AL-AMNA INTERNATIONAL VS DEPUTY COLLECTOR OF CUSTOMS, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1980 (2015)

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

----Ss. 3DD, 26-A, 32(3), 80, 83 & 194-A---Customs Rules, 2001, Rr. 438 & 442---S.R.O. 500(I)/2009 dated 13-6-2009---S.R.O. 371(I)/ 2002, dated 15-6-2002---Re-assessment---Appellants/importers, imported consignments of Fruit Mix and filed goods declaration, whereby goods were declared to be classifiable under HS Code 2008-9700, and the value was declared---Said declarations were accepted by Customs Authority, and goods were released without payment of sales tax---Subsequently it transpired that canned fruits were not eligible for exemption---Resultantly, Goods Released with inadmissible zero rating of Sales Tax, were re-assessed accordingly by authorities---Validity---Under provisions of S.3DD of the Customs Act, 1969, Directorate of Post Clearance Audit had been created and its Officials had been delegated powers through Notification No. S.R.O. 500(I)/2009, dated 13-6-2009 for conducting audit of the importer under S.26-A of Customs Act, 1969---Re-assessment by Deputy Collector Customs, Goods Declaration, after clearance, was without lawful authority, and being without any power/jurisdiction, was void ab initio and coram non judice--Re-assessment under S.80(3) of Customs Act, 1969, after release of the goods was permitted only after calling for the documents---Upon receipt of documents or information so submitted, if were found to be incorrect in respect of earlier assessment, the re-assessment could be made---No mis-declaration being visible in material particulars, no re-assessment was required under S.80(3) of Customs Act, 1969---Re-assessment was permitted prior to passing of order of clearance under S.83 of Customs Act, 1969 and R.442 of Customs Rules, 2001---No mandatory show-cause notice had been issued before ordering re-assessment---Mandatory conditions for exercise of jurisdiction, having not been fulfilled, entire proceedings, had become illegal and suffered from want of jurisdiction/power---Any order passed in continuation of those proceedings in adjudication of appeal, equally suffered from illegality and were without jurisdiction---Since re-assessment order, was without jurisdiction, the entire proceedings, right from re-assessment order, order-in-appeal, were also without lawful authority and jurisdiction---Adequate breach of principles of natural justice equated with breach of law by the hierarchy of the customs, suffered from grave legal infirmities, were declared illegal, void ab initio and of no legal effect---Appeals were allowed, in circumstances.

Case-law referred & relied.

(b) Interpretation of statutes---

----Taxing statute---Tax statutes, were to be interpreted in the light of what was clearly expressed---In case of ambiguity arising from construction, benefit must go to the tax payer---In interpreting the taxing statute, the executive must look to the words of the statutes and interpret in the light of what was clearly expressed---One could not imply anything which was not expressed and could not import provision in the statute, so as to support assumed deficiency---No room for intendment---No equity about a tax---No presumption as to tax, nothing was to be read in nothing was to be implied---One was only to look fairly at the language used nothing else to be done.

Case-law referred.

(c) Constitution of Pakistan---

----Art.4---Right of individual to be dealt with in accordance with law---Every citizen enjoyed the protection of law and was to be treated in accordance with law which was an inalienable right of every citizen, wherever he could be and every other person for the time being within Pakistan---No active detrimental to the life, liberty, body, reputation or property of any person would be taken, except in accordance with law---According to the accepted form of legal process and postulated, a strict performance of the function and duties were laid down by law---Action which was mala fide or colourable, was not regarded as action in accordance with law---Action taken upon no ground at all or without proper application of mind by quasi judicial authorities, would also not qualify as an action in accordance with law and would have to be struck down as being action taken in unlawful manner---Person acting in pursuance of a statute, could not be said to be acting bona fide, if he had no reasonable ground for believing that the statute justified what he did---If the case was one where there were no grounds or the grounds were such that no reasonable person, would have acted on the supposition that he was acting under the authority of statute, then it was a case of the court to look into it.

Case-Law referred.

Obayd Mirza and Nadeem Ahmed Mirza, Consultant for Appellants.

Ghani Soomro, Examiner for Respondents.

Date of hearing: 23rd October, 2014.

ORDER

MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I).--Through this common order, I intend to dispose of above captioned Customs Appeals filed under Section 194-A, by the appellants against Orders-in-Appeals Nos.K-385 to K-412 of 2014, K-413 to K-419 of 2014 and K-420 to K-421 of 2014, passed by the Collector of Customs (Appeals), Karachi (here-in-after referred as respondent No.2) maintaining the assessment orders dated 23-3-2013 passed by Deputy Collector of Customs, Group-I, MCC of PaCCS, Karachi (here-in-after referred as respondent No. 1). These appeals have identical issues of law and facts and are therefore being heard, dealt with and disposed of simultaneously through this common order in the light of judgment of the Honorable High Court of Sindh in Customs Reference No.157/2008 (S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Customs (Adjudication-I) and Others, Karachi.

2.Since the subject appeals are based on similar facts and question of law, therefore, it is needless to reproduce facts of each case separately, hence for reference the facts of Appeal No.K-385/2014 are taken into consideration for decisions. Brief facts of the case are that the appellants imported a consignment of Fruit Mix in Syrup (1800 Cartons, each Carton 24 x 836 GM)" from the Philippines and filed GD vide machine No. KCSI-HC-18864-08082012. The goods were declared to be classifiable under HS Code 2008.9700 and the value was declared to be US$ 0.4700 per unit. The declarations were accepted by Customs and the goods were cleared without payment of sales tax in terms of Serial No.16 of Table 1 of the 6th Schedule to the Sales Tax Act, 1990. However, subsequently it transpired that canned fruits were not eligible for exemption in terms of S.No. 15 of the 6th Schedule to the Sales Tax Act, 1990. Furthermore the Federal Board of Revenue vide its letter C.No. ST-L&P/2007/48560-R dated 16-4-2013 clarified that prepared fruits of Chapter 20 are chargeable to sales tax as the same are not covered under the 6th Schedule ibid. The goods released with inadmissible zero rating of sales tax were re-assessed accordingly.

3.After hearing the appeal, the Collector (Appeals) vide his above referred order, concluded as follows:--

"7. The learned advocate for the appellants again approached this forum and informed that a CPLA has been filed in the Honorable Supreme Court of Pakistan against the above judgment of the Sindh High Court and the Appeal may still be kept pending till the final decision of the case. However, this time the request of the counsel was not acceded to because no stay was granted to the appellants by the Supreme Court in the case. Moreover, keeping in view the fact that a Double Bench of the Honourable High Court of Sindh had given a clear and detailed verdict against the appellants (re-produced above) in which the learned Bench conclusively held that no exemption of sales tax is available to tinned / bottled or canned fruits. Therefore, the case cannot be pended any longer and accordingly, the Appeal is not accepted."

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

5.On the date of hearing Mr. Obayd Mirza, Advocate along with Mr. Nadeem Ahmed Mirza, Consultant, reiterated the contents of the appeal and contended that the respondent No.1 is not empowered to conduct post clearance audit, instead it rest with the Directorate General of Post clearance Audit in terms of Notification No. S.R.O. 500(I)/2009 dated 13-6-2009 Resultant, he usurped the powers of both the authorities, which is not permitted under law, the assessment passed was without power/jurisdiction, therefore null and void as held in the reported judgments "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 SC 514) Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra 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". The respondent No. 1 is not designated an Officer of Inland Revenue under the provision of, Clause (c) of subsection (3) of section 25 of the Sales Tax Act, 1990 and Section 120 of the Income Tax Ordinance, 2001 and as such is not empowered to lay hand on the matter of Sales Tax and Income Tax for recovery of short payment amount under the provision of Section 11 of the Sales Tax Act, 1990 and section 162(I) of Income Tax Ordinance. Hence, passing assessment order for recovery is without power/jurisdiction by virtue of the fact that he usurped the powers of Officer of Inland Revenue to which he is not vested, Rendering the assessment order being a flagrant violation of law and as such corum non-judice, null and void ab-initio. As stood validated from 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, Noshehra 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. He further contended that under the provision of sections 80 and 83 of the Customs Act, 1969 and 438 and 442 of Customs Rules, 2001, the order passed under the said provision of the Act become appealable order before respondent No. 2 under the provision of Section 193 of the Customs Act, 1969. The proper course of action was to file an appeal which was not filed resultant, the order dated 19-10-2012 attained finality by virtue of expiry of the stipulated period of 30 days as held in reported judgment 1989 MLD 4310 World Trade Corporation v. CBR, wherein it has been held that "A fortiori, the Central Board of Revenue could not open an order that had attained finality under the Sea Customs Act, 1878".

6.He argued that, in the instant case the respondent No. 1 piled upon order dated 23-3-2013 upon an existing order dated 9-8-2012 passed under sections 80 and 83 and Rules 438 and 442 of Customs Rules 2001, this is completely in derogation of section 80 of the Customs Act, 1969 and not permissible under the Constitution of Islamic Republic of Pakistan and this stood validated from the order of Hon'ble Sindh High Court in the case of Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 held that "once an order is passed, which attains finality, the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order. This was held by the learned High Court to be in derogation of the principles of administration of justice". "That with the passing of "Assessment/Clearance Order" by the authority defined in Section 2(a) of the Customs Act, 1969 the transaction stood past and closed in every aspect, and the said order cannot be substituted with any other order as a subsequent order cannot be allowed to pile upon an existing order, as it is not permitted under law besides the said exercise amounts to "double jeopardy" and negates the Article 13 of the Constitution of Islamic Republic of Pakistan besides also being in derogation of the law laid down by the Superior Courts of Pakistan. The respondent No. 1 was not empowered to disturb the said order, instead he passed yet another assessment order in the presence of earlier infield order under the provision of Section 80 and Rule 438 of the Act/Rule, despite barred by law and communicated amount of taxes of Rs.801,566.00 and pressurized the appellant to pay that and for implementation of his order he got the ID of the appellant blocked. He further argued that after the transmitting of assessment against the impugned good declaration against which Appeal No.4639/2013 dated 12-4-2013 was filed with the respondent No.2, the Collector of Customs, Adjudication-II issued show-cause notice No. ADJ.II/COLL/DIT/Amna/2013/14 dated 24-6-2013 and subsequently passed Order-in-Original No. 13 of 2013 dated 13-12-2013 are nullity in the eyes of law.

7.The learned Consultant further contended that reassessment under subsection (3) of Section 80 of the Customs Act is permitted after calling for the documents as expressed in Section (2) ibid after release of the goods and the declaration or documents or any information or statement so furnished is found to be incorrect in respect of earlier assessment. In the absence of availability of any mis-declaration, misstatement false documents/statement, reassessment is not permitted. As evident from the reassessment order, which is silent in this regard confirming that no mis-declaration in regards to any aspect i.e. declaration, documents, information or statement has been made by the appellant, rendering the assessment so made by the respondent is nullity to the provision of Section 80 of the Customs Act, 1969. The Board or Collector of Customs has the power to examine at their own the record of any proceeding for the purpose of satisfying itself or as the case may be, himself as to the legality or propriety of any decision or order passed by subordinate officer and may pass such order to as it or he may deem think fit as expressed in section 195 of the Customs Act, 1969. The assessment/clearance order passed under Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by the authority defined in Section 2(a) of the Customs Act, 1969, can only be reopened by the Collector under section 195 of the Customs Act and by none else as was done by the Collector of Customs, PaCCS as evident from the case of Messrs World Trading Communication, wherein order-in-original dated 13-1-2012 was passed by the competent authority after the original infield order was reopened by the Collector of Customs, PaCCS. The respondent No.1 is not vested with the powers under section 195 ibid. He usurped the power not vested with him, resultant the act of reopening of assessment/clearance order and piling upon with an other order under the provision of Section 80 and Rule 442 of the Act and Rule suffers from lack of powers and jurisdiction, hence void ab-initio as held by Tribunal and Superior Courts of Pakistan in umpteenth unreported/ reported judgments PLD 1975 SC 331, S.T. Appeal No. 984/98, S.T. Appeal 72/04, S.T. Appeal 54/09, S.T. Appeal No. 2352/99, S.T. Appeal No.106/03, 2002 CLC 705, 2004 PTD 624, 2004 PTD 3020, 2007 PTD 1895, 2009 PTD (Trib.) 1926, 2005 PTD (Trib.) 135, 2010 PTD (Trib.) 759, 2010 PTD (Trib.) 1283, Customs Appeal No. K-44/ 2010 and Customs Appeals Nos. K-435/08 to 455/08, SBLR 2002 Karachi 5, 2010 PTD (Trib.) 1759, 2010 PTD (Trib.) 2523, 2011 PTD (Trib.) 2480 PLD 1971 SC 197, PLD 1973 SC 236, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449 (1) Karachi, 2006 PTD 624, 2006 PTD 2237, 2010 PTD (Trib.) 832.

8.He further argued that the respondent by passing reassessment order infact committed a grave illegality as evident from the fact that he created a recovery on the basis of earlier assessment for which a mechanism has been provided in Section 32(3) come into play, verbatim of which is "Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 3 years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice". Prior to passing an order for recovery of short paid amount of duty and charge under the provision of Section 32(3) it is prerequisite to issue a show-cause notice under the provision of section 180 of the Act by the authority defined in Section 179 ibid because the main objective of show-cause notices is that the person to whom the notice is given is enable to fully know what are the charges leveled against him." It is mandated to issue show-cause notice under section 180 of the Customs Act, 1969. Even otherwise in cases where request for summary adjudication is made, in the words of Customs, Excise and Sales Tax Appellate Tribunal, Peshawar recorded in his judgment reported as 2004 PTD (Trib.) 1324 it was stated that "It is not understood as to under what law such right, which is primarily the duty of the Adjudicating Officer under Section 180 of the Customs Act, 1969 to issue show-cause notice before confiscation of goods or imposition of penalty, could be waived of by the owner of the goods or person, for imposition of penalty on him. Section 180 stipulates that three mandatory conditions are to be fulfilled step by step in chronological order and not simultaneously by the Adjudicating Officer before confiscation of goods or imposition of penalty. The provisions of section 180 of the Customs Act, 1969 does nowhere provide for the waiver of show-cause notice on the part of any person who has limited choice under it. The provisions of Section 180 of the Customs Act, 1969 do not absolve the Adjudicating Officer of discharging his responsibility to comply with the given charter."

9.He further argued that the assessment order reveals with clarity that no show-cause notice has been issued to the appellant by the respondent. Issuance of show-cause notice is a mandatory requirement for the adjudicating officers while adjudicating issues before them. This is also in violation of the principle of natural justice as held by Superior Courts in umpteenth reported judgments that:--

(i)It is the first principle of natural justice to issue a show-cause notice to the person concerned. It is a mandatory requirement for crystallization of monetary liability against the taxpayer through stating of material particulars of the case along with applicable provisions of the relevant law.

(ii)It is a well settled proposition of law that if a thing is required by law to be done in certain specific manner must be done in the same manner as prescribed by law or not at all as per maxim "Expressum facit cessare tacitum" as observed by the Apex Court in their judgments reported as PLD 1964 SC 536, 2003 SCMR 1505, 2006 SCMR 129.

(iii)Violations of principle of natural justice can be equated with violations of provisions of statutory instruments.

(iv)It is the common principle which governs the administration of justice in Islam that in case of liability with penal or quasi penal consequences and /or deprivation of basic rights, a notice as well opportunity of hearing is absolutely necessary. This by itself has to be recognized as a basic right as observed by Honourable Supreme Court, Shariat Appellate Bench in the case of Pakistan v. Public at large reported as PLD 1987 Supreme Court 304.

(v)Even issuance of a proper show-cause notice to a person is an essential ingredient of the expression "audi alterm partem" which literally means that no man shall be condemned unheard. The right of being issued with a show-cause notice and the right of being personally heard are inseparable and inalienable rights of the defendant and cannot be denied to the person `concerned under any circumstances.

(vi)In one case, the suspension without issuance of a show-cause notice was quashed by Dhaka High Court and was later confirmed by the Supreme Court that the rule of natural justice applies though there may not be any positive words in the statute, for such requirements and such rules are minimum requirements of fairness as reported in the case of University of Dhaka v. Zakir Ahmed PLD 1965 Supreme Court 90. This has also been followed by the Honourable Supreme Court of Pakistan in their judgment reported as 1994 SCMR 2232. As observed by the Honourable Supreme Court in the judgment M.D the Bank of Punjab v. Syed Shahzad Hussain reported as 2006 SCMR 1023, it is also a settled principle of law that principle of natural justice must be read in each and every statute unless and until it was prohibited by the wording of the statute itself as the law laid down by this Court in Sir Edward Nelson's case PLD 1961 SC 237, Fazal-ur-Reham's case PLD 1964 SC 410, Zakir Ahmed's case PLD 1965 SC 90, Pakistan Crome Mines' case 1983 SCMR 1208 and Pakistan's case PLD 1987 SC 304

10.He further contended that, Appraiser is the only authority to proceed in the matter instead of respondent because it is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. In S.R.O. 371(I)/2002 dated 15-6-2002 respondent No.1 figures no where rendering the assessment order as ab-initio void. If the opinion oftenly adopted by the authorities that Superior Authorities can exercise the powers of their subordinate under section 4 of the Customs Act, 1969 is considered valid for a while then the hierarchy of distribution of jurisdiction explicitly provided under Section 179 of the Act and S.R.O. 371(I)/2002 dated 15-6-2002 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 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 and S.R.O. 371(I)/2002 dated 15-6-2002. 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 is referred. Their lordship observed as "it is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void, ab-initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation of power warranted by law (the Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 @ p.339) an act done which the person doing, it has no jurisdiction at all to do or which was clearly outside the scope of his activities (The State v. Zia-ur-Rehman PLD 1973 SC 49) and a judgment or order delivered by a court or a judicial or a quasi judicial authority not competent to deliver it (Muhammad Swaleh and others v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97. The Constitution jurisdiction can thus be exercise when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No. 1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own cost".

11.The learned Consultant further argued that any action, taken in the absence of availability of powers or show-cause notice, the order has been passed, such order are of no legal effect as held by their Lordship of Supreme Court of Pakistan that "it is an element to principle that if a mandatory condition for the exercise of jurisdiction by Court, Tribunal or Authority is not fulfilled then the entire proceeding which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings in appeals or revisions equally suffers from illegality and are without jurisdiction" Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 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, Noshehra and others v. Sarfraz Khan and others, STA 444/03, STA 465/07, 2010 PTD (Trib.) 1636 and 2010 PTD 465,2010 PTD (Trib) 2158, 2011 PTD (Trib) 1010, 2011 PTD (Trib) 1680, 2011 PTD (Trib) 2086. He further argued that the law had prescribed method for doing of a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or attaining the objectives of performing or doing of a thing in a manner other than provided by law would not be permitted as declared in the landmark judgment of Director, Directorate General of Intelligence and Investigations and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129.

12.He also contended that the appeal with the respondent No. 2 was filed on 12-4-2013, the appeal before him was against assessment order and not against an order passed by an adjudicating authority under Section 179 of the Customs Act, 1969, against the contravention report prepared by Directorate General of Intelligence and Investigation against which Constitutional Petition with the High Court of Sindh was filed, resultant, the decision is not applicable on the appellant in any manner. Even otherwise the Hon'ble Supreme Court of Pakistan through its order dated 3-2-2014 in Civil Petitions Nos. 2163 to 2166 of 2013 has infact set aside the order of the Hon'ble High Court of Sindh and directed the concerned authority wherein the appeals are pending to decide the case strictly as mandated in law and Rules uninfluenced by any finding on merit of the case rendered in the impugned judgment, hence the order of the respondent No. 2 is in derogation of the order of the Hon'ble Supreme Court of Pakistan and as such of no legal effect, hence void ab-initio.

13.No cross objection under subsection (4) of Section 194A has been filed within the period specified therein not till the date of hearing instead Mr. Ghani Soomro (Examiner) argued and stated at the time of hearing the assessment order passed by respondent No. 1 and the order-in-appeal passed by respondent No. 2 are correct in fact and law being based on order of the High Court of Sindh and the advanced arguments by the Advocate/consultant of the appellant are irrelevant. On the basis of the clarification of the Board through letter dated 16th February, 2013, the re-assessment was accordingly conducted under Section 80(3) of the Customs Act, 1969. In accordance with the law and the subject case was not re-opened under Section 195 of the Customs Act, 1969. In support of his arguments, he submitted a copy of the judgment dated 6-8-2014 passed by the Tribunal wherein the same controversy has been decided in favour of the department, he prayed that the subject present appeal is liable to be dismissed in the interest of natural justice.

14.Arguments heard and concluded. After the perusal of the contents of the appeal as well as arguments extended before the Court by both the parties, it has been observed, at the first instance, that the observations made by the Collector (Appeals) at the time of deciding the matter relied on the observations made by the Division Bench of the Honorable High Court of Sindh where Honourable High Court has given clear and detail verdict against the appellant in which the learned Bench conclusively held that no exemption of sales tax is available to tinned/bottled or canned fruits. Therefore, the case can not be pended any longer and accordingly appeal is not accepted. It is noticeable from the record that the Honorable High Court passed the order on the point of maintainability as well as on the merits of the case which was accordingly challenged/assailed before the Honorable Supreme Court of Pakistan and during the hearing of the subject appeals that very fact was communicated to the adjudicating officer, but on the contrary the said impugned order was passed without waiting the result of Civil Petition pending before the Honorable Supreme Court of Pakistan. Before assailing the said subject impugned order the Honorable Supreme Court of Pakistan had passed the order in the pending CPLA and disposed of the matter with the observation that the customs authorities shall proceed to decide the matter strictly as mandated in law and the rules, uninfluenced by any finding on the merits of the case rendered in the impugned judgment of Honorable High Court of Sindh. Being the custodian of law it is the responsibility of the Tribunal to evaluate the controversy raised by the appellant as per the mandate of law and strictly under the legal obligations prescribed thereunder.

15.By doing so, I prefer to take the issue of exemptions, the plain language of the Serial No. 15 of Table 1, without examining the Note 1 and Table II (for supply) of the Sixth Schedule to the Sales Tax Act, 1990. From careful examination of the said serial number in the light of note 1 to the Sixth Schedule it is vividly clear that "edible bottled or canned preserved fruits are exempted" on the basis of description of the goods irrespective of non mention of PCT heading in column (3) of the Schedule and note aptly clarifies that "PCT classification of heading is provided for ease of reference and commodity classification purpose only and exemption under the said serial number said to be admissible on the description of goods as mentioned in column (2). No other meaning can be given to the said serial number with the exception of its spirit. The respondents while merging the Table II in Table I implied extra words in the Serial No 15 and interpreted it as 'exemption is applicable to local supply and not imports, but import from Afghanistan are exempted, with the exception of bottled or canned" through their own adopted principle of interpretation while ignoring the well settled law that the tax statutes are to be interpreted in light of what is clearly expressed. In case of ambiguity or doubt arising from construction, benefit must go to the tax payer. Thus no other meaning can be given to the said Serial Number 15 of Table 1 read with Note 1 with the exception of its spirit and nothing can be added or subtracted, meaning thereby that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment. There is no equity about a tax. There is no presumption as to tax nothing is to be read in, nothing is to be implied. One only look fairly at the language used nothing else to be done" as held by High Courts and this Honorable Court in many judgments, such as 1989 CLC 1463 (Abassi Steel Industries Ltd. v. Collector of Customs), 2011 PTD (Trib.) 79 (Messrs Fazal Ellahi v. Additional Collector of Customs), 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227. It is considered opinion of the Superior Judicial Fora in a number of judgments "that tax payer should not be made to suffer on account of bad drafting of the statute". Reliance is placed on the judgment of High Court of Sindh reported as 2004 PTD 90, wherein the Hon'ble judges of the Bench held that "While interpreting the taxing statute the Court must look to the word of statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed. It cannot import provision in the statute as to support assumed deficiency." "While finding out intention of the legislature language of the law is not be seen and if the intention is cleared from the language used nothing else is to be done." "if the legislature has not sufficiently expressed itself Court has no duty to act for it, for court is concerned with what it lays down and not what it has only in mind, but once it has been articulated enough Court does not more than give effect to the intention that it has succeeded in expressing. The intention may be expressed in faulty language, in very faulty language, in-extremely faulty language, this is of no consequence as long as there is no doubt as to the intention. A draftsman's mistake as long as it relates to form in which the legislative intend is expressed and not to the substance of it, is of no effect of course ones an element of doubt as to the intention of the legislature enter the field consideration otherwise irrelevant may all become relevant.

16.The denial of exemption in terms of Serial No. 15 of Table 1 and Note 1 of Sixth Schedule to the Sales Tax Act, 1990 on the basis of arbitrary and illegal interpretation made by the respondents is void and contrary to the expression and law laid down by the superior judicial fora. In accordance with which no other meaning can be given to the word "but" and "excluding" except their literal meaning, which is clear as no definition of these words is given in Section 2 of Sales Tax Act, 1990. Resultantly, plain and unambiguous meaning has to be adopted or dictionary meaning of standard dictionary for assigning the meaning of these words. Honorable High Court, in C.Ps. Nos. D-2172 and 2799 of 2009 and 09, 174505 and 607 of 2010, wherein it was ruled/held that 'Palms Nuts' and 'Kernal', falling under PCT heading 2305.6000 are exempted under Serial No. 28 of Table 1 of the Sixth Schedule, if read with Note 2 to the Schedule irrespective of the fact that nor column 2 neither column 3 contains the declared description and PCT heading. The order passed by the respondent No. 2 shows is not a proper order, instead an order without application of judicial mind and provision of the Act. Rendering it a non speaking order and did not conform to the mandated requirement of S.24-A of the General Clauses Act, 1897 and this stood validated from the order containing no rebuttal on the pleas of the appellant, instead the basis of order of Hon'ble High Court of Sindh, which have been declared by the Hon'ble Supreme Court not to be relied upon by the Appellate Authority and pass order within the parameter of law. Orders which did not contains rebuttal on the ground advanced and decision/judgments relied upon by the appellant and also not containing substantial reasons and did not shows that these were passed on objective consideration shall always be treated as illegal, void arbitrary and a result of misused of authority vested in public functionary. No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication order is being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173 1984 SCMR 1014 and 2012 PTD (Trib.) 619. There are two or more interpretations of a provision pertaining to levy of tax on account of anomaly/ambiguity, the one favorable to tax payer has to be adopted by the Court. This is as per judgments reported as 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227 without prejudice, it is imperative for the appellant to state that where the words are plain and unambiguous, the intent can be best judged by giving full effect to the ordinary grammatical meaning of those words, meaning there by that where the context and the language resolve the meaning, resort to object and purposes is uncalled for, as held in many reported judgments; e.g. NLR 1989 SCJ 29(sic), 1987 SCMR 1107, PLD 1987 Lah. 415 and 1987 SCMR 1107.

17.By doing so, I also prefer to deliberate with the issue of jurisdiction by considering the amendments passed by the legislature has inserted Section 3DD in the Customs Act, 1969 through which Directorate of Post Clearance Audit has been created and its officials had been delegated powers through Notification No.S.R.O. 500(I)/2009 dated 13-6-2009 for conducting audit of the importer under Section 26A of the Customs Act, 1969 which includes every aspects of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter-III of Chapter XXI of the Customs Rules, 2001 and upon finding discrepancy or any ambiguity in the declaration or the contravention of the law, audit observation is prepared and forwarded to the importer for clarification and if the reply fails to settle the issue, frames contravention report and forward to the Clearance Collectorate, which onward forward to the respective Collectorate of Customs, Adjudication for issuance of show-cause notice under section 180 of the Customs Act, 1969 and passing of order-in-original as per the expression of Section 179 ibid. The respondent No. 1 assumed the powers of officials of Directorate General of Post Clearance Audit and conducted the audit post clearance of the Goods Declaration of the appellant under Section 26A in the absence of availability of powers. The respondent No. 1 is not at all empowered to transgress the sovereign jurisdiction of DG, PCA under any circumstances as this will render the formation of DG-PCA by the legislature under Section 3DD of the Customs Act, 1969 and the powers delegated under Notification No. 500(I)/2009 dated 13-6-2009 as redundant. The Tribunal has observed with great concern that the respondent Collectorate is running parallel departments to the DG, PCA in derogation of Section 3DD ibid, this is not permitted under law as the said act shall be instrumental in creating a situation of anarchy within the different organs of FBR, who will left no stone unturned for exceeding their jurisdiction while encroaching the powers/jurisdiction of the other sovereign organ of the FBR. These types of acts cannot be allowed to be perpetuated under any circumstances instead have to thwart from the very beginning for sustaining the integrity and independence of the different sovereign organs of FBR. Therefore, the re-assessment dated 23-3-2013 passed by respondent No.1. The Goods Declaration of the appellant after clearance is without any lawful authority as such without any power/ jurisdiction, hence, void ab-initio and corum non judice as held in the relied upon judgments on the said point of law by the appellant consultant/advocate in para 3 (a) supra.

18.Even otherwise, upon perusal of assessment order it has been noticed that the respondent No. 1 through the said assessment order created recovery of Sales Tax and Income Tax, which falls within the ambit of section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. The Consultant /Advocate of the appellant has strongly contended that he has not been appointed as officer of Inland Revenue under section 30 of the Sales Tax Act, 1990 and section 207 of the Income Tax Ordinance, 2001 therefore has no powers to proceed under the provision of sections 11 and 162(1) of the Act/ Ordinance.

18A. From conscientious study of Section 30 of Sales Tax Act, 1990 and Sections 228 to 230A of the Income Tax Ordinance, 2001, it is observed that the legislature appoints under the said sections different officers of the FBR as Officer of Inland Revenue for exercising powers under the respective Sections of the Sales Tax Act, 1990 delegated separately through statutory notifications and in accordance with section 207 of the Income Tax Ordinance, 2001. In these Sections respondent No.1 figures nowhere confirming that he is not empowered to exercise powers under section 11 of the Sales Tax Act, 1990 and section 162(1) of the Income Tax Ordinance, 2001. To further elaborate and settling the issue to its logical conclusion, I add while referring to section 6 of the Sales Tax Act, 1990 and 148 of the Income Tax Ordinance, 2001 through which the respondent Collectorate is empowered to collect the Taxes on the imported goods as like custom duty on the value determined under Section 25 of the Customs Act, 1969. The said Sections least empowers the Officers of Customs including the respondent No. 1 to initiate recovery proceeding for the short collected/paid Sales Tax and Income Tax either due to collusion or connivance or inadvertence, error or misconstruction. For proceeding for these type of recovery a show-cause notice has to be issued under the Provision of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, the authority to issue show-cause notice under Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance 2001 are Officers of Inland Revenue and the Commissioner of Income Tax. The respondent No. 1 assumed the powers not vested with him. Meaning thereby the Customs Collectorate have powers to collect sales tax and income tax as duty at import stage not post importation and they stood fortified from the reported judgment 2010 PTD (Trib.) 2086, 2011 PTD (Trib). 110 Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi, Order-in-Customs Appeal No.K-903/2011 Messrs Moon Enterprises, v. Collector of Customs MCC (PaCCS) and others, K-236-270/2012 Messrs Fort Tiles v Additional Collector of Customs, MCC of PaCCS and another and reported judgment 2014 PTD (Trib.) 299, Messrs K-460/2012 of Messrs M.I. Traders, Lahore v. Additional Collector, MCC of PMBQ, Karachi and by Hon'ble High Court of Islamabad in Customs Reference No. 01/2010 Collector of Customs, Rawalpindi v. Global Marketing and Services etc., wherein order of the Tribunal in Customs Appeal No.187/ CU/IB/ 2008 dated 31-7-2009 on the said issue was maintained, similarly in recent judgment announced by the Hon'ble High Court of Sindh in Petition C.P. No.D-216/2013 of Messrs Lucky Cement Ltd Karachi v. Federation of Pakistan and others it has been held:--

"The word emphasized could be regarded as being in the nature of deeming provisions. If so, then (subject to the rules of interpretation that apply in such a situation) that nature of sales tax or excise duty on imports, for purpose of levy, charge or collection (as the case may be), may be regarded as a customs duty. Clearly, this would be a materially different situation than that which obtains in relation to advance income tax on imports. In our view, the jurisdiction of the customs authorities (i.e. the Collector of Customs) is limited to only the collection of the advance income tax. Furthermore, subsection (6) of section 148 emphasizes that provisions of the Customs Act apply only to the Collection of the tax and that too, only in so far as is relevant. Since there is a clear distinction between the collection of a tax on the one hand and its recovery or enforcement on the other, in our view, the provision of the Customs Act as relate to the latter are not applicable in relation to the jurisdiction conferred on the Customs Authorities under section 148."

20.Whereas in reported judgment 2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd., v. Collector of Customs and 8 others, the Hon'ble High Court of Sindh held that "the customs authorities has no powers under law to restrict release of ' duty paid consignment' on the plea that imported goods were liable to be assessed at the rate of 5% of 'advance tax' [prescribed for one's own manufacturing used] and not at reduced rate of 3% of 'advance tax' [prescribed for industrial used]. Such act of custom authority was without jurisdiction and lawful authority. Custom authorities under law were merely collection agent on behalf of Inland Revenue Department for collection of 'advance tax'. Denying refusal of the consignment on the pretext that income tax is payable @ 5% as against 3% on the basis of reduced rate certificate issued by the Commissioner of Inland Revenue is not only arbitrary, mala fide but also without any jurisdiction, hence illegal, void and ab-initio".

21.The opinion formed further stood validated in addition to the above referred judgments from the judgments of 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23 and 2007 PTD 250 titled as Collector of Sales Tax and Federal Excise v. Messrs Qasim International Container Terminal Pakistan Ltd., it was held that "There is a clear distinction between the charging provision of Statute and the machinery part thereof. It is axiomatic that mode of manner of recovery does not alter the nature of tax nor a tax can be introduced or import by implication." It has been held in another judgment of Hon'ble Lahore High Court, Lahore 2008 PTD 1973 titled as Xen Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax, Faisalabad, -- "That fiscal law is to be applied with full authority and its natural meaning-one has to look merely at what is clearly said and there is no room for any intendment-neither there is equity about a tax nor presumptions as to tax - nothing is to be read in, nothing is to be implied---one can only look fairly at the language used". The Hon'ble Supreme Court of Pakistan in reported judgment 2006 SCMR 129 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd., and others held that "If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted---each and every words appearing in a section is to be given effect and no other word is to be rendered as redundant or surplus---when the legislature required the doing of a thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred -- if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expressum facit cessare tacitum"

22.Although, the re-assessment of the Goods Declaration is permitted under section 80(3) of the Customs Act, 1969 after exhausting of the procedure laid down in section 80(2) ibid, for better understanding same are reproduced here-in-below:

(2)An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of goods by Customs;

(3)if during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment, the goods, shall, without prejudiced to any other action which may be taken under this Act be reassessed to duty.

Upon scrupulous reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), unless subsection (2) is not complied in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re-assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in section (2) ibid. Upon receipt of documents or the information so transmitted/submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessment the reassessment can be made. The reassessment order passed by the respondent No.1 has been examined and observed that no mis-declaration is visible in material particular and this further stood validated from the penned remarks reading as "reviewed as per KPPI-HC-3176-24072012", therefore in the instant case no re-assessment was warranted under Section 80(3) of the Customs Act, 1969. Even otherwise, I fail to comprehend that what prompted him to pass reassessment order when the law does not permit him if ingredient defined in Section 80(2) are missing. In principle if it is considered for the sake of arguments that the customs is empowered to reassess a Goods Declaration after clearance of the goods under Section 80(3) without adhering the procedure laid down in Section 80(2), there was no need for the legislature to frame subsection (2). The intention of legislature was not as interpreted by the respondent No. 1. The fact of matter is no reassessment is permitted under Section 80(3) of the Customs Act, 1969 once the goods are cleared. The reassessment is permitted prior to passing of Order of clearance under Section 83 and Rule 442 ibid upon filing of review by the importer under Rule 441 ibid against the assessment orders of Appraiser/Principal Appraiser before the Principal Appraiser and Assistant/Deputy Collector of the Group as the case may be, rendering the reassessment order dated 23-3-2013 by the respondent No. 1 in derogation of Section 80 and Rule 438 of Sub-Chapter-III of Chapter XXI of Customs Rules, 2001 and as such without any lawful authority, hence void and ab-initio.

23.Upon transmitting clearance order dated 9-8-2012 under section 83 of the Customs Act, 1969 and Rule 442 of Customs Rules, 2001 to the appellant by the Clearance Collectorate with the subject "GD KCSI-HC-18864-08082012 has been sent to gate out staff for check out" on the strength of assessment order made under Section 80 and Rule 438 of the Act/Rules. Consequent to which the appellant clearing agent obtained the delivery on the same date. After lapse of more than 07 months the respondent No. 1 after reassessing the Goods Declaration forwarded view message dated 23-3-2013 to the appellant reading as "B/L No. 002676901 has been sent to cashier for payment. You are requested to pay Rs. 420,604.00" when infact the act of clearance stood concluded on 9-8-2012. This view message after post clearance is by all means falls within the definition of demand notice for recovery of short paid amount of taxes due to commission of inadvertence by the Officials of Clearance Collectorate. Such type of recovery can only be created upon passing of an order after issuance of show-cause notice under section 32(3) of the Customs Act, 1969, expression of which is reproduced "Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 3 years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice".

24.In the instant case admittedly no show-cause notice has been issued despite mandated under law, issuance of show-cause notice is pre-requisite and cannot be dispense with under any circumstances. While creating recovery through view message dated 23-3-2013 the respondent No. 1, infact committed violation of the provision of Section 32(3) of the Customs Act, 1969 and principle of natural justice rendering the recovery so created without any lawful authority and as such void ab-initio in the light of reported judgment referred by the appellant in grounds incorporated in para 5(h) supra and the reported judgment 2006 PTD 978 Forte Pakistan (Pvt.) Ltd., Karachi v. The Director General of Intelligence and Investigation (Customs and Excise) Karachi and another, wherein it has been held that "service of notice under section 32 of the Customs Act, 1969 is a condition precedent for initiation of proceedings, in the absence of notice under section 32 on the importer the entire proceeding initiated by the Adjudicating officer and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction, void and inoperative. The entire proceeding are accordingly struck off" and the Hon'ble Supreme Court of Pakistan in judgment reported as 2001 SCMR 838 Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electric Lamp MFG Co., Ltd, Peshawar held that "demand notices in the absence of statutory show-cause notices were without lawful foundation. It is well settled proposition of law that a thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all since pre requisite show-cause notices as required by law have not been served on the respondents, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore, in the absence of statutory notice, demand notices dated 25-7-1995 and 26-7-1995 were without lawful authority and thus of no legal effect." I therefore hold that the recovery/demand notice communicated through view message dated 24-3-2013 is being issued in vacuum and as such without any lawful authority, hence, null, and void ab-initio and the structure built upon this order has no legal value.

25.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. To the contrary, the respondent No. 1 created recovery through view message dated 23-3-2013 by usurping the powers of his subordinate, which is not permitted under law. 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 judgment that it is an element to principle i.e. a mandatory condition for the exercise of jurisdiction by the Port, 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 respondent No. 2 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 the those in very cursory and wanton manner. The fact of matter is that the relied upon citation by the appellant quoted in para 3(xi) to (xiv) incorporated in pages 6 to 8 of the order-in-appeal are applicable with full force in the case of the appellant and so he relied upon case reported at 2010 PTD 465 Collector of Customs, Model Customs Collectorate v. Messrs Kapron Overseas Supplies Co., (Pvt.) Ltd., as case identical to the appellant, 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.

26.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.SWO-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 i.e. on or before 8-9-2012 as held 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 Constitution Petition was allowed." In this case it was upon the officials of respondent No. 1 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 Messrs 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 suo motu revision lay under the Act. Inspite of the law laid down, the respondent No. 1 passed reassessment order dated 23-3-2013 under Section 80(3) of the Customs Act, 1969. Which was assailed by the appellant before respondent No. 2 under the provision of Section 193 of the Customs Act, 1969 on 12-4-2013 vide No. 4633/2013 and the matter stood sub-judice. In the presence of these vital facts on record the Collector of Customs (Adjudication-II) issued show-cause notice dated 24-6-2013 and thereafter passed Order-in-Original 13/2013 dated 17-12-2013 and respondent No. 2 passed Order-in-Appeal No.8479 dated 24-2-2014 which were not warranted under law as the allegation contained therein, were very much the basis for passing re-assessment order by the respondent No.1. In these circumstances the Collector of Customs Adjudication-II and respondent No. 2 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., because their act is tantamount to piling upon multiple orders dated 14-3-2012, 17-12-2013 and 24-2-2014 on the existing order dated 9-8-2012. This is not permitted under law as held in Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 Messrs 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 attained 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 23-3-2013 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.

27.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) expresses 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 is 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 said 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 acting 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 in 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."

28.The super structure built on such unlawful foundation no matter how strong it is has to fall. Refer to PLD 1996 Karachi 68, which laid down that "where the initial order or notice was void all subsequent proceedings, orders or super structure built on it were also void" and in 2006 PTD 978 it has been held that "the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative" and PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction---all successive orders based upon it illegal and liable to be quashed". It is also important to controvert the contents of the observations of the judgment referred by the department passed by this Tribunal found at par with the present controversy the strength of the arguments presented and placed by the appellant needs the legal interpretation which was accordingly observed in detail and subsequently reasons for its interpretation about the subject controversy has been properly placed with support under the warrant of law.

29.By getting the strength, to what have been discussed herein above, particularly the interpretation of law and legal proposition in the light of prescribed law and observations made thereon and to follow the ratio decidendi, observed by the superior courts and my own observations, I hold that the re-assessment orders dated 23-3-2013 and subsequent proceedings, actions and orders passed are completely without jurisdiction, adequate breach of natural justice has been equated with breach of law during the hierarchy of the customs, suffers from grave legal infirmities are declared illegal, ab-initio and of no legal effect on various accounts as detailed above, appeals are accordingly allowed with no order as to cost.

30.Orders passed and announced accordingly.

HBT/11/Tax(Trib.)Appeals allowed.