STAR IMPEX, KARACHI VS DEPUTY COLLECTOR OF CUSTOMS, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2584 (2015)

(a) General Clauses Act (X of 1897)---

----S. 24-A---Decision by public functionaries---Principles---If any authority, court or tribunal gave findings of fact which were not based on material available on record such findings of fact were illegal, arbitrary, perverse, violative from established principles of appreciating of evidence and not sustainable in law---Every judicial or quasi-judicial findings would be based on reason containing justification for finding in order---Orders which did not contain rebuttal on ground advanced and decision/judgments relied upon by the party and also not containing substantial reasons and did not show that these were passed on objective consideration would be treated as illegal, void, arbitrary and result of misuse of authority vested in public functionary.

2007 PTD 2500; 2004 PTD 1973; 2003 PTD 777; 2003 PTD (Trib.) 2369; 2005 PTD 2519; 2005 PTD 1189; PLD 1995 SC (Pak) 272 and 1984 SCMR 1014 rel.

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

----Ss. 32(1), 32(2) & 179---SRO 886(I)/2012 dated 18-7-2012---Allegation of misdeclaration---Contents of show-cause notice showed that there was no revenue loss by virtue of alleged mis-declaration---Importer had not submitted any forged/false documents/declaration which was evident from show-cause notice---Validity---Sections 32(1) & 32(2) of Customs Act, 1969, were not to be read in isolation, instead in conjunction with S.32(2) or S.32(3) of Customs Act, 1969---Powers vested with Department under S. 179 of Customs Act, 1969 had not been withdrawn through S.R.O. 886(I)/2012 dated 18-7-2012---According to S.R.O. 886(I)/2012 cases involving technical violation of import or export restriction without involvement of any evasion of duty and taxes, would not be adjudicated by adjudicating officer of Customs---Powers of adjudication were specific and empowered by statute.

Collector of Customs (Exports) and another v. R.A Hosiery Works 2007 PTD 2215 rel.

2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; 2006 PTD 978; PLD 1971 SC 184; Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar. 68 and Collector of Customs (Exports) and another v. R.A. Hosiery Works 2007 PTD 2215 ref.

(c) Interpretation of statutes---

----Where there was conflict between special and general provision of law, special law should prevail---Power of adjudication was special in nature and it could not be eclipsed by any other general provision.

Lt.-General (Retd.) Shah Rafi Alam v. Lahore Race Club 2004 CLD 373 rel.

(d) Interpretation of statutes---

----Absurdity/redundancy in a statute---Court could supply construction with a view to avoid absurdity---Redundancy had to be avoided in respect of any provision of statute.

Khalid Qureshi v. UBL 2001 SCMR 103 and East West Steamship v. Queen Land Insurance PLD 1963 SC 663 rel.

2002 PTD 2457 and PLD 1973 SC 236 ref.

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

----Ss.4 & 179---S.R.O. 371(I)/2002, dated 15-6-2002---Redundancy in respect of powers conferred under S.179 of Customs Act, 1969 and S.R.O. 371(I)/2002, dated 15-6-2002---Effect.

(f) Interpretation of statutes---

----Where there was a conflict between two provisions of a statute, later provision would prevail and given precedence.

East West Steamship v. Queen Land Insurance PLD 1963 SC 663 rel.

(g) Jurisdiction---

----Scope---Law favour actions of authorities to be confined to their own spheres of jurisdiction conferred by statute---Action taken by a state functionary beyond its ambit of jurisdiction was nullity---Where an inferior tribunal or court had acted wholly without jurisdiction or taken any action beyond the sphere allotted to tribunal by law and therefore outside an area within which law recognized a privilege to err then such action amounted to usurpation of power warranted by law and such an act was nullity and a result of purported exercise of authority which had no legal effect whatsoever---Appeal allowed, accordingly.

East West Steamship v. Queen Land Insurance PLD 1963 SC 663; Abida Rashid v. Secretary Government of Sindh PLD 1995 Kar. 587; E.A. Avans's case PLD 1964 SC 536; 2001 SCMR 838 and 2003 SCMR 1505 rel.

Nadeem Ahmed Mirza for Appellants.

Noor Akbar AO and Abdul Ghani EO for Respondents.

Date of hearing: 21st January, 2015.

JUDGMENT

MUHAMMAD NADEEM QURESHI, MEMBER JUDICIAL-I---This order shall dispose of the instant appeal under Section 194-A of the Customs Act, 1969, filed by Messrs Star Impex, Karachi, against the Order-in-Appeal No.8652/2014, dated 21-5-2014, passed by the Collector of Customs (Appeals), Karachi.

2. Brief facts of the case are that the appellant electronically filed Goods Declaration and sought clearance of the 'used and worn 2nd hand white sheeting rags' under Section 79(1) of the Customs Act, 1969, by determining the liability of taxes at their own. The scrutiny for under reference GD in terms of Section 80 of the Customs Act, 1969 was carried out and the examination report revealed as "used hospital bed spread (bed sheet) and pillow covers of white colour (some of which printed health care services)". The discrepancy regarding description of goods, reported by Examination Staff led to mischief of Section 32 of Customs Act, 1969 and thereafter the violation of Import Policy Order in vogue. The offending value of misdeclared value amounted to Rs.2,213,898. The aforesaid facts prove that the appellant had deliberately mis-declared the item specification and classification wilfully with mala fide intention and have attempted to seek clearance of such goods which otherwise were not importable as per IPO and the appellant had attempted to defraud the government from its legitimate revenue amounting to Rs.648,333. The determined value of the offending goods amounted to Rs. 2,213,898. Thus, the appellant was accordingly charged under the relevant provision of law for deliberately misdeclaring the item specification and classification and the adjudicating officer held that the charges against he appellant had been proved. The operative part of the impugned order reads as under:--

"I have gone through the facts of the case and considered the both examination reports conducted by the shed staff. Scrutiny of the Goods Declaration reveals that the importer has imported declared to contain USED AND WORN 2ND HAND WHITE SHEETING RAGS but on examination goods were found USED HOSPITAL BED SPREAD (BED SHEET) AND PILLOW COVERS OF WHITE COLOUR (SOME OF WHICH PRINTED HEALTH CARE SERVICES) Later on re-examination of the goods also carried out and goods were found OLD AND USED WHITE COVERING SHEETS AND PILLOW COVERS PACKED IN BALES; HEALTH CARE SERVICES PRINTED ON SOME SHEETS BUT THESE PACKED IN USED CLOTHGING BALES" which are banned in terms of Serial No. 26 of Appendix A of Import Policy Order, 2013. The importer has not submitted any valid argument to prove that the subject goods are importable. The case can not be kept pending for indefinite period as ample opportunities of hearing has already been provided. The charges levelled against the importers stand established. Therefore, the goods are outrightly confiscated being banned items under sections 181 and 156 of the Customs Act, 1969, read with S.R.O. 499(I)/2009. A penalty of Rs.10000 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."

3. Being aggrieved and dis-satisfied with the Order-in-Original, the appellant filed appeal before the Collector of Customs (Appeals), who vide impugned Order-in-Appeal observed as follows:--

"I have gone through the record of the case and heard the learned counsel for the appellant and the respondent's representative, the plea taken by the appellants counsel that impugned goods are not Hospital waste is not tenable. It is evident from the examination report that impugned goods are "SUED HOSPITAL BED SPREAD (BED SHEET) AND PILLOW COVERS OF WHITE COLOUR (SOME OF WHICH PRINTED HEALTH CARE SERVICES)" being Hospital waste attracts S.No. 26 of Appendix-A to the Import Policy Order, 2013. The S.No. 26 covers all types of hospital wastes, therefore this is not limited to medical waste as contended by the appellants. I therefore, uphold the impugned order-in-original passed by the adjudicating authority. Accordingly, the appeal is rejected."

4. On date of hearing the consultant appearing on behalf of the appellant reiterated the grounds of appeal and further argued that Government of Pakistan has not withdrawn the powers vested to Custom Officers of Executive Collectorate under section 179 of the Customs Act, 1969 through Notification S.R.O No. 886(I)/2012 dated 18-7-2012, in the cases involving technical violation of import export restrictions without any involvement of evasion of duty and taxes as evident from Sub-Para (d) of Para 3 of the Notification. Nevertheless, since in the instant case revenue loss had been calculated without any cause or reason and Section 32 has been invoked, while calculating the revenue loss, resultant the case in question stood ousted from the jurisdiction of Executive Collectorate in terms of Notification No. 886(I)/2012 and the authority to issue show-cause notice is the Collectorate of Customs Adjudication. While laying hand on the instant case the respondent No. 1 has transgressed the authority vested with the Officer of the Adjudication Collectorate, rendering the issuance of show-cause notice and order-in-original being in-flagrant violation of law and as such coram non judice, hence void and ab initio as held in reported judgments 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505, In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. He further contended that for evasion or fraud or for short payment of Sales Tax and Income Tax Section 11 and also the Section 162(I) of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001 have to be invoked instead of Section 33 and Section 148 of the Act/Ordinance in the show-cause notice. The competent authority to adjudicate cases of such offences is the "officers of Inland Revenue" under the provision of Section 11 of the Sales Tax Act, 1990 and 207 of Income Tax Ordinance 2001. The respondent figure nowhere in the aforesaid provisions of the Act/Ordinance. Rendering the issuance of show cause notice and passing of order-in-original as being in flagrant violation of law and as such coram non judice.

5. The learned consultant further contended that irrespective of the above illegality, it is imperative for the appellant to point out that the respondent has even no power under section 179 of the Customs Act, 1969 by virtue of no involvement of duty and taxes, which is a fact and the case in question falls within the ambit of Section 80 and the competent officer under the said section is Principal Appraiser as evident from notification S.R.O. No.371(I)/2002 dated 15-6-2002, to be read with Section 2(a) ibid. Meaning thereby that he is empowered 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 figure nowhere, rendering the show-cause notice as well as the order-in-original as ab initio and void. If the opinion often adopted by the authorities alike Deputy/Additional Collector 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 by 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.

6. He further contended that Section 32(1) and (2) are not to be read in isolation instead in conjunction with Subsection (2) or (3) i.e. there should be a revenue loss by virtue of the alleged mis-declaration, in the instant case there is no revenue loss hence these cannot be invoked as evident from the fact that the appellant has not submitted any forged/ false documents/declaration as evident from charter of show-cause notice and retrieved invoice, the stance of appellant stood validated from the umpteenth Judgment issued by the Judicial Fora on the said issue and the most important is PLD 1996 Karachi 68, Kamran Industries v. Collector of Customs (Exports) in which it has been held in unequivocal terms that where there is no revenue loss the provision of Section 32(1) cannot be invoked. Similarly in reported Judgment 2007 PTD 2215 Collector of Customs (Exports) and another v. R.A Hosiery Works, their Lordship Rana Bhagwan Das and Saiyed Ashhad JJ, held that; provision of:--

"Provision of S.32(1) of Customs Act, 1969, would be attracted only when a mis-declaration or mis-statement was made with a view to obtain illegal gain by evasion of payment of customs duty and other taxes or by causing loss to Government revenue---Mis-declaration alleged to have been made in the case, was neither for evasion of payment of customs duty to other taxes/charges nor the same has caused any financial loss to the Government---Petition for leave to appeal by the Authorities being without merit, was dismissed."

7. He further argued that in the instant case of the appellant not only the show cause as well as order-in-original are without any powers/jurisdiction rendering the entire act right from show cause notice till order-in-original void, ab-initio. Resultant, the show cause notice and subsequent order suffer from legal infirmity and liable to be struck down as of no legal effect and nullity to law and non-existent. The Hon'ble High Court of Sindh held in reported judgment 2002 PTD 2457 that "the thing should be done as they are required to be done, or not at all". Whereas, the Apex Court held in reported judgment 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" in reported judgment PLD 1973 Supreme Court 236.

8. He also argued on the point that it is worth relying on the examination reports e.g. 1st examination report which confirms retrieval of invoice, whereas the remaining two reports are contrary to this and states no documents were found. It is evident that none of these reports speaks about hospital waste, which are banned under serial No. 26 of Appendix-A of the Import Policy Order, 2001, which read as (hospital waste) of all kind, "used sewerage pipe and used chemical container". He further contended that the used and worn out bed sheets and pillow covers are not defined in the list retrieved from internet about the description of waste and as such these cannot be termed or bracketed with the hospital waste through any stretch of imagination/dictionary meaning, therefore the formed opinion is without any substance and based on mala fide and as such of no legal effect. It is also worth stating that bed sheets and pillow covers are never destroyed by any hospital instead were laundered for reuse and these are discarded when these are worn out damaged or torn, rendering the opinion of the MCC of Appraisement (East) and respondent without any substance and nullity to the definition of (hospital waste) and the imported goods are not hospital waste which attracts Serial No. 26 of Appendix A to the Import Policy Order 2013, instead the goods imported by the appellant fall under the ambit of Appendix-C containing "list of items not importable in used/second hand condition". The said Appendix contains no restriction on the goods imported by the appellant falling under PCT 6309.0000 rendering the formed opinion being absurd without any substance and of no legal effect, hence void and ab-initio. The consultant further contended that the appellant imported similar goods in the past, which had been allowed clearance by the respondent without hitch and hindrance and without recourse to the adjudication proceeding by the respondent Collectorate, in support of his stance the appellant annexed respective import documents corresponding to GD's No. KCSI-HC-106158-07022013 and KCSI-HC-160258-19062013. The respondent is bound to adhere to its own precedent and deviation to that is not allowed as held in reported judgment PLD 1977 Lahore 1392 Nazir Ahmed Tajdin v Deputy Collector of Customs, Lahore and 2 others respondent, while allowing the petition No. 585 of 1977 on 23-7-1977 that "Custom Authorities are supposed to adhere to their own precedent in administering taxing Statute".

9. The respondent has not filed any counter objection in compliance of subsection (4) of Section 194-A of the Customs Act, 1969. In spite of that the representative of the respondent argued and supported the impugned Order-in-Appeal.

10. Arguments heard, record perused.

11. After going through the arguments extended by both the parties as well as the available record of the case, it has been observed that the question of jurisdiction and application of Section 32(1) and (2) as allegedly attributed in the present case, also the issue of declaration about the seized consignment whether it contains the hospital waste or otherwise. On all issues the appellant exhausted himself and in report referred the decisions/judgments passed by the Superior Courts which were taken on record. Although the respondent has not filed any counter objections, but on the contrary he supported the observations given by the adjudicating authority during the hierarchy of the Customs. Being the custodian of law it is responsibility of the Court to thrash out the relevant controversy as raised by the Department and the appellant's stance for dispensation of justice. Before touching the other aspects of the case, I prefer to dealt with the controversy caused about the subject consignment for its detention and seizure. The appellant declared description of the goods as used and worn second hand white sheet rags. First examination of the consignment report shows that, the used hospital bed spreads (bed sheet) and pillow covers of white colour (some of which printed health care services). During the proceedings of the case the subject consignment was re-examined on 1-1-2014, after physical examination following goods were found: Description: old and used white covering sheets and pillow covers packed in bales. Health care services printed on some sheets but these packed in used clothing bales. After the comparative analysis of both the examination reports, it is evidently clear that the word "waste" was never been mentioned in both examination reports but due to reasons better known to the concerned officials the detail description and quantity to distinguish the sheets printed with mark "hospital care services" has not been described nor identified. At the same time, on the basis of said printing, the Department had declared the whole consignment as hospital waste, which reflected the transgrational and derogatory act on part of the seizing agency. During the hierarchy of the Customs that very aspect was never been dealt with and the orders passed, without the application of judicious mind, and are not speaking orders, against the mandate of Section 24-A of the General Clauses Act, 1897. Merely on the basis of the printing of "hospital care services" on some of the old and used bed sheets and pillow covers, this least rendered the goods in question as hospital waste. For determination the category and declaration thereon as waste (waste of any consignment) are required to maintain the criteria described by the BASAL Action Network (BAN) and European Environmental Bureau (EEB). Prescribed European Union Waste Shipment Regulations were also not taken into consideration at the time of passing the impugned order. Apart from the said regulations, whether the subject consignment contains the hospital waste as alleged by the seizing agency, it is the sole responsibility of the Department thereupon to establish the allegations through substantive evidence in proof thereof. The record of the case evidently reflected the fact that no other standards were initiated or adopted by the seizing agency except relying on the examination report, where some of the sheets with printing of "health care services" were found. The terms and qualifications mentioned in the Serial No.26 of the Appendix A of Import Policy Order, 2013, are categorically defined as hospital waste of all kinds, used sewerage pipes and used chemical containers are banned items and falls in negative list and without distinguishing the same, and in absence of any iota of evidence, the observations made during the hierarchy of the Customs, are not tangible under such circumstances. Said Appendix contains no restriction on the goods imported by the appellant which fall under PCT Heading 6309.000, rendering the firm opinion being absurd without any substance and of no legal effect. Being a regular importer the same type/category of goods were imported and declared by the appellant, previous to this consignment, said evidence corresponding to GDs No.KCSI-HC-106158-07022013 and KCSI-HC-160258-19062013 are placed on record file, in presence of such evidence, the respondent is bound to adhere to its own practice, denial to that is questionable under the aforesaid circumstance. In this case, examination report does not qualify the standard of admissibility nor establish any mis-statement or false statement extended or declared by the appellant in the Goods Declaration, that is the apprehension caused and created by the seizing agency/respondent based on presumptions and assumptions and not based on any substantive evidence, as such does not have any warrant of law to be considered as admissible evidence to correspond with the alleged offence.

12. 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 misuse of authority vested in public functionary. No room was available for such illegal, void order 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 were obviously declared illegal and arbitrary, it became perverse finding of fact which is violative from the established principle of appreciation of evidence and is not sustainable in law. Legal principle is that, every judicial or quasi-judicial findings should be based on reasons containing the justification for the finding in the order. The Adjudication order passed in this case is in violation of basic principle of law and without following the mandatory requirement of Section 24A of the General Clauses Act. The said position is also fortified by the judgments of Superior Courts reported as 2007 PTD 2500, 2004 PTD 1973, 2003 PTD 777, 2003 PTD (Trib.) 2369, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, 1984 SCMR 1014.

13. Coming to the point of jurisdiction, it is important to observe here that the powers vested to the Customs officers or executive Collectorate under Section 179 of the Customs Act, 1969, has not withdrawn through Notification S.R.O. 886(I)/2012 dated 18-7-2012. According to para (d) of sub-para (3) of the Notification the cases involving the technical violation of import or export restriction without the involvement of any evasion of duty and taxes shall not be adjudicated by the adjudicating officer of Collectorate of Customs (Adjudication). In present case the dispute of evasion of duty and taxes is not the issue, in spite of that, the section 32(1) & (2) were attributed against the appellant. It is evident from the contents of the show cause notice that there was no revenue loss by virtue of the alleged mis-declaration, as such the subject sections could not be invoked. Section 32(1) & (2) are not to be read in isolation instead any conjunction with subsection (2) or subsection (3). The appellant has not submitted any forged/false documents/declaration as evident from the show cause notice and the judgments referred in this regard by the appellant during the proceedings of the case, particularly, the judgment by their Lordship Justice Rana Bhagwan Das and Justice Syed Saeed Ashad reported in 2007 PTD 2215 observes as under:--

"Provision of S.32(1) of Customs Act, 1969, would be attracted only when a mis-declaration or mis-statement was made with a view to obtain illegal gain by evasion of payment of customs duty and other taxes or by causing loss to Government revenue---Mis-declaration alleged to have been made in the case, was neither for evasion of payment of customs duty to other taxes/charges nor the same has caused any financial loss to the Government---Petition for leave to appeal by the Authorities being without merit, was dismissed."

14. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law, the special provision shall prevails (reference is invited to the case of Lt. General (Retd) Shah Rafi Alam v. Lahore Race Club (2004 CLD 373). The power of adjudication, as already observed is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i.e. that the courts can supply construction with a view to avoid 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 umpteenth judgments on the point that where there is a conflict between two provisions 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 "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 SC 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 Saleh and others v. Messrs United Grain and Food Agencies (PLD 1964 SC 97). The Constitution jurisdiction can thus be exercised 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".

15. 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 by the Superior Courts of Pakistan, in the case of E.A. Avans reported as PLD 1964 SC 536 it is held that "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 their judgment reported as 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." The super structure built on such foundation no matter how strong, it is has to fall, as held in reported judgments PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.

16. By getting the strength from the judgments passed by the Superior Courts referred above and in conformity of aforesaid observations made thereon, I am of the considered opinion that the proceedings conducted during the hierarchy of the Customs in the subject case are infested with patent deficiencies and are in violations of statutory requirements, hereby declared null and void, ab initio, impugned order are, therefore, set aside and appeal is allowed as prayed with no order as to cost.

17. Order passed and announced accordingly.

RR/71/Tax(Trib.)Appeal accepted.