v. Central Board of Revenue 1989 MLD 4310; Messrs Smith Kline French v. Pakistan 2004 PTD 3020; 2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505 and Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129 ref.

(b) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt with in accordance with law---Every citizen enjoyed the protection of law to be treated in accordance with law---Such was an inalienable right of every citizen, wherever he could be---No action detrimental to the life, liberty, body, reputation or property of any person, would be taken, except in accordance with law.

Abdul Rashid, A.O. for Appellant.

M.H. Awan for Respondents.

Date of hearing: 12 November, 2014.

ORDER

MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I).--By this order, I intend to dispose off Customs Appeal No.K-473 of 2013 filed by the appellant against Order-in-Appeal No.7573 of 2013 dated 11-7-2013 passed by Collector of Customs (Appeals), Karachi.

2.Brief facts of the case are that the appellant imported a consignment of 704 Meter fabric from UK against IGM No.122/2012 dated 1-3-2013 and Index No.440 by declaring description of the imported goods as "Fabric" and filed a WeBOC Goods Declaration Machine No.KAP-HC-1190 dated 25-3-2013 with an invoice No.070413 dated 29-1-2013, bill of lading No.DARSXJ083810 dated 6-2-2013 amounting to STG 1,408 for clearance thereof, claiming thereby benefit of S.R.O.1125(I)/2011 and paid an amount of Rs.30,831 towards duty and taxes under section 79(1)(b) of the Customs Act, 1969. During the course of physical examination of the consignment, the examination staff has found an original invoice indicating the actual value of the goods as STG 19360 (Rs.2941631) whereas the invoice filed indicates the total declared value as STG 1,408 i.e. the difference in declared and found invoice is in term of percentage comes 1275% lower. The appellant had therefore committed an offence by filing fake and forged information/particulars of the case besides making an attempt to clear imported goods at highly under invoiced value besides filing forged information to the electronic system, willfully and with mala fide intention and have attempted to defraud the Government from its legitimate revenue amounting to Rs.6,01,666.

3.The Adjudicating office held that the charges against the appellant had been established. The operative part of the order is reproduced as under:--

"I have gone through the case and have read the facts and statements made by the importer and perused the contravention report as welt. Scrutiny of the Goods Declaration in the tight of contravention report reveals that the importer has under invoiced the value of imported goods by 1275% as evident from the invoice found amounting to Rs.2941631 at the time of examination. Since the charges levelled against the importer stands established. I thereby order that contravened items are confiscated under sections 181 and 156 of the Customs Act, 1969 read with S.R.O.499(I)/2009. However, the importer has the right to get his goods released / redeemed on payment of 35% redemption fine of the value of offending goods amounting to Rs.1029570 (mis-declaration of value). A penalty of Rs.25000 is also imposed with a warning to importer to be careful in future, if there is any recurrence in future the importer and his associates would be dealt with stern action and further order that the assessment be finalized on recovery of leviable duty and taxes after application of valuation ruling / criteria, data whichever is applicable".

4.The appellant being aggrieved and dissatisfied with Order-in-Appeal No.7573/2013 dated 11-7-2013 and filed an appeal before the Collector of Customs (Appeals), Karachi. The Collector of Customs (Appeals), Karachi passed the order as under:--

"I have scrutinized the whole case and also heard the arguments of both the sides. It is evident from the respondent's statement that there was some sought of mix up regarding the invoice issue and the respondents blame the change of software for his error. However; the respondents were not clear in explaining as to why the declared value of STG 2/meter was not accepted and the goods i.e." Snooker Fabric (Genuine Strachan 6811 Tournament Poll)" width 1.96 meters, were assessed initially at STG 3.24/meter and subsequently at STG 27.5/meter, without informing the appellant nor showing them the invoice. When confronted with the question as to why the invoice was not shown to the appellants, they were unable to come up with a sound reason. Moreover, the respondents were also unable to satisfy this forum as to why an invoice found in the (container for 257 meters was applicable to the whole consignment of 704 meters and if so under which Customs law/rules. Furthermore, in such cases, a decision based on insubstantial reasoning cannot be accepted in its crude form. It is imperative that before deciding such cases, laws and facts need to be woven together to come up with a fair judgment. In this, case where the moot point involved is the invoice found in the container, some basic issues need to be identified such as:-

(1)Whether the invoice found inside the container, showing a higher value, could be termed as a valid "Document" for custom assessment purposes? If yes then can all the other import documents provided by the appellants be considered to be devoid of any legal force?

(2)Once the invoice showing a higher value has been retrieved from the container and taken as gospel true for assessment purposes, then, is there any need left of applying the relevant provisions of section 25 of the Customs Act, 1969, by the Customs authorities?

(3)Whether it is viable and practical to assume that all import documents in cases where no invoice is found inside the container, are true and correct for customs assessment purposes?

(4)Whether the paltry amount of Rs.5000, imposed on goods where no invoice is found inside the container a sufficient safeguard of the exchequer revenue?

Thus it is obligatory to keep the aforesaid points in view when such a case comes up. Consequently, from a perusal of the record in the instant case it is apparent that this is not an evident case of mis-declaration or suppression of value. The assessment of the fabric at STG 3.24/meter and subsequently at STG 27.5/meter (on the basis of invoice' found in the container) by the respondents shows that even the respondents were not sure of the correct value of the goods. It transpires that they merely applied value shown in the invoice found in the container (for 257 meters) mechanically after the goods i.e." Snooker Fabric (genuine Strachan 6811 Tournament Poll)" width 1.96 meters, were assessed at STG 3.24/meter which was duly accepted by the appellants.

From the foregoing discussion, it is clear that the respondents are not on firm grounds as far as the assessment of goods is concerned. However, the legitimate revenue of the exchequer has to be protected at all costs and I am of the view that the larger interest of justice and fair play demands that the bone of contention in the case, which is the correct assessment value of the goods, should be decided by a professional body, which has been setup by the exchequer for this specific purpose, i.e. the Directorate General of Valuation, Karachi. Accordingly, I hold that the case be referred to the Valuation Department for the correct assessment of customs value of "Snooker Fabric (genuine Strachan 6811 Tournament Poll)" width 1.96 meters, and the said determined should be acceptable to both the sides. Under the circumstances, the fine imposed on the appellants is remitted and the penalty is reduced to Rs.10,000. Moreover, the appellants deserve for delay and detention certificate from customs. The case is referred back to the concerned adjudicating officer having jurisdiction for doing the needful. The appeal is disposed of accordingly".

5.Being aggrieved and dissatisfied with the Order-in-Appeal, the appellant filed the 2nd appeal before this Tribunal on the grounds as under:--

(i)That gross mis-declaration by submitting fake Invoice is established on the part of respondent No.2;

(ii)That the respondent No.2 on the basis of self-assessment made payment of duty and taxes which cannot be construed as assessment carried out by the customs authorities;

(iii)That subsequent to the self-assessment, the concerned customs staff carried out assessment of declared goods on the basis of declaration made by the respondent No. 2, however on retrieval of actual invoice assessment staff consulted available import data and the goods were re-assessed accordingly, for the determination of chargeable duty/taxes, thereafter, additional duty/taxes were demanded through electronic message;

(vi)That after the actual Invoice was retrieved from the container/ consignment in presence of two witnesses, which was done under the proper legal procedure, therefore, cannot be denied and could not be deviated from this very fact;

(v)That for the safeguard the interest of national exchequer higher value of imported goods is taken into consideration for the assessment of duty and taxes;

(vi)That re-assessment in this case was done on the basis of above hypothesizes after recovery of actual Invoice from the containers/ consignment, which speak about the value of found goods irrespective of its quantity being similar as mentioned in the found Invoice;

(vii)That retrieved/actual Invoice reflected the actual value of found goods other than the declaration, as such, taking into consideration the higher value of found goods, same were re-assed on higher value and this value has become integral part of the import data being maintained on the basis of import values declared by the importers or already available data or on the basis of found invoices as happened in this case;

(viii) That import documents e.g. Invoice, Packing List and Bill of Lading are deemed to be the valid document for the purpose of determination of value and assessment of chargeable duty and taxes. Since the Invoice submitted contained the vague description 'Fabric' while the found goods were entirely contrary to declared description;

(ix)That the respondent No.1 grossly erred in construing the true facts of the case i.e. deliberate mis-declaration and presenting fake documents by the respondent No.2, which require no expertise to understand it from the available record. Since the found goods imported by the respondent No. 2 under the guise of vague description of 'Fabric' was entirely different from the declared description as such found goods was given due applicable treatment for the assessment of customs duty/taxes;

(x)That the respondent No.2 knowingly and willfully made untrue and incorrect declaration with regard to imported goods with a view to take refuge of automated clearance under the We-BOC System but this attempt was foiled, due to the automatic selection of the consignment for examination, otherwise, respondent No.2 might have succeeded in his deliberate attempt of defrauding the public exchequer;

(xi)That in absence of Invoice in the imported containers or consignments, the value of imported goods is determined on the basis of available import data or on the basis of Valuation Rulings being applied for such purposes. Such measures are sufficient enough to safeguard the revenue of national exchequer. However, if Invoice is not found in the container / consignment, the importer is liable to make payment of fine of Rs.5000 which amounts to additional recovery of the revenue to the national exchequer. In the circumstances as detailed herein above the observations of learned respondent No.1 seems to be illogical and unfounded;

(xii)That redemption fine was imposed by the learned Adjudicating authority in the strict compliance of applicable S.R.O.499(I)/2009 dated 13-6-2009 which set out the pitch of fine that could only be reduced through the Statute but the learned respondent No.1 has done it on his own accord, therefore, he has committed serious error of law in remitting the imposed fine. Likewise, the learned respondent has also erred in reducing the amount of penalty imposed upon the respondent No.2. Under such circumstances, the action taken by the learned respondent No.2 is deemed to be bad in the eye of law and as such not tenable;

(xiii) That the orders of learned Collector (Appeals) for remand of the case and remittance of fine in said situation when criminal act regarding gross under invoicing is established against the respondent is against the spirit of law, therefore this appeal is being filed before this Hon'ble Appellate Tribunal under section 194 of the Customs Act, 1969.

(xiv)That the learned respondent No.1 has totally ignored that the respondent No.2 with ulterior motives had claimed the benefit of S.R.O. 1155(I)/2011 which was otherwise not admissible in this case but it could have been granted, if the consignment might have been cleared under automated system of customs clearance; and

(xv)That impugned Order-in-Appeal passed by the learned respondent No.1, would cause encouragement to the tax evader and respective traders who cause such lapse of criminal Act.

6.The respondent has submitted Para-wise comments, which is reproduced as under:--

(a)That redemption fine was imposed by the learned Adjudicating authority in the strict compliance of applicable S.R.O. 499(I)/2009 dated 13-6-2009, which set out the pitch of fine that could only be reduced through the Statute but the learned respondent No.1 has done it on his own accord, therefore, he has committed serious error of law in remitting the imposed fine. Likewise, the learned respondent has also erred in reducing the amount of penalty imposed upon the respondent No.2. Under such circumstances, the action taken by the learned respondent No.2 are deemed to be bad in the eye of law and as such not tenable;

(b)That the contents of this Para are maintainable and same are applicable in the cases, where no invoice is found but the assessment is challenged by the importer based on concrete evidences and that Collector of Customs, on application by the aggrieved party can re-open the case. In the instant case evidence of higher value in shape of found invoice came before the Customs authorities, therefore, it had rightly been made basis for re- assessment of the goods so found during the course of physical examination;

(c)That for assessing the value of imported goods the aspect of being it petty or in bulk is immaterial. Whereas, assessment of imported goods is done on the basis of original invoice found during examination of the goods. In this case, Invoice was found pertaining to the description of actually; imported goods, therefore, it was made basis for re-assessment. In the circumstances, this issue require no further corroboration or consideration thereto;

(d)That it is incorrect to state that no invoice was found during examination, whereas the factual position is that actual Invoice No.1050836 dated 20-1-2013 was found in the container and the appellant was confronted with it but he failed to give any plausible reason to justify the declaration made on the face of Goods Declaration and also to clarify his position vis-a-vis Invoice presented by him before the customs authorities. In the circumstances, the contentions of the appellant are not tenable;

(e)That the contents of this Para-5 are misleading and based on twisted facts with a view to take refuge from this Honourable Tribunal. The factual position is that found Invoice was seized under Section "168" of the Customs Act, 1969 under the cover of proper Musheernama and all legal formalities were duly fulfilled with regard to the seizure of found Invoice, therefore, same is admissible as evidential material, which served the purpose for re-assessment of actually imported goods by the appellant under the guise of 'Fabric';

(f)That initially duty and taxes were assessed by the appellant on the basis of self-assessment under computerized system and it was believed that the appellant must have been honest in doing so and has paid the self-assessed of duty/taxes. However, the impugned consignment was selected by the system for physical examination, which resulted in retrieving the actual invoice from the container. Hence, it is incorrect to say that the consignment was released for delivery of the consignment to the appellant;

(g)That as per the procedure, the shipper which exporting their consignment for Pakistan, they are required to place the actual Invoice of the goods so that the chances of any evasion of duty be eliminated. As regard, the available computerized data is concerned the same is being maintained by the customs authorities and is based on previous imports. However, in this case, the actual invoice is found the same would lead to amend the available data, therefore, difference between the available data and value shown in found Invoice cannot be deemed to be as abnormal and is acceptable as authentic documents being supplied by the exporter;

(h)That the consignment upon examination was found to contain the goods contrary to the declaration made by the appellant but found description of goods was in accordance with the description detailed in the found Invoice. As far as the contention of the appellant with regard to metrage of found goods is concerned, same is misleading for the reason that when two packing lists of the goods obtained from the concerned shipping line reflect the quantity of goods as 257 meters and 447 meters, hence, the total quantity comes to 704 meters, which is the actual declared quantity by the appellant. On the basis of documentary evidences, the contention of the appellant is entirely negated;

(i)That the case instituted against the appellant is based on true facts and circumstances, which emerged after the physical examination of the consignment was conducted and Invoice of higher value was retrieved from the container. In said circumstances, it is wrong to allege that the appellant has falsely been implicated in this case; Te fats given in above lines would clearly reveal that appellant committed criminal act by furnishing the false invoice of much lower value for the purpose of assessment.

(j)That the above discussed documents of evidentiary nature would be submitted before this Honourable Tribunal at the time of hearing of present appeal and further arguments would be advanced accordingly.

7.Arguments heard and concluded. After perusal of the record as well as the arguments extended by both the parties it has been observed that subject appeal was filed on 10-9-2013 by Collector of Customs against the Order-in-Appeal No. 7573/2013 with the prayer mentioned in the memo. of appeal. During the hearing of the case the respondent referred and presented a Judgment passed by the Tribunal in Customs Appeal No. K-791 of 2013, the said Appeal was filed by the present respondent against the same impugned Order-in-Appeal No. 7573 of 2013 which was accordingly decided in favour of the present respondent and the said order was passed by the Tribunal, Bench-II, Karachi on 22-10-2013. It is difficult to understand why the appellant failed to bring this aspect of the case before the Court neither at the time of hearing nor the same was mentioned in the pleadings placed through memo. of appeal, it is the duty of the appellant to assist the Court with all its fairness and required to plead the matter according to the legal obligations. But on the contrary department failed to do so even though the present appeal was filed during the pendency of the Appeal No.K-791 of 2013 of the Appeal No. KL-791 of 2013. After receiving the said present appeal, department issued the objection memo. to the appellant, the appellant was required to file the affidavit in support of the appeal duly attested by Oath Commissioner and also to file the authorization letter along with the certified copy of the impugned order No. 7573/2013 dated 11-7-2013 in response thereof the affidavit in support of appeal and authorization letter filed are not up to the mark of legal requirements as prescribed under the law. The authorization letter and its contents reveals that the Collector Model Customs Collectorate of Appraisement, Custom House, Karachi Authorized Deputy Collector AIB to file the subject appeal against the said impugned order but the affidavit in support of filing the appeal was submitted and executed by the Assistant Collector (AIB) which otherwise has no jurisdiction as per the prescribed law.

8.It has further been observed that assessment of imported consignment was finalized under section 80 of the Customs Act, 1969 on 26-5-2013 against that order/assessment no appeal was filed nor the same was challenged before the competent authority nor the Collector concerned has initiated the process to invoke the power under section 195 of the Customs Act, 1969 to re-open the case for examination and re-assessment.

9.The appropriate authority to pass order under section 80 of the Customs Act, 1969 and Rule 438 of Customs Rules, 2001 as notified in Serial No.3 (ii) of Notification S.R.O. 371(I)/2002 dated 15-6-2002 is Principal Appraiser. Resultant, he is the only authority to issue show cause notice for creating recovery. Neither superior nor subordinate are empowered to eclipse the powers of their subordinate/ superior while acting as quasi judicial officers and this has been time and again held by the Superior Judicial Fora in umpteenth reported judgments that it is an element to principle i.e. a mandatory condition for the exercise of jurisdiction by the Court, Tribunal or authority is not fulfilled as per the express provision of the Act/Rule than the entire proceeding which follows become illegal and suffers from want of jurisdiction/powers. Any order passed in continuation of these proceeding in adjudication or appeal equally suffer from illegality and are without jurisdiction. I am flabbergasted to note that the appellant intentionally ignored the said fact while passing orders despite not warranted under law and he completely ignored the provision of the Act/Rules and the citation relied upon by the appellant as evident from the fact that he summarily brushed aside those in very cursory and wonton manner. The High Court of Sindh held that "Any transgression of such jurisdiction for not being technical defect would render entire exercise of authority to be ab-initio, void and illegal---the exercise of jurisdiction by an authority is a mandated requirement and its non fulfillment would entail the entire proceeding to be "corum non-judice". Since, in the instant case the reassessment order is without power/jurisdiction, the entire proceeding right from reassessment order to order-in-appeal are also without lawful authority and jurisdiction.

10.The consignments corresponding to the instant appeal had been undergone the procedure of assessment/clearance order under the provision of sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Customs Rules, 2001 by the authority defined in Section 2(a) of the Customs Act, 1969 in exercise of the powers conferred upon by the Board through Notification No.S.R.O.371(I)/2002. This order is an appealable order and can be assailed either by the importer or the officer of customs under the provision of Section 193 of the Customs Act, 1969 within 30 days of the order as held by 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)---Ist 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 Constitution Petition was allowed". In this present case it was upon the officials of appellant to file an appeal, which was infact not filed to this date, resultant, original assessment order attained finality through limitation and cannot be disturbed by any authority as held in reported judgment 1989 MLD 4310 Ms. World Trade Corporation v. Central Board of Revenue, wherein their, lordship of High Court held that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that has attained finality, under the Sea Customs Act, 1878 and against which sou moto revision lay under the Act. In these circumstances the Collector of Customs Adjudication and Deputy Collector of Customs Adjudication were not empowered to start adjudication proceeding through issuance of show cause notice under section 180, while exercising power under the provision of sections 179 and 193 ibid. This is not permitted under law as held in Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 Ms. Smith Kline French v. Pakistan that "once an order is passed, which attain finality the same cannot be subject to a show cause notice again, considering that no appeal or revision is filed against the first order". By virtue of non filing appeal by the respondent Collectorate against the 1st assessment order dated 14-3-2012 within the stipulated period the transaction stood past and closed and attain finality and cannot be disturbed through any subsequent reassessment orders or order-in- original/appeal under law because it is also patently in derogation of Article 4 of Constitution of Islamic Republic of Pakistan, beside an act of "double jeopardy" not permitted under Article 13 of the Constitution. I therefore hold that the reassessment order dated 23-3-20113 passed by the respondent No. 1 and Order-in-Original dated 17-12-2013 passed by Collector of Customs, Adjudication-II and Order-in-Appeal dated 24-2-2014 passed by respondent No. 2 are not only arbitrary, illegal but mala fide and without any lawful authority hence void and ab-initio by virtue of being in derogation of the law laid down by the Superior Judicial Fora.

11.That under Article 4 of the Constitution of Islamic Republic of Pakistan every citizen enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen, wherever he may be, and every other person for the time being within Pakistan, clause (a) of Sub-Article (2) express that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. In the instant case the proceeding initiated by the respondent are in "unlawful manner" in negation of Article 4 and the judicial principle laid down from time to time by the Superior Court. It means, according to the accepted form of legal process and postulates, a strict performance of the function and duties laid down by law. It may well be as has been suggested in some quarters, that in this sense it is comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is mala fide or colorable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant consideration is also not an action in accordance with law. Action taken upon no ground at all or without proper application of mind by the quasi judicial authorities would also not qualify as an action in accordance with law and would therefore, have to be stuck down as being action taken in unlawful manner. A person acting in pursuance of a statute cannot be set to be acting bona fide, if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was action under the authority of statute, then it is a case of the court to look into it. In order to thwart, the commission of unlawful act in derogation of the provision of the statute the Hon'ble Supreme Court of Pakistan in reported judgment 2002 PTD 2457 held that " the thing should be done as they are required to be done, or not at all" and in PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner" and PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, 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. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd., and others reported as 2006 SCMR 129 "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."

12.Even otherwise the issue of valuation as allegedly created and imposed by the department also requires the consideration. Evidently at the time of first assessment without considering the available data of import and application of its valuation ruling or valuation advise. The value was assessed on higher side, to over come the subject issue during hierarchy of customs the matter was advised/directed by the orders and referred the same to the competent authority, valuation departments, such directions were also not complied with by the department or the concerned officials till to date and in reply of that question the department has no satisfactory answer to this Tribunal.

13.Being custodian of law and in view of the foregoing observations and interpretation of law and to follow the ratio decidendi observed by Superior Courts along with my additional observations the show cause notice and the impugned order passed during the hierarchy of customs infested with patent illegalities are declared to be null and void therefore, set-aside, the appeal is rejected with no order as to cost.

Announced in open Court.

HBT/12/Tax(Trib.)Appeal rejected.