QAZI CNG FILLING STATION, GUJRAT VS DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATIONS-FBR, KARACHI, 2016 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 107 (2014)

2016 P T D (Trib.) 107

[Customs Appellate Trbiunal]

Before Adnan Ahmed Member (Judicial-II)

Messrs QAZI CNG FILLING STATION, GUJRAT and another

Versus

DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATIONS-FBR, KARACH and 2 others

Customs Appeals Nos.K-3138 and 3139 of 2013, decided on 30/06/2014.

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

----S.194-B(2)---Rectification of mistake---Scope---Error/mistake floating on surface of order was not at all restricted to clerical error or arithmetical mistake instead all types of errors whether factual/legal or substantive or procedural fell within ambit of "apparent mistake floating on surface of an order" and could be rectified within one year from the date of order by Tribunal being final facts finding forum.

Case Law referred.

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

----Ss. 79, 80, 83, 195, 16 & 32 ---- Declaration and assessment of home consumption warehousing---Section 79 of Customs Act, 1969 was a machinery section and defined procedure for filing of goods declaration by importer---Section 80 of Customs Act, 1969 empowered Customs officer to complete assessment order against imported goods, after levy of duty and taxes---After such payment, Principal Appraiser would pass a clearance order under S. 83 of Customs Act, 1969---Board or Collector was empowered to re-open the assessment order passed under S. 80 of Customs Act, 1969 in exercise of power conferred upon under S. 195 of Customs Act, 1969---Held, that Board had not delegated powers to department under Ss. 16, 32, 79, 80, 83 &S. 195 of Customs Act, 1969---Department had no power under said sections to lay hands on consignment which had been lawfully released by Competent officer under Ss. 80 & 83 of Customs Act, 1969 after passing of valid and legal assessment/clearance order.

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

----Ss. 2(a) & 80---SRO No. 371(I)/2002, dated 15-6-2002---Adjudicating officer---Scope---Department's plea was that consignment was not cleared as the same was not delivered and still was within reach of Department---Validity---Held, that consignment had undergone procedure of clearance by an appropriate officer in capacity of adjudicating authority defined in S. 2(a) of Customs Act, 1969 in exercise of powers vested upon him under S. 80 of Customs Act, 1969 and SRO No. 371(I)/2002, dated 15-6-2002--- After clearance of goods, department became functus officio and delivery of goods had to be effect by Port Authority/Terminal Handler and not by Department.

Case law referred.

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

----S. 179(3)---Order-in-original---Limitation---Show-cause notice was issued to importer on 6-2-2013---Order under S. 179(3) of Customs Act, 1969 was mandated to be passed within 120 days i.e. 6-6-2013 or within further extended period of 60 days (prior to extension of initial period of 120 days with reason to be recorded for expiry)---No extension was accorded by Department and extension granted vide order by Department was not based on mandated requirement of law---Extension granted was in omni bus manner and failed the test of judicial scrutiny---Order passed by department was barred by 55 days, hence, without power/jurisdiction and enforceable under law.

Case law referred.

(e) Notification---

----Rescinding of notification---Mode---Notification could be rescinded/amended through a notification only and not through any communication---In absence of amendment of Notification, clarification issued by department could only be termed as opinion and it would not at all amend the notification.

Case law referred.

(f) Interpretation of statutes---

----Notification---Scope---No other meaning could be given to expression of notification being in consonance of its spirit---Nothing could be added or subtracted to suit ones opinion as that would amount to redundancy which had to be avoided.

Case law referred.

(g) Constitution of Pakistan---

----Art. 201---"Order of High Court was binding on all courts subordinate to it and quasi-judicial forums, under Art. 201 of the Constitution"---Any deviation to the said expression would tantamount to defiance beside contempt of court.

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

----S.194-C---Procedure of Appellate Tribunal---Order of Bench of Tribunal was binding on other Benches of the Tribunal and no deviation was permitted.

Case to referred.

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

----Ss. 80, 83 & 198 ---- Assessment of duty---Clearing agent only provide service to importer on nominal charges and assistance to department in conducting examination under S. 198 of Customs Act, 1969 and on basis of which department passes assessment/clearance order under Ss. 80 & 83 of Customs Act, 1969---Department was to assess goods for levy of duty and taxes under S. 80 of Customs Act, 1969 which include correctness of particular imports including declaration---Importability of goods fell within ambit of "declaration/ assessment" and clearing agent was not an entity under S. 80 of Customs Act, 1969.

Case law referred.

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

----S. 24A---Speaking Order---Essentials---Order which did not contain rebuttal on ground advanced and judgments relied upon by appellant and also were not containing substantial reasons and did not show that these were passed on objective consideration would be treated as illegal, void and arbitrary and result of misuse of authority vested in public functionary---No room was available for such illegal, void, arbitrary and perverse order---Perverse finding of fact was violative of principles of appreciation of evidence and as such not sustainable in law---Every judicial or quasi-judicial finding should be based on reasons containing justification for finding in order---Order being in violation of basic principles of good governance and mandatory requirements of S. 24A of General Clauses Act, 1897, , appeal was allowed in circumstances.

Obayd Mirza and Nadeem Ahmed Mirza (Consultant) for Appellants.

Saud Ahmed Khan, I/O (for Respondent No.1).

M. Farooq Khan, Appraiser (for Respondent No.2).

Dates of hearing: 6th, 22nd, 29th and 30th April, 2014.

ORDER

ADNAN AHMED, MEMBER (JUDICIAL-II).---Through this common order, I intend to dispose off Rectification Applications against the order dated 16.12.2013 in Customs Appeal No. K-3138/2013 & K-3139/2012 dated 16-12.2013 filed under section 194-B(2) of the Customs Act, 1969 of the Tribunal against Order-in-Appeal Nos.8350 & 8351 dated 2.12.2013 by the both parties, wherein respondent No.3 maintained Order-in-Original No.8/2013 dated 1.8.2013 passed by respondent No.2, based on similar facts.

2. Brief, facts of the case as stated in the impugned order are that the appellant is a CNG Filling Station and operate by the name and Style of M/s. Qazi CNG Filling Station 2, Khastra No. 442, Near Chanab Toll Plaza, Gujrat, during the course of his business activities established a letter of credit bearing No. ILCSGF0032/7065 dated 08.04.2012 favoring Rama Cylinder (Pvt.) Ltd., Mumbai, India for import of 200 empty high pressure seamless steel cylinder for CNG Storage with valves and bull-nose connectors @ US$. 200/C&F Karachi against proforma Invoice No. QCFS/RCL/001/12-13 (REV-2) to his clearing agent M/s. Shameel Enterprises, Karachi for filing good declaration under the regime of One Customs under Section 79(1) of the Customs Act, 1969 through module of "One Customs". Who accordingly transmitted the same to PRAL which accepted the declaration and allotted GD No.KAPR-HC-125916-11052012. The GD was referred for examination under section 198 of the Customs Act, 1969, the officer who conducted the examination, found the goods as per declaration, consequent to which assessment was completed by the assessing officer under section 80 of the Customs Act, 1969, after payment of leviable duty and taxes the Principal Appraiser allowed the release of the goods under section 83 of the Customs Act, 1969. When the appellant clearing agent approached for delivery, he was confronted with the facts that the officer of respondent No. 1 has put an hold on the pretext that imported CNG Cylinder for storage in CNG Station are banned under S.R.O. 84(I)/2012 dated 01.12.2012. On the strength of the said opinion, they framed contravention report and forwarded to respondent No. 2.

3. The respondent No. 2 on the strength of contravention report issued show cause notice dated 06.02.2013 to the appellant, stating inter-alia that he in collusion with his clearing agent are involved in import of CNG Cylinder of PCT heading 7311.0010 from India despite imposition of banned on imposed thereof vide S.R.O. 84(I)/2012 dated 01.02.2012 and tried to clear that through good declaration No. KAPR-HC-125916 dated 11.05.2012. This act amounts to violation of the respective Section of Import and Export (Control) Act, 1950 Section 32 of the Customs Act, 1969 and notification dated 01.02.2012 , resultant, the appellant his clearing agent and freight forwarder are called upon to show cause as to why penal action should not be taken against them for violation of above mentioned provision of law, which was replied by the appellant which failed to impressed the respondent and he passed order dated 01.08.2013 ordering confiscation of the goods and imposing penalty of Rs.500,000.00 , paras 8 and 9 are relevant and produced here-in-below:

"8. Since the stipulated period of 120 days for finalizing the adjudication proceedings as mentioned vide para 179(3) of the Customs Act, 1969 was going to expire 06.06.2013, the competent authority in exercise of the power vested under section 179(3) of the Customs Act, 1969 granted extension of 60 days vide order dated 18.05.2013."

"9: I have gone through the record of the case and given due consideration to the submission made by the respondents and the departmental representative. It is established beyond any doubt that the above mentioned consignment of CNG cylinders were actually brought in the country during May, 2012 i.e. 5 months after the van imported by the Federal Government on the import of CNG cylinder and conversion kits. The joint examination conducted with the Directorate General of Intelligence and Investigation also revealed that the imported goods were actually manufactured in March 2012. Since, the L/C bearing No. II.CSGF0032/07065 dated 18.04.2012 and the bill of lading is issued on 02.05.2012, neither of the two documents is issued prior the cut-off date of 15.123.2011(sic). Therefore, it is established beyond any shadow doubt that the importers deliberately and brazenly imported the impugned consignment despite the moitorium placed by the Federal Government in full connivance of the clearing agent and the freight forwarder, who appears to have put caution to the wind and assisted in the import/ clearance of banned item without exercising due diligence for the aforesaid , reason and provisions of law mentioned in the show cause, I hereby order for outright confiscation of the impugned goods for being imported in violation of the prevalent law. For their role in circumventing the policy of the same and hoodwinking customs, the importer (M/s. Qazi CNG Filling Station-2, Gujrat), the clearing agent (M/s. Shameel Enterprises CHAL No. 20980 and the freight forwarders M/s. International Cargo Management (Pvt) Ltd, Karachi are also directed to pay a personal penalty of Rs. 500,000.00 each within ten days of the issuance of this notice, failing to which recovery proceeding shall be initiated against all above named respondent under section 202 of the Customs Act, 1969 read with Customs (Recovery)/(Licensing) Rules 2001, which shall also include suspension of the NTN/License of all the three respondent for future transaction till the liability is recovered."

4. The order was challenged before Respondent No.3 who also vide his order dated 02.12.2013 rejected the appeal by observing in paras 7 to 9 that:--

"7. I have very consciously examined the bona-fide of the case. The moot point in this is that whether CNG Storage Cylinders attracts the mischief of S.R.O. 84(I)/2012 dated 01.02.2012 or otherwise in this regard it cannot be denied that the learned counsel for the appellants has put up a well structured memo. of Appeal. It is also apparent that he has not only challenged the legality of the contravention made in this case but has also stressed that the issuance of show cause notice and the Order-in-Original are also without any legal foundation. The learned counsel has also tried to convince this forum that the import CNG Cylinders do not attract the mischief of S.R.O. 84(I)/2012 dated 01.02.2012. He firmly hold the opinion that the said notification was issued by the Ministry of Commerce only to ban the imports of the CNG Storage Cylinders and Kits for used in vehicles and neither there is any mention of banning the CNG Cylinders for used in CNG Stations in the notification. He has given citation of various judgments of the Superior Courts to stress his aforesaid view point particularly a judgment of Hon'ble Sindh High Court given in the favour of a party who had imported CNG Cylinders.

8. On the other-side the respondent's intention are equally clear they have focused on the moot point involved in the case and astutely challenged the respondent view point by stating that the notification S.R.O. 84(I)/2012 dated 01.02.2012 was issued by the Ministry of Commerce (MOC), however, a plain reading of the notification makes it crystal clear that the ban applies to all kinds of CNG Cylinders, including CNG Storage Cylinders in any case the only exemption made by the Ministry is quite evident i.e. further more the aforesaid ban shall not apply on the CNG fitted public transport vehicles i.e. buses and vans." The FBR totally endorse the respondent said view and has explicitly stated in its clarification dated 13.08.2013 that "As confirmed by Ministry of Petroleum and natural resources the ban imposed vide S.R.O. 84(I)/2012 dated 01.02.2012 shall also be applied to CNG Storage cylinders that are meant for installation at CNG Stations.". As regards the judgment of the Hon'ble High Court of Sindh on the issue the department/respondent have stated that:--

"The judgment 05-03-2013 of the Hon'ble High Court of Sindh passed in C.P. No. D-4320 filed by Pakistan CNG Station is disputed and has been challenged by the department through filing of C.P.L.A. No. 228-K/2013 which is pending before the Hon'ble Supreme Court of Pakistan for hearing and final decision."

"9. Going through the argument raised by the rivals I am of the opinion that the stance adopted by the respondent appears to be more rational since evidently the Government's stance regarding the consumption of CNG by the gas Station is very clear to all concerned as has already been announced that stringent measures would be adopted to limit the use of CNG in the winter months. Thus , logically if the CNG cylinders and its kit for vehicles are banned then why CNG Storage cylinder for used in the CNG Stations should be allowed? Accordingly, in my view the said stance taken by the MO Commerce the FBR and the MO Petroleum natural Resources reflects the aforesaid decision of the Federal Government. Therefore, the Order-in-Original No.8/2013 dated 01.08.2013 is upheld and the appeal is not accepted."

"10. This order shall apply mutatis mutandis to another appeal bearing No. Cus/5598/2013/DIT filed by the M/s. Shameel Enterprises involving the same fact, circumstances and points of law. "

5. The appellant M/s. Qazi CNG has challenged the orders of the forum below by way of Appeal No. 3138/2013. Mr. Obayd Mirza/ Nadeem Ahmed Mirza (Advocates/Consultants) on behalf of the appellant and reiterated the arguments incorporated in the memo of the appeal and emphasized that:--

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

(ii) That it is of great importance for the appellant to state that the show cause notice in the instant case has been issued by respondent No. 2 on the basis of absurd opinion formed by the official of respondent No. 1, instead of examining himself the facts of the case and provision of the Act and Rules and Regulation, uninfluenced and independently, which he failed to exercise as evident that the show cause notice and order-in-original are without power/jurisdiction and based on inapt interpretation of the statute, further stood validated from the contents of show cause notice, which is silent in regards to collusion or connivance of the appellant. This lapse resulted in grave injustice to appellant and stood validated from the reported judgment 2004 PTD 369 issued by the High Court of Sindh in the case of Messrs Zeb Traders v. Federation of Pakistan. Their lordship of the High Court held that:

"The proceeding before Adjudicating Officer, under the Customs Act, 1969 are in the nature of quasi judicial proceedings and issuance of notice under section 180 of the Customs Act, is very important documents. The decision to issue show cause notice is to be taken by the Collector, Adjudication, by application of independent mind and not merely signing the draft show cause notice submitted by the investigation agency separate from the Adjudication Department and each category of officers are required to perform their respective functions/duties under the law. The practice to submit draft show cause notice by the Director General of Intelligence and Investigation to the Collector Adjudication is depreciated."

(iii) That neither the officials of respondent No. 1 are empowered to complete assessment of an imported consignment under Section 80 of the Customs Act, 1969 while laying hands on the matter of assessment under the Notification No. 84(I)/2012 dated 01.02.2012 they tried to complete the assessment under Section 80 of the Customs Act, 1969 as evident from the contravention report received by respondent No. 2, on the strength of which the impugned show cause notice was issued to the appellant is an act of transgression, rendering the contravention report and the impugned show cause notice ab-inito and passed order-in-original ab-inito , null and void on this count also as held by the Hon'ble High Court of Sindh in unreported judgment in C.P's. Nos.D-568/2010 Shakeel Ahmed v. FOP and D-710 to 714/2010 M/s. Jamal Din and others v. FOP and 2 others.

(iv) That the show cause notice in the case of appellant has been issued by the respondent No.2, Inspite of the fact that the amounts of duty and taxes in the instant case are Rs.939,956.00, attracting jurisdiction of Assistant Collector of Customs Under Section 179(1) of the Customs Act, 1969. Nobody is allowed to usurp the powers of their subordinates as held by Superior Judicial Fora in umpteenth reported judgment. The Hon'ble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others and 2009 PTD 1083 held that "Superior authority cannot exercise the power of his subordinates for adjudication purpose ..powers of sub-ordinate exercise by superior authority is held as without jurisdiction beside usurpation".

(v) That as per settled dictum, the authority empowered under the statute has to proceed in the matter instead of respondent No.2 because it is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute, rendering the show cause notice and Order-in-Original as ab-initio and void. The opinion oftenly adopted by the customs official that section 4 of the Customs Act, 1969 empowered the Senior officer to exercise the power of his subordinate, is not valid instead based on inapt interpretation of the statute, if for the sake of arguments the said opinion as valid, it will render the provision of section 179 of the Act as 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 1546). The power of adjudication, as already observed is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i.e. that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL (2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case law on the point that where there is a conflict between two provision of the statutes, the later provision prevails and has to be given precedents (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587 is referred. Their lordship observed as under:--

"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 Saleh & others v. M/s. United Grain and Fooder Agencies PLD 1964 HC 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".

(vi) That while dealing with the powers of adjudication, it is needless to observe, that our Supreme Court has also jealously guarded the same. In Assistant Director v. B.R. Herman Mohata Ltd. PLD 1992 SC 485 a full Bench of Supreme Court was pleased to observe that section 223 of the Customs Act, 1969 could not be employed so as to interfere with the judicial or quasi judicial functionaries. It was clearly observed that the power of the CBR as to prescribed guideline were not relevant for the exercise of judicial function. To similar effect is the judgment of Supreme Court reported as Central Insurance v. CBR 1993 SCMR 1232. In this case the CBR issued direction for the reopening of Income tax Assessment under section 65 of the Income Tax Ordinance, 1979. It was held by the Supreme Court that the CBR did not figure in the hierarchy of the officer provided in the statute for the purpose of assessment and adjudication. On the basis of this it was held that the directions of the CBR to reopen the assessment was without jurisdiction and the adjudication officer was directed to apply its own mind. Reliance is placed on the order of the Tribunal in S.T. Appeal No. 176/2007 M/s. Muller and Phipps Pakistan (Pvt.) Ltd. v. The Collector of Sales Tax Enforcement LTU, Karachi and 2011 PTD (Trib) 2114 Collector of Customs, Peshawar v. Collector of Customs (Appeals) Peshawar and 2011 PTD (Trib.) 2557 Messrs Wawa Garments Industries (Pvt.) Ltd. v. The Additional Collector of Customs, Export, Karachi.

(vii) That it is imperative for the appellant to invite the attention of the Honorable Appellant Tribunal that where order has been made without any powers/jurisdiction, irrespective of the merit of the case, such order are coram non-judice as held by High Court of Sindh in Customs Reference No. 101 and C.M.A No.1281 of 2009 reported as 2010 PTD 465 Collector of Customs, Model Customs Collectorate v. M/s. Kapron Overseas Supplies Co., (Pvt.) Ltd. filed on the question of law that whether passing of order without jurisdiction is a technical defect and does not render the proceeding as ab-inito void . The Hon'ble High Court dismissed the reference while holding that "any transgression of such jurisdiction for not being a technical defect would render entire exercise of authority to be ab-inito, void and illegal", without discussing the merit of the case, which relates to origin of imported goods and the Hon'ble High Court further held that "the exercise of jurisdiction by an authority is a mandatory requirement and its non fulfillment would entail the entire proceeding to be "coram non judice." The said defect render the show cause notice as well as Order-in-Original ab-inito, null and void by virtue of suffer of lack of power/jurisdiction. Hence coram non judice and needs to be strike down.

(viii) That the show cause notice in the appellant case was issued on 06.02.2013 by the respondent No. 2 and an order under the proviso of subsection (3) of Section 179 of the Customs Act, 1969 should had been passed by the respondent No. 2 within 120 days i.e. 06.06.2013 from the date of show cause notice or within a further extended period of 60 days by the Collector of Customs, prior to lapse of initial period of 120 days after serving a notice to the person concerned and thereafter recording reasons for the extension based on "exceptional circumstances" as held by Hon'ble Supreme Court of Pakistan in reported judgment 1993 SCMR 1881 Khalid Mahmood v. Collector of Customs. The extension was granted on 18.05.2013 as evident from para 8 of the order-in-original in omni-bus manner, rendering it of no legal effect, beside it was not based on exceptional circumstances and no recording was made and neither any notice was served on the appellant. Rendering the order-in-original dated 01.08.2013 barred by time by 55 days, hence without power/jurisdiction and not enforceable as held in reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and 2009 PTD 1978, Leo Enterprises v. President of Pakistan and others, 2010 PTD (Trib.) 1010 Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib) 79 Fazal Ellahi v Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.) 1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others.

(ix) That irrespective of the above legal deficiency, it is also erroneous on the part of respondents to term the imported Storage CNG Cylinder as banned under Notification No. S.R.O. 84(I)/2012 dated 01.02.2012 (Exhibit "R"). In fact insertion made by the Ministry of Commerce in para (v) in sub-paragraph (A) after clause "(vii)" read ad follows:

"Import of CNG Cylinders and conversion kits falling under respective PCT heading shall not be importable with immediate effect and under further orders. This banned shall however not applied on CNG Cylinders and conversion kits for whom letter of credit were established prior to 15.12.2011. Furthermore, the aforesaid banned shall not apply on CNG fitted public transport vehicle i.e. buses and vans. "

From careful examination of the said insertion is vividly clear that "the ban was imposed on CNG Cylinder and conversion kits used in motor vehicle only and not on the import of CNG Storage Cylinder used by CNG Stations". In support of his stance, it is appropriate for the appellant to add further for the sake of clarity that no other meaning can be given to the said serial number with the exception of its spirit and nothing can be added or subtracted to suits ones opinion as that amounts to redundancy, which has to be avoided. Even otherwise it is settled rule of interpretation 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 Court and Supreme Court of Pakistan in their reported judgment starting from Abbassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463 to M/s. Fazal Ellah v. Additional Collector of Customs, 2009 PTD 1167. Even otherwise "if there are two or more interpretation of our provision pertaining to levy of tax on account of anomaly/ambiguity the one favourable to tax payer has to be adopted by the court" as per judgment reported as 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 901, 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 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.

(x) Notwithstanding with the rule of interpretation of the statute as submitted above, which abundantly support the stance of the appellant, in similar case the Hon'ble High Court of Sindh endorsed the interpretation of the notification as opined by the appellant while disposing of Constitution Petition D.No. 4320/ 2012 M/s. Pak CNG Station v. Directorate General of Intelligence and Investigations-FBR and 6 others, while observing that:

"We conclude that the ban or prohibition imposed by clause (viii) added to paragraph 5(A) of the Import Policy Order, 2009 does not cover storage cylinder used in CNG Station. Such cylinder may therefore be imported in accordance with law.

Accordingly, this petition is allowed the petitioner is entitled to import the storage cylinder to be used in CNG stations and the container held up is to be released after being processed and cleared in accordance with law. Furthermore, the show cause notice dated 19.11.2012 issued against the petitioner has been issued on a misinterpretation and misapplication of law. Hence, this show cause notice is declared to be of no legal effect and quashed , and all proceedings in connection therewith stand terminated with immediate effect."

(xi) That the opinion formed by the respondent in para 9 of the order is nullity to the order of the High Court in C.P. No. 4320/2012 wherein the opinion was laid to rest, verbatim of the same is reproduced here-in-below:

"We have heard learned counsel as above and consider the record with their assistance. The insertion of clause (viii) in the Import Policy Order, 2009 by SRO 84(I)/2012 in terms as noted above brought about a change in the law, since the Import Policy Order has the force of law. The proper interpretation of law is peculiarly the domain of the Courts and hence the proper interpretation, effect and scope of clause (viii) is ultimately a matter for judicial consideration and decision. In our view it is clear that the storage cylinders use to store CNG at the CNG Stations are different from the cylinder that are installed in motor vehicle that run on CNG. This is clear from the material placed on record and in terms of SRO 575(I)/2006 as noted by FBR itself. When clause (viii) as inserted by SRO 84(I)/2012, is examined , it is found to prohibit the importation of two types of goods: "CNG Cylinders" & "Conversion Kits". There is no doubt that the later apply only in relation to motor vehicles and indeed , such kits are also separately listed in SRO 575(I)/2006 as well. In our view when clause (viii) is read as a whole the reference to CNG Cylinders therein is to be cylinder that are fitted in motor vehicle and not to the storage cylinder that are to be installed in CNG Stations. This is brought out not merely by reference to "conversion kits" therein, but also the concluding portion thereof which refer to "CNG Fitted Public Transport Vehicle". The sort of cylinders referred to here can obviously only be the sort fitted in motor vehicle. Furthermore, even the view expressed by Ministry of Petroleum and Natural Resources , appeared really speaking, to be limited to Motor Vehicle, it is also to be noted that CNG Station are otherwise within a well established regulatory frame work and the simplest way to stop growth here is not to license new CNG Station at all. The ban on storage cylinders used in such station is neither the natural nor the most effective way of dealing with this issue. As opposed to this, the "conversion" of motor vehicle to CNG use is not as such subject to regulatory frame work. Any person can lawfully get his vehicle converted to such used. If therefore any increase in (i.e., "growth of) such usage is to be discouraged, the prohibition on import of conversion kit and cylinder used in motor vehicle is perfectly understandable. This also indicate that the clause (viii) is intended to apply only in relation to the cylinder fitted in motor vehicle and not otherwise".

(xii) That in accordance with the order issued by the Hon'ble High Court of Sindh, the Customs Appellate Tribunal allowed similar appeals bearing Nos. 60 to 65 of M/s. Shabbir Ahmed son of Bashir Ahmed v. Additional Collector of Customs, MCC of PaCCS,

(xiii) The order passed by the respondents Nos. 2 & 3 shows that these are not proper order with the application of judicial mind and provision of the Act. Instead it is 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 fact that no rule has been attributed to the appellant and neither established as per settled principle embodied in Articles 117 & 121 of Qanoon-e-Shahadat by the respondent. Nor rebuttle on the submission made by the appellant was given in the order. This confirms that the order passed was not on judicious consideration instead on personal and biased opinion, rendering it illegal void and arbitrary and a result of misuse of authority vested in him. No room was available for such illegal, void and arbitrary 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 arbitrary 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 Assessment/Appellate orders are 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.

(xiv) That the respondent No. 3 considers himself above to the provision of the Customs Act/Rules and judgments of the Judicial Fora and invariably flout those despite being the creatures of statute/binding upon him under Articles 189 and 205 of the Constitution of Islamic Republic of Pakistan and always passed orders on the basis of his whims and wishes and on consideration other than judicial one, resultant, a stringent stricture is need to be passed by the Hon'ble Tribunal against him as held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh & others.

(xv) The appellant craves his right to add any fresh grounds at the time of hearing beside placing any valid incriminating evidence/ documents.

6. Whereas, for M/s. Shameel Enterprises, Karachi in Appeal No. 3139/2013 argued in line with the arguments referred in para 4 (i) to (viii), (xiii) above with the exception of the following:--

(a) That as regards to collusion for obtaining clearance of the CNG Storage Cylinder imported by M/s. Qazi CNG Filling Station , Gujrat, is also without any substance by virtue of the fact that appellant filed the goods declaration on the basis of the import documents supplied by M/s. Qazi CNG Filling Station, Gujrat, and those were annexed with the GD and those formed part and parcel of the declaration given in GD in terms of definition given in Section 2(kka) of the Customs Act, 1969 of the appellant in addition to the declaration transmitted online under Section 79(1) of the Customs Act, 1969 and this proposition of law stood validated from the reported judgment 2011 PTD (Trib.) 22 & 2011 PTD (Trib.) 987. For ease Section 2(kka) is reproduced here-in-below:

[2{kka} "documents means a goods declaration, application for claim of refund, duty drawback or repayment of duty, import or export general manifest passenger manifest, bill of lading, airway bill, commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to customs, whether or not signed or initialed or otherwise authenticated, and also includes:-

(i) any form of writing on material, data or information recorded, transmitted, or stored by means of a tape recorder, computer or any other device, and material subsequently derived from information so recorded, transmitted or stored;

(ii) a label, marking or other form of writing that identifies anything of which it forms part or to which it is attached by any means;

(iii) a book, map, plan, graph or drawing, and

(iv) a photograph, film , negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment of being reproduced; and)]

(b) That the appellant in the capacity of clearing agent has no part to play. The entire transaction is between exporter/importer and the customs. The clearing agent only provides services to the exporter/importer on very nominal charges and extends co-operation to the customs officials for carrying out their job i.e. Examining the consignment in terms of Sections 198 and 80 of the Customs Act, 1969 and the rules and regulation framed there-under. To be most precise, a clearing agent act as a post office or transit station between these two.

(c) That in support of the above submission. It is felt appropriate to place reliance on the judgment of Customs, Excise and Sales Tax Appellate Tribunal, Karachi in a similar nature of cases pertaining to M/s. Shoaib Enterprises, Karachi and Sakro Cor-poration, Karachi, wherein in order-in-appeals Nos. K-1833/01 dated 19.01.2002 and K-538/2003 (K-2) dated 25.10.2003, it has been held that provisions of section 209 of the Customs Act, 1969 provide immunity and limited liability against the agent and an agent cannot be charged for mis-declaration under section 32 of the Customs Act, 1969 if he filed documents under the provisions of Customs Act, 1969 in accordance with the export documents and further held that the action taken by the customs of charging agent and thereafter leveling penalty without any fault or default on his part is not only unfair but also illegal. The Lahore High Court in the case of M/s Ports Ways Custom House Agent and another's v. Collector of Customs and another's reported at 2002 YLR 2651 held that:--

The imposition of penalty on the Clearing Agent/appellant No.1 was all the more unjustified. To hold the clearing agent liable for the act of commissions and omissions on the part of the importer will require a clear finding based upon legally acceptable evidence of his being an active and conscious party to the manipulation. In normal course of his business, a Clearing Agent, files a bill based upon the document and information provided by the importer. He cannot be presumed to be a privy to any illegal arrangement, which the importer may have coined or had intended in his mind. For that purpose some evidence of his direct involvement will have to be brought on record. Particularly when it is not shown that the Clearing Agent was directly or indirectly a beneficiary of invasion of taxes. In the present case no attempt whatsoever was ever made to bring home guilt to the Clearing Agent. The appeal is accepted to the extend of Clearing Agent.

(d) The respondent No. 3 passed the order-in-Appeal in very wanton and haphazard manner in the case of appellant, which stood proved from the fact that he applied the order passed in the case of M/s. Qazi CNG Filling Station, Gujrat mutatis mutandis on the case of appellant, which have different facts due to his duties prescribed in the Licensing Rules, facts and grounds. Application of an order on the case of other person is barred under law as per ratio settled by the Superior Courts of Pakistan that every case has its peculiar facts merit, demerit and arguments, an adjudicating authority has to consider those and thereafter passed an order as he deems fit. Reliance is placed on reported judgment 2011 PTD 2849, 2011 PTD (Trib.) 424. This legal lacuna alone is enough for declaring the orders nullity to law, and as such of no legal effect.

7. The applicants advocate/consultant on the date of hearing dated 06.01.2014, 09.01.2014 & 15.01.2014 further emphasized and placed on record relied upon judgments:--

(i) That irrespective of the above illegality, it is imperative for the appellant to state further that the respondent No. 2 has no power under section 179 of the Customs Act, 1969 by virtue of no involvement of duty and taxes and the case in question fall within the ambit of Principal Appraiser as evident from Notification SRO No.371(I)/2002 dated 15.06.2002. read with Section 2(a)ibid. Meaning thereby that he is the only authority to proceed in the matter instead of respondent No. 2 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 SRO 371(I)/2002 dated 15.06.2002 respondent figure nowhere, rendering the show cause notice as well as the order-in-original as ab-initio and void.

8. The Intelligence Officer submitted comments dated 06.01.2014 stating inter-alia that:--

(i) The contents of Memo of Appeal which are contrary to the facts of the case are vehemently denied.

(ii) The Federal Government in exercise of powers conferred by subsection (1) of Section 3 of Import and Export (Control) Act, 1950 (XXXIX) 1950) through amendment in Import Policy Order, 2009, imposed ban on import of CNG Cylinders and conversion kit falling under respective PCT heading vide S.R.O. 84(I)/2012 dated 01.02.2012. (Annexure "R" of the Memo of Appeal) . A new clause (viii) in paragraph 5 and sub-paragraph (A) was inserted, which is reproduced below:

"viii Import of CNG Cylinder and Conversion Kit falling under respective PCT heading shall not be importable with immediate effect and until further orders. This ban shall however not apply on CNG Cylinders and conversion kits for whom letters of credit were established prior to 15.12.2011. Furthermore , the aforesaid ban shall not apply on CNG fitted public transport vehicles i.e. buses and vans."

And ..unquote.

(iii) Subsequently, it was clarified by the Ministry of commerce vide in Office Memorandum No.1(1)2009-SO(TP)PT dated 18.05.2012 that the ban shall not apply on imports already made against I.Cs or B/Ls established or filed prior to the cut-off date of 15.12.2011.

(iv) As per above provision the ban is meant for all types of CNG cylinders and conversion kits. However it was contended by some importers that ban was not meant for CNG storage cylinders for installation at CNG Stations. The clearance of consignment of appellant which was shipped arrived/imported in May 2012, after imposition of ban, was withheld and issue was referred to Board by MCC (Appraisement) , Customs House Karachi for categorical clarification in this regard vide Collectorate's letter No. SI/MISC/106/2012-IV dated 28.05.2012. the Board vide its letter C.No. 3(9) Mach/ 97/111443 dated 13.08.2012 (Annexure A), confirmed that "As confirmed by Ministry of Petroleum and Natural Resources, the ban imposed vide SRO 84(I)/2012 dated 01.02.2012 shall also applied to CNG storage cylinders that are meant for installation at CNG station."

(v) In terms of Section 223 of the Customs Act, 1969, the Board's direction instructions/clarification are binding on the sub-ordinate departments to implement the same.

(vi) That notification SRO 84(I)/2012 dated 01.02.2012 covers all types of CNG Cylinders and conversion kits. Hence same are banned for imports.

(vii) The judgment 05.03.2013 of the Hon'ble High Court of Sindh passed in CP No. D 4320 filed by M/s. Pakistan CNG Stations is disputed and has been challenged by the department through filing of CPLA No. 228-K/2013, which is pending before the Hon'ble Supreme Court of Pakistan for hearing and final decision.

(viii) In view of above, it is submitted that impugned consignment has been imported in violation of ban on CNG Cylinders, has therefore been out-rightly confiscated vide Order-in-Original No. 8 of 2013 dated 01.08.2013, passed by the respondent No. 2 which has been maintained by the respondent No. 3 vide Order-in-Appeal Nos. K-8350 to 8351 dated 02.12.2013, in accordance with law.

GROUNDS

(a) That contents of para 1 of the grounds of appeal are mis-leading, mis-conceived and misinterpretation of law by the appellant. In the instant para the appellant has contended that the respondent No. 1, in terms of under Notification No. 486(I)/2007 is not empowered to intercept and seized the consignment and all the proceedings are unwarranted. To remove such legal misconception it is submitted that the Directorate General was established in 1958 with the approval of President of Pakistan as an attached department of Revenue Division. In this connection the Central Board of Revenue (now FBR) and Ministry of Finance (Revenue Division) issued Notifications Nos. 55-C 56-C, 57-C and 58-C all dated 07.10.1958 , whereby it appointed the officers. The Directorate was established to perform functions and duties including enforcement duties and to carry out Preventive Operations throughout the country related to smuggling evasion of Federal Taxes through clandestine removal of dutiable goods mis-declaration, valuation frauds, fraudulent claims of refund and rebate etc, and to detect and investigate cases cognizable under the Prevention of Smuggling Act, 1977. In this regard for the smooth performance of said duties the Central Board of Revenue (now FBR) in exercise of the powers conferred under sections 3 and 4 of the Customs Act, 1969 vide amending SRO Notification No. 413(I)73 dated 21.03.1973 subsequently suspended vide SRO 39(I)/2005 dated 06.11.2005 further superseded vide SRO 486(I)/2007 dated 09.06.2007 authorized the Directorate and its officers to exercise the following power and discharge the duties of officers of customs within the area of their respective jurisdiction.

"Sections 17, 26, 48, 60, 62, 91,92,111,112,139,157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1) (3) and (4), 169, 171, 174, 175, 185-F, 186, 193, 194-A, 196, 197, 198, 199, 201 and 202 of the Customs Act, 1969 and to invoke all the relevant provisions of the said Act and rules made there under if so warranted.

From the bare reading of above provisions, it is evident that a complete legal mechanism has been provided for the officers of Director to perform the duties of officers of customs in and outside the port areas declared under sections 9 and 10 of the Customs Act, 1969. It is relevant to add here that during the performance of their duties as explained above, in case if any goods are found liable for confiscation, then the provisions of sections 168(I) (3) (4) and 161 of the Customs Act, 1969 become operative. Upon completion of investigation reports involving the relevant provisions of Act and rules made there under are forwarded to competent courts having jurisdiction to initiate Civil and Criminal proceedings under Sections 179 and 185A of the Customs Act, 1969.

In the instant matter, upon submission of seizure report C.No. Appg-182/J/DC/Enf-1/Seiz/2012 dated 07.01.2013, the case after issuance of show cause notice has been adjudicated upon in accordance with law.

(b) The contents of para 2 of the grounds of appeal are not maintainable hence denied. The show cause notice was issued by the respondent No. 2 in exercise of the powers under section 179 read with section 180 of the Customs Act, 1969, in accordance with law.

(c) That contents of para 3 of the ground of appeal have already been commented upon in the preceding paras.

(d) That contents of para 4 of the ground of appeal are not maintainable the show cause notice has been issued in accordance with law.

(e) That the appellants from para 5 to 14 have relied upon various citation in support of his contention raised in the said paras. Since the import of CNG Cylinders is not permissible in terms of clause (viii) of sub paragraph (A) of paragraph 5 of Import Policy Order, 2009, thereby the appellant have imported and attempted to clear consignments of CNG cylinders in violation of the provisions of Section 16 of the Customs act, 1969 read with Section 3(1) of Import and Export Control Act, 1950 read with S.R.O. 84(I)/2012 dated 01.02.2012, punishable under clause 3(1) of subsection (1) of Section 156 of the Customs Act, 1969 and Section 3(3) of Imports and Exports Control Act, 1950. Therefore, the citation relied upon by the appellant are not relevant to his case.

9. The Tribunal through order dated 17.02.2014 in the appeals set aside the order passed by respondent No. 3 and remanded the case to respondent No. 2 for decision afresh on the understanding that the order passed by the authorities below were based on the concept of mutatis mutandi, which is not permissible under the law laid down by the Superior Judicial Fora. The relevant paras 9 & 10 of the order is reproduced for ease:--

9. "I have examined the case in the light of arguments of both the parties representative and have perused the record of the case and find that the learned forum below has not passed order independently. The order in appeal was passed in case of Qazi CNG Filling Station and the same was applied mutatis mutandis to another appeal bearing No. K-3139/2013 (Shameel Enterprises.). The Sindh High Court already directed in case of Pakistan Telephone Cables Ltd. v. Federation of Pakistan and others, reported in 2011 PTD 2849, wherein the divisional Bench of High Court of Sindh remanded the case for disposal according to law with the following observations:--

"We recall that we have already deprecated this tendency of the Customs Authorities to finalize the cases on the basis of the concept of mutatis mutandi and had earlier directed them to pass separate orders in every case but apparently the decision has not been compiled with. We are therefore of the considered opinion that these orders cannot be sustained. The orders of the lower Court are, therefore set aide and the matters are remanded back to the Adjudicating authority to pass an order afresh by independent stating the facts of each case and speaking order is passed after giving both the parties an opportunity of being heard."

This order may be circulated to the Tribunal and the Customs authorities with directions that in future no order should be applied mutatis mutandis to the case of the other litigants the fact of which have bot ben stated in such orders."

10. In view of the above referred judgment I set aside the order in appeal and remand back both the appeals to adjudicating authority to pass the fresh order independently in each case and speaking order be passed after giving both the parties a fair opportunity of hearing within two months time.

10. The applicants being aggrieved from the orders filed rectification application dated vide dated 04.03.2014 on the strength of the following submission:--

(a) It is bad in law by virtue of the fact that actual, factual and legal discrepancies are floating on the surface of the passed order dated 17.02.2014, wherein the case has been remanded to the original authority on the pretext that the order applied on the appellant case is mutatis mutandis despite not as evident from the fact that the orders of respondent Nos. 2 and 3 are specific to the extent of appellant case. Beside no plea in regards to mutatis mutandis had been taken by the appellant in the grounds of appeal. In the given circumstances the Tribunal is barred by section 194B(1) of the Customs Act, 1969 to remand the case. The order is even in derogation of Article 201 of the Constitution of Islamic Republic of Pakistan and reported judgment PTCL 2002 CL 388 M/s. 3N. Traders v. Collector of Customs Appeals, Central Zone, Lahore rendering it without power/jurisdiction and as such ab-initio void. Thus, this application under Section 194-B(2) of the Customs Act, 1969 for rectification of the discrepancies in the light of the settled ratio by the Superior Judicial Fora in umpteenth binding decision to the law point raised in the memo of appeal.

(b) The attention of Hon'ble Tribunal is invited to Section 194-B of the Customs Act, 1969, which does not extend any power to Tribunal to remand the case. For ease Section 194-B is reproduced here-in-under:

194-B Orders of Appellate Tribunal The Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit confirming, modifying or annulling the decision or order appealed against. The Appellate Tribunal may record additional evidence and decide the case but shall not remand the case for recording the additional evidence.

(c) That the Hon'ble Tribunal can only confirm, modify or annul the decision or order appealed against the Appellate Tribunal may record additional evidence and decide the case, which it did during the course of hearing fixed on 09.01.2014 & 15.01.2014 and decide the case but not empowered to remand the case for filling lacuna/deficiency by the respondent no deviation can be made from the expressed provision of the Act as per rule of interpretation.

(d) That it is appropriate for the applicant to state that when it has been unambiguously and categorically held that if the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful. The Hon'ble Apex Court in their reported judgments as 2001 SCMR 838 and 2003 SCMR 1505 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 observed that if the law had prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit for achieving or attaining the objective of performing or doing 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 Civil Petition filed by the Director General of Investigation and others v. M/s. Al-Faiz Industries (Pvt.) Ltd., and others reported as (sic) SCMR 129. The Contravention report prepared by the DGI&I and show cause issued by the authority are, therefore un-lawful, illegal without jurisdiction and "coram non judice" and this view is borne out further from 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 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 and 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi, 2005 PTD Cl 23 Shahzad Ahmed Corporation v Federation of Pakistan, 2010 PTD (Trib.) 957, PLD 1971 SC 197 and PLD 1973 SC 236.

(e) That the order of the Tribunal in the present shape with due respect is confusing and is being passed/issued not on merit instead on biased and discrimination.

(f) The order state that none appeared from the respondent, whereas in (para 7) Mr. Saud Hassan I/O name is mentioned and he is being called absent despite of the fact that he was present and he submitted the comments and this fact stood further validated from the line below wherein the Tribunal directed him to file written arguments, no person can be directed when he is not present confirming that he was very much present and submitted the comments and are available in case file.

(g) The Order-in-Original No. 8/2013 dated 01.08.2013 and Order-in-Appeal No. 8350 dated 02.12.2013 is specific to the case of appellant and cannot be termed through any dictionary meaning and interpretation as being passed as being applied on the case as mutatis mutandis, resultant, the Tribunal was duty bound to pass a decision on the order on the filed appeal after rebutting the grounds of memo of appeal and the judgments placed on record during the course of hearing. Regretted to state that no grounds in regards to mutatis mutandis has been taken by the applicant.

(h) That it was also mandated upon the Tribunal to pass order in the instant appeal in consonance with the Order of the Hon'ble High Court of Sindh in C.P. No. 4320/2012 issued in the case of Pakistan CNG Station and by the Appellate Tribunal in 16 appeals bearing No. 61/13 to 76/13 in the case of Shabbir Ahmed as adherance of Order of the High Court is binding under Article 201 of the Constitution of Islamic Republic of Pakistan and the judgment of Bench of Tribunal as held in reported judgment PTCL 2002 CL 388 M/s. 3N. Traders v. Collector of Customs Appeals, Central Zone, Lahore.

(i) The Tribunal termed itself above to the provision of the Customs Act/Rules, and judgment of the Judicial Fora and passed order on biased, whims and wishes while flouting of orders in field, this is not permitted as held by Hon'ble Supreme Court of Pakistan in reported judgment PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others.

(j) The abuse of power, bias and discrimination of the Tribunal stood further validated from the orders issued by the Bench in Appeal No. K-345/2012 Ayesha Aziz v. Collector of Customs (Appeals), K-369/2012 Hashim Ahmed v. Collector of Customs, Appeals & K-371/2012 Niaz Hussain Sayal v. Collector of Customs Appeals, which were allowed irrespective of the fact that the appeals filed with the Collector of Customs Appeals were barred by time, earlier were dismissed for non prosecution and restored subsequently and while ignoring the fact that Order-in-Appeal Nos. 6062 to 6064/2012 was applied mutatis mutandis on the orders despite having different facts as against to the appellant case which is not at all a case of mutatis mutandis, rendering the order passed in the applicant case in derogation of Section 24A of General Clauses Act and Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan.

(k) That it was mandated upon the learned appellant Tribunal to give reasoning of rejection of the grounds of appeal while passing order, instead of issuance of a perfunctory, cursory and non speaking order, failure to give decision on the grounds of memo of appeal and on the supplied relied upon judgments, despite mandated to do so as per laid down law in reported judgment 2002 CLC 825. Wherein, the Hon'ble Division Bench of the High Court held that:

"Failure to give decision on each issue---Trial Court while deciding the suit had framed six issues but did not extend reasons separately on all issues and decreed the suit.---while deciding appeal the Appellate Court had also not decided the suit---while deciding appeal the Appellate Court had also not deciding the appeal issue-wise. Both the Courts below had disregarded mandatory provision of O. XX, R. 5 C.P.C and O. XLI, R 31. C.P.C. respectively. Where in the judgment the Appellate Court had not stated points for determination, decision thereon and the reasons for its findings, the same was not a "judgment" according to law---- Trial Court and Appellate Court having acted in exercise of its jurisdiction with material irregularity". The Division Bench also held that "Good judgment must be self evident and self explanatory---In other words it must contain reasons which should justify conclusion arrived at and the reasons should be such that a disinterested readers can find same convincing or at least reasonable".

(l) The applicant in support of his stance rely upon reported judgment 2008 PTD 169 Commissioner of Income Tax Peshawar v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. and 6 others and 2010 PTD 106 Commissioner legal Division Large Tax Payer Unit Karachi v. Paracha Textile Mills Ltd., Karachi, wherein their Lordship of Supreme Court held in un-equivocably that wherein error of law or fact is discovered in the order itself, such an error falls within the category of "error apparent on the face of the record".---- Failure of the Court to take into consideration the material facts or statutory provision, which, if so considered, would have material effect on the fate of the case, would also amounts to an "error apparent on the face of the record" and error on the face of record is not restricted to clerical error or arithmetical mistake. Likewise the Appellate Tribunal of Inland Revenue of Pakistan, Karachi in MA(Rect) No. 47/KB/2011 48/KB/2011, 49/KB/2011 in Sales Tax Appeal No. 743, 745/KB & 746 KB/09 of M/s. Maxco (Pvt.) Ltd., Karachi v. CIR, R.T.O. Karachi allowed the rectification application while holding that the Tribunal has found that while passing the order, inadvertently the contention of the appellant/present applicant have not been considered, instead ignored, hence in the given circumstances the order of the Tribunal dated 21.12.2010 are recalled and the case are directed to be placed at their original number for hearing for passing a fresh order.

11. That in view of the above elaboration, the Hon'ble Tribunal is requested to recall its earlier order and pass a fresh order after diluting upon the facts of the case and the ground of memo of appeal in accordance with Article 201 of the Constitution of Islamic Republic of Pakistan and the ratio decidendi set-forth in its order of identical nature of umpteenth reported/unreported judgments and in the light of reported judgment 2007 PTD 153, wherein the Hon'ble High Court held "Tribunal being final fact finding authority, application for such purpose could submit rectification application before Tribunal" and wherein in reported judgment 2002 PTD 1587, the Hon'ble High Court held that "nothing restrained the Tribunal in the present case from recalling their earlier order--- interest of justice ought to have served to undo a wrong for which the applicant was not at fault--- order passed by the Tribunal was set aside and rectification application filed by the applicant was ordered as being pending before the Tribunal for decision".

12. The Tribunal after hearing the arguments of the Consultant/Advocate observed that the orders passed by the Tribunal is based on wrong notion as such erroneous by virtue of the fact that it remanded the case while considering that the order passed by the respondent Nos. 2 and 3 are based on the concept of mutatis mutandis, irrespective of the fact that those were specific and has been passed/issued in the name of the applicants. And refer to Adjudicating Authority which does not include Collector (Appeals) as defined in Section 2(a) of the Customs Act. Beside no rebuttal on the ground of memo of appeal and reasoning has been given in the order. These defects, falls within the ambit of apparent discrepancies floating on the surface of the order. In view of these facts, I am of the view that order had been passed inadvertently on misconception, therefore I recall orders dated 17.02.2014 and direct the office to put the respondents on notice for 22.04.2014 for the submission of comments if any on or before of the date of hearing.

13. The hearing fixed for 16.04.2014 was adjourned to subsequent date due to certain unavoidable reason and case was finally heard on 30.04.2014 on which date the respondent relied upon the arguments incorporated in comments dated 06.01.2014 and supported the judgment passed by respondent Nos. 2 and 3 as against the consultant/advocate of the applicant who controverted the allegation leveled in the show cause notice and so the legality of the orders passed by them.

14. Rival parties heard and case record perused and the following issues are framed for decision:-

(i) Whether apparent mistake/error floating on the surface of order is restricted to typographical or arithmetical or factual and legal mistake/discrepancies also falls within the ambit of the said phrase and can be rectified within 01 year as expressed in Section 194(B-2) of the Customs Act, 1969 and the law laid down by the Superior Judicial Foras in umpteenth reported judgments?

(ii) Whether officials of Directorate General of Intelligence & Investigation FBR are empowered to take cognizance in the matter corresponding to Sections 16, 32, 79, 80, 83 and 195 of the Customs Act, 1969 and to be read with Notification No. 486(I)/2007 dated 15.06.2007?

(iii) Whether the Officials of Directorate General of Intelligence and Investigation-FBR are empowered to lay hands on the consignment, which has undergone the process of passing of assessment/clearance order under Sections 80 and 83 by the authority defined in Section 2(a) of the Customs Act, 1969 at the Port/Terminal prior to delivery, in the absence of seizure notice under section 168 and serving notice to the importer under section 171 of the Customs Act, 1969.?

(iv) Whether respondent No. 2 was empowered to adjudicate the case under Section 179 of the Customs Act, 1969, Notification No. 371(I)/2002 dated 15.06.2002 and Section 2(a) ibid in which no loss of revenue is visible?

(v) Whether order-in-original was passed within the period of 120 days given in subsection (3) of section 179 of the Customs Act, 1969 and the extension given by Collector of Customs on 18.05.2013 was valid and answer the expression of the proviso?

(vi) Whether Notification No. 84(I)/2012 dated 01.02.2012 can be amended by any Ministry through a letter containing it opinion?

(vii) Whether a notification has to be read and interpreted in the light of what is clearly expressed therein?

(viii) Whether order of the High Court is binding on the subordinate forum/authority under Article 201 of the Constitution of Islamic Republic of Pakistan?

(ix) Whether mere filing of a CPLA with the Hon'ble Supreme Court of Pakistan abate the Order of the Hon'ble High Court?

(x) Whether order of a Bench is binding on the other Bench of the Tribunal and cases containing similar facts has to be decided in the light of the said order in accordance with the maxim of ratio decidendi?

(xi) Whether M/s. Shameel Enterprises (Clearing Agent) acted contrary to defined duties in the respective provisions of the Act and Chapter VIII of Customs Rules, 2001?

(xii) Whether the respondent No. 2 issued the show cause notice after going through the facts of the case and applicable provision of the Act, Rules and Regulation independently and fairly as held in reported judgment 2004 PTD 369 M/s. Zeb Traders v. Federation of Pakistan?

(xiii) Whether order of the respondent Nos. 2 and 3 can be termed as speaking order as defined of Section 24-A of the General Clauses Act, 1897?

15. That as regard issue No. (i) rectification of error/mistake floating on the surface of an order is not restricted to the typographical error or arithmetical mistake, instead that also encompass factual/legal and substantive/procedural error/mistake and this stood validated from the order of the Hon'ble Supreme Court of Pakistan reported as 210(sic) PTD 1016 Commissioner (Legal Division) Large Tax Payer Unit , Karachi v. Paracha Textile Mills Ltd, Karachi that "mistake not have been arithmetic or clerical mistake but it could be substantive or procedural mistake. In 1993 PTD (Trib.) 249 it has been held that "the record contemplates the section does not mean the order of assessment but it comprise all proceedings on which assessment order is based and the income tax officer is entitled for the purpose of exercising jurisdiction under the section to look into the evidence and the applicable section to ascertain whether there was an error---this section permits rectification of all mistakes which are apparent from the record of the appeal, revision, assessment or refund as the case may be . Non controverting the ground taken in the appeal is also amounts to apparent error/mistake floating on the surface of an order as held by High Court of Sindh in 2002 CLC 825 Qamar-ud-Din v. Province of Sindh that "wherein the judgment, the Appellate Court has not stated point for determination, decisions thereon and the reason for its finding, the same was not a judgment according to law ---- Trial Court and the Appellate Court have acted in exercise of its jurisdiction with material irregularity such judgments and decree was set aside--- good judgment must be self evident and self explanatory in other words it must contain reason which should justify conclusion arrived at and the reason should be such that a disinterested reader can find same convincing or atleast reasonable. In 2008 PTD 1940 Dr. Zafar Haider v. Income Tax Appellate Tribunal and 2 others it has been held that there is onerous duty on the adjudicating authority to discuss and dispose off what has been argued. Failure to do so amounts to mistake which float from the surface of order.". The Hon'ble Supreme Court of Pakistan in reported judgment 2008 PTD 169 Commissioner of Income Tax Peshawar v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. and 6 others held " where an error of law or fact is discovered in the order itself such an error falls within the category of "error apparent on the face of the record " ----Failure of the court to take into consideration the material fact or statutory provisions which, if so considered, would have material effect on the fate of the case, would also amount to an "error on the face of record." "The power of review is conferred upon Supreme Court under Article 188 of the Constitution read with order XXVI, rule 1 of Supreme Court rules 1980 and supreme Court may, subject to law and practice review its judgment or order if an error of law or fact, having material effect on the case on merit, is found apparent on the face of record or if such a material question of fact or of law bearing effect the decision, has been overlooked. The review jurisdiction of Supreme Court is certainly invocable in case in which an error either of fact or law is manifest and is found floating on the surface of the record. The court may not hesitate to review an order passed on erroneous assumption of material fact or misconstruction of law which has a substantial effect on the fate of case and is considered a wrong order." Where an error of law or fact is discovered in the order itself such an error falls within the category of error apparent on the face of record. The failure of the court to take into consideration the material facts or statutory provisions which, if so considered would have material effect on the fate of the case would also amount to an error on the face of record." In the light of principle laid down by the Superior Judicial Fora this Tribunal also held in reported judgment 2014 PTD (Trib.) 218 Kohsar Distributor v. Collector of Customs, Sales Tax and Central Excise and another held that " "Tribunal may amend any of its order with a view to rectify any mistake apparent from the record at any time within 1 year of that order---Tribunal had inherent jurisdiction to rectify the error/mistake whether factual or legal floating on the surface of any order.---Error on the face of record was not restricted to clerical error or arithmetical mistake -----Appellate Tribunal being final fact finding authority could rectify its order. Meaning thereby, that the error/mistake floating on the surface of order is not at all restricted to clerical error or arithmetical mistake instead all type of error whether factual/legal or substantive or procedural falls within the ambit of apparent mistake floating on the surface of an order and can be rectified within 1 year from the date of Order by the Tribunal being final facts finding Forum as per the expression of Section and the law laid down by the High Court of Sindh in reported judgments 2007 PTD 153 and 2002 PTD 1587. The issue No (i) is answered in affirmative.

16. That as regard issue No. (ii) the Board has not delegated the powers to the respondent No. 1 under the provision of Section 16 (Power to prohibit or restrict importation and exportation of goods) Section 32 (false statement , error etc.) Section 79 (Declaration and Assessment for Home Consumption Warehousing), Section 80 (Checking of goods declaration by the Customs), Section 83 (Clearance for home consumption) and Section 195 (Power of Board or Collector to pass certain order) of the Customs Act, 1969. The case in question is of importability and fall under the ambit of Section 16 under which the Ministry of Commerce or Board is empowered to restrict the importation or exportation of any goods. In the subject case Section 32 is at all not applicable , as no mis-declaration in material particular has been made by any of the appellants. Section 79 is a machinery Section and define the procedure for filing of goods declaration by the importers, Section 80 empowers a Custom Officer to complete Assessment Order against the imported goods, for levy of duty and taxes etc. After payment of those the Principal Appraiser passes Clearance Order under Section 83 of the Act. The Board or Collector is empowered to reopen the assessment order passed under Section 80 of the Customs Act, 1969 in exercise of the power conferred upon under Section 195 of the Customs Act, 1969. Irrespective of the fact the officials of respondent No. 1 has no power under the said sections laid hand on the consignment which has been lawfully released by the Competent Officer under the provision of Sections 80 and 83 of the Customs Act, 1969 after passing of valid and legal Assessment/Clearance Order. The official of respondent No. 1 transgressed the power of the authority defined in Sections 16, 32, 80, 83 and 195 of the Customs Act, 1969 and Notification No. SRO 371(I)/2002 dated 15.06.2002, rendering the detention/seizure and subsequently preparation of contravention report without power/ jurisdiction being in derogation of Notification No. 486(I)/2007 dated 09.06.2007 and as such null , void ab-inito and coram non judice. The judgments referred by the appellant and incorporated in para 4(i) are relevant and applicable in the instant case. The issue No. (ii) is answered in negative.

17. That as regard to issue No. (iii) the consignment in question had undergone the procedure of clearance as evident from the fact that the appropriate officer in the capacity of adjudicating authority defined in Section 2(a) of the Customs Act, 1969 in exercise of the powers vested upon him under Section 80 and Notification No. 371(I)/2002 dated 15.06.2002 passed assessment order for levy of duty and taxes , which were paid by the Applicant No. 1, consequent to which the authority defined in Section 83 of the Customs Act, 1969 passed Clearance Order. Consequent to which the Applicant No. 2 approached the Terminal Operator to effect the delivery, which was his legal right. To the contrary, the respondent No. 1 put an hold on the consignment on the pretext that the goods so imported are banned under Notification No. 84(I)/2012 dated 01.02.2012 of Ministry of Commerce and tried to re-assess the goods under Section 80 while reopening of the order of assessment/clearance passed under sections 80 & 83 of the Customs Act, 1969, in exercise of the power under the provision of Section 195, specifically vested with the Board or Collector. The plea taken in the comments that the consignment was not cleared as the same was not delivered and still was within the reach of Customs is based on misconception, as after clearance of the goods (out of charge) the Custom Officials became fictitious officio and the delivery of the goods has to be effected by Port Authority/Terminal Handler and not by the Customs. It has been held by the High Court of Sindh in unreported judgments in Constitution Petition No. D-568/2010 Shakeel Ahmed v. FOP and D- 710 to 714/2010 M/s. Jamal Din and others v. FOP and 2 others that the Respondent No. 1 has no power under the provision of Section 80 of the Customs Act, 1969. Similarly, in regards to laying hand on the consignment which has gone the formalities of assessment/clearance, at Port/Terminal prior to delivery. The Hon'ble High Court of Sindh in reported judgment 2005 PTD 23 Shahzad Ahmed Corporation v. Federation of Pakistan through Secretary Ministry of Finance, Government of Pakistan, Islamabad and 2 others, held at paras 27, 32 and 33 at pages 46,49 and 50 that:--

27: "A bare per usual of Sections 168 and 171 of the Customs Act, shows that the legislature has provided a protection to the citizens against any high-handedness and the arbitrary act on the part of Tax Officials. Thus, the condition precedent for seizure of goods under Section 168 read with Section 172 of the Customs Act, 1969 is that before seizure of goods the Appropriate Officer should record reasons in writing as to why goods are liable to be confiscation and the use of the expression that the Officer or the person making such seizure is required to inform in writing the grounds of such seizure is indicative of the fact that the opinion should not be generalized and vague. There should be specified grounds forming base of opinion that the goods are liable to confiscation, failing which the initiation of proceeding shall be violative of the statutory provision and would be bound to be struck off. The law has not empowered the Customs Officials to seize the goods without any reasonable ground reduced in writing and without communication of the ground to the person concerned and there after hold a rowing and fishing inquiry for the purpose of creating grounds for the seizure of the goods. In the present case, the Respondent No.3, has acted in gross violation of the law and has infact seized the goods which were out of charge after due examination by the Appraisement staff who are appropriate officer of the Customs Act, and has therefore clearly over stepped the jurisdiction vested in an Appropriate Officer. We would hasten add that in the present case, Respondent No.3, in not an Appropriate Officer for the purpose of Section 168 or Section 32 of the Customs Act and had candidly conceded by the learned Federal Counsel.

32: The Officer in each category in the customs department are required to act within the specified sphere and parameter without encroaching upon the powers of the Officers of the other department such as Appraisement Department and to the detriment of the importers whose consignment are out of charge after due process specified in law. In this case the power of examination, evaluation and assessment has been vested to Customs Appraisement official and Respondent No.3 at the most requires the production of Order under section 83 as provided in Section 174.

33: For the forgoing reasons, we hold that the respondents Nos.2 and 3, had no jurisdiction to stop the release of goods owned by the petitioner and all subsequent acts in pursuance thereof are declared to be unlawful and void ab-initio. The Respondents Nos.2 and 3 are directed to release the consignment of the petitioner forthwith, which was already out of charge. They are restrained for interfering in any manner with the release of the consignment. They are further directed to issue the delay and detention certificate immediately as the petitioner cannot be saddled with the liability on account of illegal acts committed on behalf of the Respondent Nos. 2 and 3."

In another recent unreported judgment dated 30.04.2014 in C.P no D-5033/2013 Sadaat Khan FOP and others the Division Bench of the Hon'ble High Court of Sindh further dilated upon the case of Shehzad Corporation and held that "in as much as in those cases the consignments after processing of their documents and Goods declaration were detained in the Port area and were not allowed to be cleared despite fulfillment of all requisite and codal formalities, whereas in the instant matter the goods have been assessed by the officer of Respondent No.3 and had been allowed to be cleared from the Custom Area and were being transported from Hyderabad to Karachi, and thereafter they were intercepted by Respondent No.3 we are respectful agreement, that there being change in law with the observation the learned Division bench in the case of Shehzad Corporation supra in so far as the detention of the goods within the Port area before or after processing of the goods declaration is concerned, the officers of Respondent No. 3 do not have any lawful authority to detain such goods and then to act as a supervisory body of the respective Collectorate of Clearance they can only intercept goods upon any credible information in respect of such goods outside the port area and within the domain of their respective jurisdiction. It must be appreciated that they have to act as an intelligence agency, suppose to fully equipped with the related machinery, intelligence network and knowhow required for specialized agency. They cannot enter into a rowing or fishing expedition. In fact this is what they have attempted to do in Shehzad Corporation Supra and was accordingly disapproved by this court. It shall also be noted that such interception could only be done once there in prima facie material available with the Respondent No.2 that the goods which are intercepted, are such that they are liable to confiscation and not otherwise. This is so, because the officer of Respondent No.2 have been conferred with the powers under section 168 of the Act and therefore there is a clear intention that they can seize any such goods that are liable to confiscation and liable to confiscation goods only means either that there is an apparent mis declaration of description of goods or a mis-declaration of quality and quantity of the goods, resulting in a definite loss of revenue. It would not mean and include any alternate or contrary interpretation of an exemption Notification or interpretation regarding classification of goods and or not application or wrong application of a Valuation Ruling, as firstly this is not within their domain and jurisdiction and for which specialized departments and or bodies has been established by the FBR and secondly, it is settle proposition of law that an interpretation of a notification as well as the classification of the goods does not fall within the definition of mis-declaration. (Emphasis provided)

The referred judgment are squarely applicable in the instant case of the applicants as evident from the fact that the Respondent No.1 put an hold on the consignment at the Port after examination of the goods and completion of assessment/clearance order under Sections 80 and 83 of the Customs Act, 1969, for not delivering the goods on the strength of their interpretation that CNG cylinders for storage at Filling Station is not importable under S.R.O No. 84(I)/2012 dated 01.02.2012 which least falls within their specified duties as held by the Hon'ble High Court of Sindh. In the instant case no mis-declaration is apparent in material particular also, hence the subject consignment stood ousted from their jurisdiction and the same cannot be seized under Section 168 of the Customs Act, 1969, under which they are empowered vide Notification No.486(I)/2007 dated 09.06.2007. The official of respondent No. 1 acted completely in violation of law, evident from the brazen fact that despite having no powers, they put an hold on the consignment and their this act also amounts to notional seizure defined by the Hon'ble High Court of Sindh in reported Judgment 2003 PTD 2821 Syed Mohummad Razi v. Collector of Customs(Appraisement), Custom House Karachi and 2 others. Inspite committing illegality they have not bothered to prepare/ serve seizure notice under Section 168 and Notice under Section 171 of the Customs Act, 1969, on the applicant which is prerequisite, rendering their whole act tainted with arbitrariness, highhandedness malafide and without lawful authority, null, void ab initio and ab-initio wrong, hence corum non judice. The issue No. (iii) is answered in negative.

18. That as regard to issue No. (iv), upon perusal of show cause notice, it has been noted that the provision of Section 32 of the Customs Act, 1969 has not been invoked meaning thereby that no monitory loss to the exchequer was caused by the applicant No. 1 and case in question squarely falls within the provision of Section 80 of the Customs Act, 1969 under which Principal Appraiser has jurisdiction in terms of notification no. SRO. 371(I)/2002 dated 15.06.2002 and he is the only authority to adjudicate the instant case as defined in Section 2(a) of the Customs Act, 1969. Therefore, the show cause notice issued by respondent No. 2 is without power/jurisdiction and super structure built there upon by way of order-in-original and order-in-appeal were without power/jurisdiction and coram non judice. The case relied upon by the applicant in para 4(v) to (vii) supra fully support his contention. Beside the Hon'ble Supreme Court of Pakistan in the case "Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240) has held that the Institution specifically barred to adjudicate any matter to the extent of certain mandatory limits shall not be competent and had no jurisdiction to deal with any such matter exceeding the limit subscribe under the law. Hon'ble supreme Court of Pakistan has held in the case of "Sardar Ahmed Yaar Khan Jogzai v. Province of Balochistan" 2002 SCMR 1022 that "where essential features for assumptions of jurisdiction is contravened or forum exercises powers not vested in it or exceed authority beyond limit prescribed by law, the judgment is rendered coram non judice and in operative." Hon'ble Supreme Court of Pakistan in re "Faqir Abdul Majeed Khan v. District Returning Officer and others" 2006 SCMR 173 has observed that "by now it is well settled that any order which suffers from patent illegality or without jurisdiction, deserve to be knock down. Whereas, the Hon'ble Supreme Court took a very serious notice in reported judgment 2001 SCMR 1822 Ali Muhammad v Chief Settlement Commissioner, wherein the Hon'ble Chief Justice (R) Mr. Iftikhar Muhammad Choudhry presiding a Bench in the capacity of Judge of Supreme Court as was then their lordship was held that "whenever order are passed by an officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercised in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice" re: PLD 1958 SC 104, PLD 1973 SC 326, PLD 2002 SC 630, 2003 SCMR 50, 2004 SCMR 25, 2004 SCMR 1798, PLD 2004 (sic) and PLD 2005 Supreme Court 842 . With this I hold that the show cause notice and the super structure built there upon null void and ab-initio. The issue No. (iv) is answered in negative.

19. That as regard to issue No. (v), the show cause notice to the applicants were issued on 06.02.2013 by respondent No. 2 and an order under the proviso of subsection (3) of Section 179 of the Customs Act, 1969 was mandated to be passed within 120 days i.e. by 06.06.2013 or within further extended period of 60 days prior to extension of initial period of 120 days with reason to be recorded for expiry. No extension was accorded by the Collector of Customs as prescribed in the proviso as apparent from record of the case, the extension granted vide order dated 18.05.2013 by him as stated by the respondent No. 2 in para 8 of order-in-original is not based on mandated requirement of law i.e. availability of exceptional circumstances and recording of those after giving notice to the applicants as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment "1993 SCMR 1881 Khalid Mahmood v. Collector of Customs", therefore extension granted on 18.05.2013 is in omni bus manner and fail the test of judicial scrutiny, rendering the order barred by time by 55 days, hence without power/jurisdiction and not enforceable under law as held 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263, 2009 PTD 1978, 2010 PTD (Trib.) 1010, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1146, 2012 PTD (Trib.) 1650 & 2012 PTD 1016 The issue No. (v) is answered in negative.

20. As regard to the issue No. (vi), it is settled proposition of law that the Notification can be recinded/amended through a notification only and not through any communication. In the absence of amendment of the Notification the clarification issued by Ministry of Commerce or Ministry of Petroleum and Natural Resources could only be termed as opinion, and this does not at all amend the Notification. Fabricating of the case on the basis of opinion is void as nor Ministry of Commerce neither Ministry of Petroleum & Natural Resources or FBR are empowered to interpret a notification, it is sole prerogative of the Supreme/High Courts. Even otherwise, "it is well settled principle of law that if the law had prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit for achieving or attaining the objective of performing or doing a thing in a manner other than provided by law would not be permitted". For reference see reported judgment 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838, 2003 SCMR 1505, 2006 SCMR 129, PLD 1996 Karachi 68, 2006 PTD 978 & PLD 1971 Supreme Court 184. The issue No. (vi) is answered in negative.

21. As per regard to Issue No. (vii), upon meticulous study of the Notification No. S.R.O 84(I)/2012 dated 01.02.2012 issued by the Ministry of Commerce amending para (v) in sub para (A) after clause (viii) , which read as follows:

"Import of CNG Cylinders and conversion kits falling under respective PCT heading shall not be importable with immediate effect and under further orders. This banned shall however not applied on CNG Cylinders and conversion kits for whom letter of credit were established prior to 15.12.2011. Furthermore, the aforesaid banned shall not apply on CNG fitted public transport vehicle i.e. buses and vans. "

The Ministry of Commerce infact banned the import of "CNG Cylinder and conversion kits used in motor vehicle only and not on the import of CNG Storage Cylinder used by CNG Stations". No other meaning can be given to the said expression being in consonance of its spirit. Nothing can be added or subtracted to suits ones opinion as that amounts to redundancy, which has to be avoided. Even otherwise it is settled rule of interpretation 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 Court and Supreme Court of Pakistan in their reported judgment starting from Abbassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463 to M/s. Fazal Ellah v. Additional Collector of Customs, 2009 PTD 1167. Even otherwise "if there are two or more interpretation of our provision pertaining to levy of tax on account of anomaly/ambiguity the one favourable to tax payer has to be adopted by the court" as per judgment reported as 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 & 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". For clarity of the issue it is beneficial to quote the .. Judgment reported as 2004 PTD 901, wherein the Hon'ble of High Court of Sindh 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 draft'sman 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.

22. The issue under consideration had already been adjudicated upon by the Hon'ble High Court of Sindh in Constitution Petition No. D-4320/2012 M/s. Pak CNG Station v. Directorate General of Intelligence and Investigations-FBR and 6 others, wherein the interpretation adopted by the applicant has been endorsed in the following manner:--

"We conclude that the ban or prohibition imposed by clause (viii) added to paragraph 5(A) of the Import Policy Order 2009 does not cover storage cylinder used in CNG Station. Such cylinder may therefore be imported in accordance with law.

Accordingly, this petition is allowed the petitioner is entitled to import the storage cylinder to be used in CNG stations and the container held up is to be released after being processed and cleared in accordance with law. Furthermore, the show cause notice dated 19.11.2012 issued against the petitioner has been issued on a misinterpretation and misapplication of law. Hence, this show cause notice is declared to be of no legal effect and quashed, and all proceedings in connection therewith stand terminated with immediate effect."

23. In the light of above deliberation and quoted authorities the plea taken by the respondent No. 1 in the comments and respondent No. 2 in para 9 of the Order-in-Appeal on the basis of, Board's letter dated 13.08.2012 on the strength of opinion of Ministry of Commerce and Ministry of Petroleum Natural Resources is nullity being devoid from the interpretation adopted by the Hon'ble High Court of Sindh in C.P. No. 4320/2012, which laid to rest the controversy, verbatim of which is reproduced for ease:

"We have heard learned counsel as above and consider the record with their assistance. The insertion of clause (viii) in the Import Policy Order, 2009 by SRO 84(I)/2012 in terms as noted above brought about a change in the law, since the Import Policy Order has the force of law. The proper interpretation of law is peculiarly the domain of the Courts and hence the proper interpretation, effect and scope of clause (viii) is ultimately a matter for judicial consideration and decision. In our view it is clear that the storage cylinders use to store CNG at the CNG Stations are different from the cylinder that are installed in motor vehicle that run on CNG. This is clear from the material placed on record and in terms of SRO 575(I)/2006 as noted by FBR itself. When clause (viii) as inserted by SRO 84(I)/2012, is examined, it is found to prohibit the importation of two types of goods: "CNG Cylinders" & "Conversion Kits". There is no doubt that the later apply only in relation to motor vehicles and indeed, such kits are also separately listed in SRO 575(I)/2006 as well. In our view when clause (viii) is read as a whole the reference to CNG Cylinders therein is to be cylinder that are fitted in motor vehicle and not to the storage cylinder that are to be installed in CNG Stations. This is brought out not merely by reference to "conversion kits" therein, but also the concluding portion thereof which refer to "CNG Fitted Public Transport Vehicle". The sort of cylinders referred to here can obviously only be the sort fitted in motor vehicle. Furthermore, even the view expressed by Ministry of Petroleum and Natural Resources , appeared really speaking, to be limited to Motor Vehicle, it is also to be noted that CNG Station are otherwise within a well established regulatory frame work and the simplest way to stop growth here is not to license new CNG Station at all. The ban on storage cylinders used in such station is neither the natural nor the most effective way of dealing with this issue. As opposed to this, the "conversion" of motor vehicle to CNG use is not as such subject to regulatory frame work. Any person can lawfully get his vehicle converted to such used. If therefore any increase in (i.e., "growth of) such usage is to be discouraged, the prohibition on import of conversion kit and cylinder used in motor vehicle is perfectly understandable. This also indicate that the clause (viii) is intended to apply only in relation to the cylinder fitted in motor vehicle and not otherwise".

That in accordance with the interpretation of the Hon'ble High Court of Sindh, the respondent No. 2 allowed release of the consignment vide Good Declaration No. KCSI-HC-73420-04062012 .Similarly, the Bench-I of this Tribunal while relying upon the said order allowed 16 Appeals bearing Nos. 61/2013 to 76/2013 M/s. Shabbir Ahmed son of Bashir Ahmed v. Additional Collector of Customs, MCC of PaCCS, The issue No. (vii) is answered in affirmative.

24. That as regard issue No. (viii). The order of the High Court is binding on all the Courts subordinate to it and so the quasi judicial forums under Article 201 of the Constitution of Islamic Republic of Pakistan, which explicitly says that "any decision of a High Court shall to the extent that it decide a question of law or is based upon or enunciate a principle of law be binding on all courts subordinate to it." Any deviation to the expression is tantamount to Defiance beside Contempt of Court. The respondent No. 3 was not empowered to ignore the judgment of the High Court of Sindh in C.P. No. D-4320/2012 and should had passed the order in accordance with the decided question of law and likewise it is mandated for this Tribunal to abide the said decision, therefore the order passed by the respondent No. 3 contrary to the order of the High Court is patently illegal and hold no ground and as such void and ab-initio. The issue No. (viii) is answered in affirmative.

25. That as regard issue No. (ix). The plea taken by the respondent no. 1 in their comments and respondent No. 3 in para 8 of the Order-in-Appeal that by virtue of filing a CPLA with the Hon'ble Supreme Court of Pakistan against the order of Hon'ble High Court of Sindh infact the order of the Hon'ble High Court of Sindh stood abate . This approach is not correct and stand negated from the Good Declaration No. KCSI-HC-73240-04082012 against which the respondent No. 2 released the consignment in compliance of the Order of the Hon'ble High Court irrespective of filing of CPLA by respondent No. 1 with the Hon'ble Supreme Court of Pakistan, because the order of the High Court has to be complied with under Article 201 of the Constitution of Islamic Republic of Pakistan unless stay has been granted or the order of the High Court is reversed by the Hon'ble Supreme Court. This principle is honoured without any exception by all and sundries, including the field formation as held by their lordship Chief Justice (R) of Pakistan Mr. Justice Saeed uz Zaman Siddiqui while presiding a Bench in the capacity of Judge of High Court of Sindh as was their lordship was then in reported judgment 1983 PTD 246 Khalid Adamjee v. Commissioner of Income Tax (West), Karachi that "until decision of High Court reversed by Supreme Court Law declared by High Court will remain same" and in unreported judgment in Customs Reference No. 52/2007 N.Ahmed and Sons v. Collector of Customs (Appraisement) and others that "it is a settled principle of law that even after the suspension of the order of the Hon'ble High Court by the Hon'ble Supreme Court , Order of the High Court is binding on the subordinate judiciary or quasi judicial authorities until and unless it is set aside. The issue No. (ix) answered in affirmative.

26. That as regard the issue No. (x), the order of the Bench of Tribunal is binding on the other Benches of the Tribunal as per maxim ratio decidendi and no deviation is permitted. This approach is correct and just and defeat the chance of discrimination, which is barred under Article 25 of the Constitution of Islamic Republic of Pakistan. Umpteenth judgments validating the said principle are in field, nevertheless, I will restrict to reported judgment 2003 PTD (Trib.) 220 M/s. 3N Traders v. Collector of Customs, Appeals, Central Zone, Lahore, wherein the Hon'ble Chairman of the Tribunal held that " precedent of the Custom Excise and Sales Tax Appellate Tribunal, Karachi Bench prima facie is binding on the Customs Excise and Sales Tax Appellate Tribunal , Lahore Bench, unless it is set a naught by decision of the full Bench of the Tribunal." The issue No.(x) is answered in affirmative.

27. As regard to issue No. (xi), M/s. Shameel Enterprises, Karachi filed Good Declaration on the strength of the import documents supplied to it by the appellant No. 1 and those were annexed with the Good Declaration and these form integral part of the declaration transmitted to Customs under Section 79(1) of the Customs Act, 1969 as defined in Section 2(kka) ibid, which read as follows:

[2{kka} "documents means a goods declaration, application for claim of refund, duty drawback or repayment of duty, import or export general manifest passenger manifest, bill of lading, airway bill, commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to customs, whether or not signed or initialed or otherwise authenticated, and also includes:-

(1) any form of writing on material, data or information recorded, transmitted, or stored by means of a tape recorder, computer or any other device, and material subsequently derived from information so recorded, transmitted or stored;

(2) a label, marking or other form of writing that identifies anything of which it forms part or to which it is attached by any means;

(3) a book, map, plan, graph or drawing, and

(4) a photograph, film , negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment of being reproduced; and)]

The appellant No. 2 in the capacity of Clearing Agent has no part to play in the said transaction as it is between appellant No. 1 and the respondent No. 2. He only provides service to him on very nominal charges and assistance to the officials of respondent No. 2 in conducting examination under section 198 of the Customs Act, 1969. On the basis of which the official of respondent No. 2 pass the assessment/clearance order under sections 80 and 83 of the Customs Act, 1969. From the record, it is apparent that he carried out his duties correctly as prescribed in the Act and Chapter VIII of Customs Rules, 2001. It is for the Official of Respondent No. 2 to assess the goods for levy of duty and taxes under section 80 of the Customs Act, 1969, which include correctness of the particular of the imports including declaration, importability of the goods in question falls within the ambit of declaration/assessment and clearing agent is non entity in the said section The Appellate Tribunal in umpteenth judgments wherein the facts were similar held that "provisions of section 209 of the Customs Act, 1969 provide immunity and limited liability against the agent and an agent cannot be charged for mis-declaration under section 32 of the Customs Act, 1969 if he filed documents under the provisions of Customs Act, 1969 in accordance with the import/export documents and further held that the action taken by the customs of charging agent and thereafter leveling penalty without any fault or default on his part is not only unfair but also illegal. Whereas in reported judgment 2002 YLR 2651 M/s Ports Ways Custom House Agent and another's v. Collector of Customs and another's held "The imposition of penalty on the Clearing Agent/appellant No.1 was all the more unjustified. To hold the clearing agent liable for the act of commissions and omissions on the part of the importer will require a clear finding based upon legally acceptable evidence of his being an active and conscious party to the manipulation. In normal course of his business, a Clearing Agent, files a bill based upon the document and information provided by the importer. He cannot be presumed to be a privy to any illegal arrangement, which the importer may have coined or had intended in his mind. For that purpose some evidence of his direct involvement will have to be brought on record. Particularly when it is not shown that the Clearing Agent was directly or indirectly a beneficiary of invasion of taxes. In the present case no attempt whatsoever was ever made to bring home guilt to the Clearing Agent. The appeal is accepted to the extend of Clearing Agent.". Nothing contrary to its prescribed duties were done by appellant No. 2. Resultant, invoking of section 32 of the Customs Act, 1969 and imposition of penalty was not warranted at all . The issue No. (xi) is answered in negative.

28. As regard to issue No. (xii), while perusing the show cause notice issued by the respondent No. 2, I have observed that he just signed the show cause notice drafted by subordinate on the strength of contravention report forwarded by respondent No. 1 containing opinion/interpretation in accordance to their whims and wishes, instead of examining himself the fact of the case , provision of the Act, Rules and Regulation, independently and un-influenced stood proved from the paras supra. Rendering, the issued show cause notice by him beyond his jurisdiction by virtue of no loss of revenue. Such type of attitude cannot be appreciated and fail the test of judicial scrutiny as held by Hon'ble High Court of Sindh in the case of M/s. Zeb Traders v. Federation of Pakistan reported at 2004 PTD 369: wherein it has been held that:

"The proceeding before Adjudicating Officer, under the Customs Act, 1969 are in the nature of quasi judicial proceedings and issuance of notice under section 180 of the Customs Act, is very important documents. The decision to issue show cause notice is to be taken by the Collector, Adjudication, by application of independent mind and not merely signing the draft show cause notice submitted by the investigation agency separate from the Adjudication Department and each category of officers are required to perform their respective functions/duties under the law. The practice to submit draft show cause notice by the Director General of Intelligence and Investigation to the Collector Adjudication is depreciated."

The issue No. (xii) is answered in negative.

29. As regard to issue No. (xiii), the order passed by the respondent Nos. 2 & 3 shows that these are not proper orders without application of judicial mind and provision of the Act. Instead these are non speaking orders and did not conform to the mandated requirement of S.24-A of the General Clauses Act, 1897. Orders which did not contains rebuttal on the ground advanced and decision/judgments relied upon by the applicants and also are not containing substantial reasons and does not shows that these were passed on objective consideration. Resultant, 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 and arbitrary and perverse and a perverse finding of fact is violative of the established principle of appreciation of evidence on record as such 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. The Order-in-original/Appeal are in being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act. It 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, PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib) 619. The issue No.(xiii) is answered in negative.

30. In view of the foregoing the contravention report/show cause notice are based upon proceeding which are infested with patent illegalities and which are held to be null and void. As such the order -in-original as well as impugned orders of the Collector (Appeals) based on such proceedings are also ab-inito, null and void and are therefore, set aside. The appeals are accordingly allowed as prayed. The respondent No. 2 is also directed to issue delay detention certificate in terms of Para 10 of Chapter XII Appraisers Manual 1973 to the appellant and the Terminal Operator to honour the same for waiver of demurrage and storage charges as ordered in subsection (2) of Section 14A of Customs Act, 1969 & clause (iv) of Rule 556 of Chapter XIV of Customs Rules, 2001. Order accordingly.

RR/90/Tax(Trib.)Order accordingly.