GALAXY ENGINEERING, LAHORE VS DEPUTY COLLECTOR OF CUSTOMS, R&D, MCC OF APPRAISEMENT-EAST, CUSTOMS HOUSE, KARACHI, 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2069 (2017)

Customs Act (IV of 1969)---

----Ss. 32, 79, 80, 83, 156(1), Cls. (14)(14A), & 186---S.R.O. No. 371(I)/2002, dated 15-6-2002---Misdeclaration---Upfront duty and taxes were deposited to which goods declaration was numbered---Nominated Appraiser opted to get the goods examined---Officials posted at terminal after physical verification of the goods confirmed the declaration---Appraiser passed assessment order on the basis of declaration, examination report, images and infield valuation ruling and transmitted the view message for payment of additional amount of duty and taxes, which were paid and Authority passed the clearance order---Officials of terminal operator informed the importer that hold had been placed on the goods declaration by the Deputy Collector and delivery could not be effected---Deputy Collector of Customs(MCC), informed the Clearing Agent that it was their apprehension that duty and taxes had not been levied correctly---Importer, upon apprehending the mala fide on the part of Deputy Collector Customs (MMC) filed constitutional petition before High Court on which order was passed that goods be allowed to be released after submitting of pay order of specified amount with the Nazir of the High Court and thereafter importer to present certificate and Nazir of the Court issued certificate---Department, thereafter, framed contravention report and show-cause notice was issued to the importer, with the allegation that the importer was involved in mis-declaration of description, brand, quality, classification, value and non-application of valuation ruling, resulting in loss of Revenue and that importer had violated the provisions of S.32 of the Customs Act, 1969---Validity---Consignment of importer could be detained under S.186 of the Customs Act, 1969 after payment of leviable duty and taxes and order of clearance by the authority defined in the SRO No.371(I)/2002, dated 15-6-2002, if any adjudication order against the said importer was in field and wherein fine/penalty had been imposed upon him and which he had not paid; or in a case wherein contravention report had been framed in an under clearance consignment for adjudication by the competent authority for imposition of fine or penalty---In the absence of availability of said conditions, consignment could not be detained under S.186 of the Customs Act, 1969---In the present case, no such order was available, wherein adjudicating Authority had imposed any fine or penalty on the importer nor any contravention report was prepared for the purpose of adjudication prior to passing of assessment/clearance under the respective provisions of Act/Rules---Department was only authorized to take action for issuance of detention notice, once the amount alleged to have been evaded had been finally adjudicated and decided against the person---Show-cause notice which was barred by time by 128 days was without power, jurisdiction and lawful authority hence, void ab initio and not enforceable under the law---Deputy Collector of Customs (Adjudication) issued show-cause notice and passed order in original by usurping the powers of Additional Collector, which was not permitted under the law---Exercise of jurisdiction by Deputy Collector of Customs (Adjudication) was without lawful authority and jurisdiction---Issuance of show-cause notice and passing of order-in-original, were void ab initio, in addition to the order passed by Collector of Customs (Appeals)---After passing of clearance order by the competent Authority, same could not be disturbed by any Authority, for preparing contravention report for adjudication proceedings---No misdeclaration of quantity, quality, weight for alleged PCT or value, were visible, as the weight in both the examination reports, assessment order and show-cause notice were one and the same; difference was shown only in description---Preparation of contravention report by Deputy Collector of Customs (MMC) and issuing/passing of show-cause notice/order-in-original by the Deputy Collector of Customs (Adjudication) and order-in-appeal by Collector of Customs (Appeals) were ab initio illegal and void, and of no legal effect which were annulled and set aside by the Tribunal.

Case law referred.

Nadeem Ahmed Mirza for Appellant.

Azam Shah A.O. for Respondents.

Date of hearing: 6th December, 2016,

JUDGMENT

TAHIR ZIA (MEMBER JUDICIAL-II).---By this order, I intent to dispose of Customs Appeal No.K-1285/2015 directed against the Order-in-Appeal No. 10445/2015 dated 27.07.2015, passed by the Collector of Customs, Appeal (here-in-after to be referred as respondent No.3), maintaining the Order-in-Original No. 85/2014-2015 dated 06.05.2015 passed by Deputy Collector of Customs, Adjudication, (here-in-after to be referred as respondent No.2).

2.Briefly facts of the case are that the appellant imported a consignment of 697 packages stuffed in 1x20 container comprising of 12000 kgs of Motorcycle Parts from China, upon receipt of shipping documents he delivered those to his clearing agent Messrs Khurram Brothers, Karachi for transmitting Goods Declaration (here-in-after to be referred as GD) under the provision of Section 79(I) of the Customs Act, 1969 (here-in-after to be referred as Act) and Rule 433 of Sub-Chapter-III of Chapter XXI of Customs Rules, 2001 (here-in-after to be referred as Rules) with the MCC of Appraisement-East, which he did and as per pre-requisite upfront duty and taxes of Rs.904,362.00 were deposited on 18.06.2014. Consequent to which GD was numbered as KAPE-HC-115019-18.06.2014. The nominated Appraiser opted to get the goods examined under Section 198 and Rule 435 prior to passing assessment order. Officials posted at terminal after physical verification of the goods confirmed the declaration and uploaded the report and images of goods. Upon appearance of those on his desktop, the Appraiser passed assessment order on 05.07.2014 on the basis of declaration, examination report, images and infield valuation ruling under the provision of Section 80 and Rule 438 of the Act/Rules, and transmitted view message for payment of additional amount of duty and taxes of Rs.530,979.00/-, which were paid on 05.07.2014, consequent to which the inbuilt authority of the WeBOC passed clearance order under Section 83 and Rule 442 of the Act/Rules. When the appellant clearing agent approached the terminal after obtaining delivery order from the shipping company, the official of terminal operator showed his inability and informed the appellant that a hold has been placed on the GD by the Deputy Collector, R&D.MCC of Appraisement-East,(here-in-after to be referred as respondent No. 1). Therefore, delivery cannot be effected, the appellant approached respondent No. 1, who informed the clearing agent that it is their apprehension that duty and taxes are not being levied correctly, which expect is being probe by the R&D Cell and the hold on the consignment shall be lifted in due course of time. On 04.07.2014, the respondent No. 1 directed respondent No. 2 to create an examination order in the system, which was done and consignment was re-examined and report to the said effect was against posted (sic) in the reservoir of the GD. Upon apprehending the mala fide on the part of respondent No.1, the appellant filed constitution petition bearing D-3791 on which order was passed vide dated 24.07.2014 that the goods be allowed to be released after submitting of pay order of the differential amount of Rs.238,007.00/- with the Nazir of the High Court of Sindh and thereafter presentation of certificate, which appellant did and the Nazir issued certificate dated 02.08.2014. The respondent No. 1 upon presentation of certificate lift the hold, consequent to which appellant obtained the delivery. Thereafter, the Officials of respondent No.1 framed contravention report and forwarded to ADC Law, who approved that and forwarded it to respondent No. 2, who issued show-cause notice dated 19.01.2015, with the allegation that the appellant is involved in mis-declaration of description, brand quantity, classification, value and non application of valuation ruling, resulting in loss of revenue of Rs.227,007.00/- and as such violated the provisions of Section 32 of the Customs Act, 1969, Section 33 of the Sales Tax Act, 1990 and section 148 of Income Tax Ordinance, 2001, which was replied by the appellant consultant vide letter dated 06.03.2015 on which respondent No. 2 sought comments from respondent No.1, upon receipt of which the consultant of the appellant submitted rebuttal dated 11.04.2015. The reply/rebuttal were not considered valid by respondent No. 2 and he passed order dated 27.07.2015 against the appellant. Paras 11 to 13 are relevant which are:--

"11. I have gone through the record of the case and perused verbal/written reply of the importer. The importer has allegedly mis-declared description, brand, quantity, classification and value of the impugned goods in order to suppress the correct value and leviable amount of duty and taxes thereon to the tune of Rs.227,007/-. This misdeclaration let to the establishment of contravention and show-cause notice was issued to the importer in reply to the same. Mr. Nadeem Ahmed Mirza Advocate from Nadeem and Company, appeared on behalf of the importer as well as the Clearing Agent and submitted detailed replies. The representative of the importer raised many objection regarding the contents of Show-Cause Notice, jurisdiction of the undersigned, legal lacunas in the exercise of jurisdiction by R&D etc. the objections raised by the representative of the importer are being discussed and addressed as detailed below:

(a)The first objection raised by the representative of the importer regarding the issuance of show-cause notice was that the show-cause notice has been issued without application of mind and on the basis of absurd opinion submitted by the R&D Section of MCC of Appraisement East. However, no discrepancy or legal infirmity was pointed out by the representative of the importer on the contents of Show-Cause Notice.

(b)In paras a, b and c of the reply with the Show-Cause Notice, the 1st ground taken by the representative of the importer that the subject goods were in the constructive possession of the Customs Authorities, whereby the same subject to seizure and sections 168 and 178 stand invoked, however, as the subject goods were still under the process of clearance after filing Goods Declaration, whereby discrepancy of description value and weight and value were found, the same were sent for adjudication after establishment of Contravention for violation of section 32 of the Customs Act, 1969. Consequently, the ground that the subject Show-Cause Notice was time barred as a result of seizure is also not maintainable.

(c)The representative of the importer objected to the jurisdiction of undersigned as per section 179 of the Customs Act, 1969, the objection of the representative of the importer is not maintainable as section 179 ibid. deals with adjudication whereby the cases are sent for adjudication involving cases where certain restriction, prohibition, evasion of duty and taxes etc have been violated. The duty and taxes already paid by the importer to the National Exchequer are not the subject matter of any adjudication proceedings.

(d)The representative of the importer raised objection (paras e and f) regarding jurisdiction of the Customs Officers for issuance of Show-Cause Notice in the cases involving evasion of Sales Tax and Income Tax. The objection of the importer is not maintainable as the subject goods were still lying at the port in Customs Area, whereby section 148 of the Income Tax Ordinance, and section 33 of the Sales Tax Act, 1990 empowers the Customs Authorities to collect sales tax and income tax as Customs Duty at import stage whereby their evasion leads to initiation of adjudication/recovery proceeding under the aforementioned provision of Law.

(e)The representative of the importer raised objection regarding jurisdiction for issuance of Show-Cause Notice, whereby the order of assessment has already been passed and R&D was not empowered to interfere. It is pointed out that the R&D Section is established in the Collectorate to check any evasion and to monitor the data of all imports whereby the same can check, intercept, examine and reassess Goods Declaration to save the legitimate state revenue. The concerned DC Group assessed the goods as per information uploaded by the importer, whereby the consignment was intercepted on the basis of credible information that the importer has furnished incorrect detail. The contention of the representative or importer that the subject goods has already been assessed by the appropriate officer and Collectorate should had filed an appeal before the Collector Appeal instead of taking cognizance by the R&D section of the concerned Collectorate specially empowers equipped and assigned to the job to check any discrepancy, fraud and mala fide attempt to evade legitimate government revenue does not bear weight and is rejected reply to the in addition to this, as long as the goods are in port area the same can be reassessed at any time for recovery of section 80(3) of the Customs Act, 1969.

(f)The representative of the importer further submitted that there was not misdeclaration of description and quantity and the PCT heading determined by the concerned group cannot be changed, however, the representative of the importer failed to produce any evidence/arguments to support his contention whereby it is established vide examination report submitted by R&D Section that the importer were found involved in misdeclaration of description and weight effecting the classification and value of the goods. The contention of the importer that no case for mis-declaration of value on the basis of valuation ruling can be made and PCT heading can be made is partially correct as it was, in principal the misdeclaration of description of goods which affected the value and classification of the goods. Neither goods can be classified nor assessed without proper description of the goods. The importer is already not coming with clean hands when he has already paid additional duty and taxes amounting to Rs. 910,953/- in addition to upfront payment of duty and taxes by the importer.

12.The representative of the importer raised identical objection in reply to the Show-Cause Notice submitted on behalf of the Clearing Agent. However, the objection raised by the representative of the importer; in order to established the charge leveled in the show-cause notice, it must be clearly established in the adjudication proceeding that the same were in connivance with the importer/exporter for committing the alleged tax evasion and misdeclaration. The representative of the importer argued that the Clearing Agent files Goods Declaration on the basis of the documents/information submitted by the importer /exporter and the same cannot be simply held responsible on his filing Goods Declaration. The perusal of the record and the documents submitted by the importer clearly reflect inaccurate detailed in the invoice, packing list provided by the importer led to the filing of incorrect detail and faulty description of the goods in Goods Declaration, whereby the Clearing Agent cannot be held responsible.; hence, mala fide and mens rea on the part of Clearing Agent is not established.

13.In the light of above discussion, the charges of misdeclaration of description, value, classification and quantity as leveled in the Show-Cause Notice stand established. However, as the goods have already been released on the direction of Hon'ble High Court of Sindh, Karachi no redemption fine as a consequence of confiscation can be imposed. However, a penalty of Rs.100,000/- is imposed under clauses 14 and 14A of section 156(1) of the Customs Act, 1969 on the importer. The Collectorate may approach the Nazir of the Hon'ble High Court of Sindh, Karachi for deposited pay order of duty/taxes. As far as the role of the Clearing Agent is concerned, mala fide and mens-rea on the part of importer could not be established; hence no penal action is warranted against the same.

3.The vires of the order was challenged before Respondent No.3 by the appellant vide Appeal No. Cus-7061/2015/A-East, who also vide his order dated 27.07.2015 rejected that by observing in paras 5 and 6 that:--

"5- I have examined the case record. The technical objection raised by appellant have already been adequately addressed in the adjudication orders. The appellant have tried to attribute release of the goods under order of Hon'ble Court as completion of assessment. The assessment was still open as the goods were in customs charge and the respondent were under lawful authority to re-assess the goods under section 80(3) of the Customs Act, 1969. Upon re-assessment the respondent found incorrect declaration to the extent of value, quantity and classification, therefore, show-cause notice under section 180 of the Act was issued to the appellants.

6- The respondent's action is in accordance with law. The adjudication order is without discrimination or bias. The appellant could not pick and choose assessment made on a particular date and refuse re-assessment while goods were still within custom charge. The appeal being without merit is rejected.

4.Being aggrieved and dissatisfied with the impugned Orders the appellants filed the instant appeal before this Tribunal on the grounds Mr. Nadeem Ahmed Mirza (Consultant) appeared and argued in line with those and are detailed here-in-under:--

(a)That Mr. Dost Muhammad Appraiser subordinate of respondent No.1, MCC of Appraisement-East put on hold on appellant consignment on 05.07.2012. Such hold amounts to notional seizure as held by High Court of Sindh in reported judgment 2003 PTD 2821 Syed Muhammad Razi v. Collector of Customs (Appraisement), Karachi and 2 others in the following words:--

"A careful consideration of section 168(1) and section 2(rr) leads to the conclusion that the word "possession" is not confined to the physical possession and is inclusive of constructive possession as well. We are further of the considered opinion that the seizure of goods cannot be confined to the cases where an order in writing in this behalf is made but is inclusive of notional seizure as well, meaning thereby, that if the customs officials have not passed any specific order in writing about the seizure of goods but has verbally given instructions or by his conduct has made the release for removal of goods under restraint thereby depriving to the owner of the goods of exercising all the incidents of the right had title and interest in the goods, it would also amount to seizure of goods within contemplation of section 168(2) of the Customs Act.

(b)That by virtue of notional seizure the provision contained in sections 171 and 168(1) of the Customs Act, 1969 comes into operation. Meaning thereby in the case of seizure of goods under section 168 the reason are to be recorded and notice under section 171 of the Customs Act, 1969 has to be served on the person from whose possession the things are seized .

(c)In the instant case no notice under sections 168(1) and 171 has been served on the appellant. Non serving the notice render the whole proceeding infested from legal infirmity and as such of no legal effect as held by Superior Judicial Fora in umpteenth reported judgment e.g. 1993 SCMR 311, 1983 PCr.LJ 620, 1983 PCr.LJ 623, 1983 CLC 786, PTCL 1983 CL 47(sic), 1987 PCr.LJ 1413, 1987 PCr.LJ 1091, 2004 PCr.LJ 1958.

(d)That in the case of seizure under section 168(1) of the Customs Act, 1969 a show-cause notice under section 180 of the Customs Act, 1969 by the authorities vested with the powers under section 179 ibid is also required to be issued within 2 months of the seizure of the goods subject to extension for further two months based on exceptional circumstances by the Collector of Customs after giving notice to the respective person as per law laid down by the Supreme Court of Pakistan in reported judgment 1999 SCMR 1881 Khalid Mahmood v. Collector of Customs, Custom House, Lahore and recording of those exceptional circumstances. Failing to which the owner or the person from whose possession they were seized earn a right for the return of the goods and the order/act of seizure become illegal and invalid.

(e)That the entire period of 4 months stood lapsed on 05.11.2014 from notional seizure dated 05.07.2014 and even from the order of the High Court of Sindh dated 24.07.2014. To the contrary, the show-cause notice by respondent No. 2 has been issued on 09.01.2015, rendering it time barred and as such without powers/jurisdiction, hence void and ab inito as held by Superior Court in umpteenth judgment e.g. 1998 MLD 650, 2005 PTD 23, 2003 PTD 2821 and 2007 PTD 2092.

(f)The expression of Section 179 of the Customs Act, 1969 is very clear in regards to determination of Adjudicating Authority on the basis of "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes". Which are Rs.904,362.00/- paid upfront on 18.06.2014 + paid Rs.530,979.00/- on 05.07.2014 in compliance of view message dated 05.07.2014 + the shown evaded amount of Rs.227,007.00/- in the show-cause notice). Meaning thereby that the involved amounts of duty and taxes is Rs. 1,662,348.00.00 in appellant case and the competent authority to adjudicate the said case under clause (ii) of section 179(1) is Additional Collector. To the contrary, respondent No. 2 issued the show-cause notice and passed order-in-original while usurping the powers of the Superior, which is not permitted under law. Rendering both suffers from lack of powers/jurisdiction, hence, ab-initio null and void and coram non judice as held in Order in Sales Tax Appeal No. 444/03, STA 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib) 1636

(g)That in the show-cause notice issued by the respondent No. 2 Section 33 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 have been invoked without realizing to the fact that Section 33 is not a charging section instead a penal synonymous to Section 156(1) of the Customs Act, 1969 and Section 148 is equally not a charging section instead inserted in the Ordinance empowering the officer of Customs, to collect the leviable Income Tax at import stage. No show-cause notice can be issued under the said sections, rendering the show-cause notice and order-in-original without power/jurisdiction, hence void ab-initio and of no legal effect as held in reported judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593, Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs.

(h)That even otherwise the respondent No. 2 is also not appointed as Officer of Inland Revenue under Section 30 of the Sales Tax Act, 1990 and Section 207 of the Income Tax Ordinance, 2001 and as such is not empowered to issue show-cause notice and pass order-in-original relating to matters of Sales Tax and Income Tax under Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. Hence, by issuing show-cause notice with the inclusion of amount of Sales Tax and Income Tax, the respondent No. 2 usurped the powers of Officer of Inland Revenue to which he is not vested, Rendering the show-cause notice and order-in-original being in flagrant violation of law and as such coram non-judice as held in Order in Sales Tax Appeal No. 444/03, S.T.A. 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636.

(i)The respondent No. 2 has invoked Section 32 of the Customs Act, 1969 as a whole, which is not permitted under law one has to be specific that which subsection of section 32 is applicable in the case. In the instant case the show-cause notice is silent in regards to the "deliberate act" of the appellant or connivance with the official of the Customs in getting the goods examined in accordance to his requirements and so the completion of assessment dated 05.07.2014 confirming that Section 32(2) is not applicable and the case of the appellant squarely falls within the ambit of inadvertence, error and mis-construction falling under the provision of section 32(3) of the Customs Act, 1969. The power to adjudicate cases under the provision of section 32(3) rests with the Principal Appraiser in terms of S.R.O., 371(I)/2002 dated 15.06.2002 and none else. To the contrary, the respondent No. 2 issued show-cause notice while transgressing the powers of the Principal Appraiser, which is not permitted under law, rendering the show-cause notice and passed order-in-original without power/jurisdiction, hence void ab-initio and coram non judice.

(j)The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law, the special provision shall prevails (reference is invited to the case of Lt. General (Retd.) Shah Rafi Alam v. Lahore Race Club, 2004 CLD 373. The power of adjudication, as already observed is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i.e. that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL 2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 and S.R.O. 371(I)/2002 dated 15.06.2002 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179 and notification S.R.O. 371(I)/2002 dated 15.06.2002. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case law on the point that where there is a conflict between two provision of the statutes, the later provision prevails and has to be given precedents (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587 is referred. Their lordship observed as 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 SC 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 and others v. Messrs 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".

(k)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 Messrs 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.

(l)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 is 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. Messrs 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-initio 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-initio, 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 renders the show-cause notice as well as Order-in-Original ab-initio, null and void by virtue of suffer of lack of power/ jurisdiction. Hence coram non judice and needs to be strike down.

(m)That prior to further commenting upon the legality of the show-cause notice and the order-in-original issued/passed by the respondent No. 2, it is adventitious to controvert the para 6 of the order-in-appeal passed by the respondent No. 3, wherein he opined that "the goods were still within the customs charge", which is nullity to the fact reference is placed to the view message dated 05.07.2014 through which the goods were allowed clearance and message to the gate staff was given for gate out of the consignment after passing valid assessment order and ground (vii) of Memo of Appeal, rendering the opinion formed as of no legal effect and as such void and likewise the order passed by him.

(n)That the fact of matter is that on conclusion of transaction, under the provision of sections 80 and 83 of the Customs Act, 1969 and rules 438 and 442 of Customs Rules, 2001. The order so passed under the said provision of the Act becomes appealable under Section 193 of the Customs Act, 1969 before Collector of Customs (Appeals) and the Deputy Collector of R&D or Group of MCC of Appraisement-East are empowered to do so. If they had any reservation against the passed assessment orders on 05.07.2014. The appropriate course of action was to assail the said order before the Collector of Customs Appeals. Which had not been done within the stipulated period and order so passed by the competent authority defined in Section 2(a) became final and that cannot be disturbed by any authority. To the contrary, the officials of R&D Cell of MCC of Appraisement-East detained, seized the goods which is not permitted under law.

(o)That upon filing of the appeal by Deputy Collector of Customs, R&D Cell or the Group of MCC of Appraisement-East before the Collector of Customs Appeals under Section 193 of the Customs Act, 1969 emanating the facts of the case and the relevant provision of law. Upon receipt of appeal in his office, it is mandated on the Collector of Customs, Appeals to go through the fact and ground of the appeal and thereafter if he think fit that in the case under adjudication correct duty and taxes have not been either not levied or short paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Customs Act, 1969 to the respondent and after receipt of reply to the said notice the Collector of Customs will decide the appeal in the light of the issued show-cause notice and reply. In the instant case no appeal has been filed by either Deputy Collector of Customs, R&D Cell or the Group of MCC of Appraisement-East despite mandated under law and respondent No. 2 issued show-cause notice and passed order-in-original while reopening the assessment order passed by the competent authority in exercise of the powers vested expressed in Section 195 of the Customs Act, 1969. Neither the Deputy Collector of Customs, R&D Cell of MCC of Appraisement-East, nor the respondent No. 2 are empowered to reopen the orders, both acted without power/jurisdiction, hence their action is without any lawful authority and as such ab-initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and others.

(p)That since the consignment in question had undergone the procedure of passing of assessment/clearance order by the appropriate officer in the capacity of adjudicating authority defined in Section 2(a) of the Customs Act, 1969 in exercise of the powers vested upon him under Section 80 and Rule 438 of Sub-Chapter-III of Chapter XXI of Customs Rules, 2001 and Notification No. 371(I)/2002 dated 15.06.2002 passed that after checking all the aspects and in consideration of the examination report, images attached and scanned documents in compliance of view message under Rule 437 ibid for levy of duty and taxes, which were paid by the appellant, consequent to which the authority defined in Section 83 of the Customs Act, 1969 passed Clearance Order. The official of R&D Cell, MCC of Appraisement-East detained the goods and later on seized and framed contravention report for adjudication under section 179 of the Customs Act, 1969 by respondent No. 2 for issuance of show-cause notice and subsequently passing of order-in-original which he did despite not permitted under law and in this way filed a fresh order on existing 02 orders. A single order has to remain in field at a time as held by the Hon'ble High Court of Sindh in reported judgments Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 held that "once an order is passed, which attains finality, the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order. This was held by the learned High Court to be in derogation of the principles of administration of justice" and 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and another in which it has been held that "1st order in original passed in the subject matter was an appealable order for both the parties therefore option to reopen an order passed under the adjudicating hierarchy was not available to the Collector,---Even the Collector of Customs Adjudication could not over see or exercise any right of reopening of an order, which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set aside" and are squarely applicable on appellant case.

(q)That it is also imperative to add further that assessment orders in the subject case have been passed by the competent authority on 05.07.2014 and the appeal against which could had been filed by either Deputy Collector of Customs, R&D Cell or the Group of MCC of Appraisement-East on or before 04.08.2014 but had not filed by either of them to date and the passed assessment orders attained finality and became closed and past transaction and cannot be disturbed or reopened by any authority or court as held in reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which no suo motu revision lay under the Act" and 2004 PTD 3020, Glaxo Smith Kline Pakistan Ltd, Karachi v. Collector of Customs, Sales Tax Central Excise, Karachi "that department could not re-agitate which had been decided against him---said order could be assailed in appeal or revisional proceedings, which in the present case were not initiated and therefore the same held the field and in the presence of earlier order another order contrary to the said earlier order could not be allowed to hold the field for the simple reason that two contrary orders could not exists at one and a same time"---in the light of the settled law the initial assessment order attained finality by virtue of expiry of stipulated period expressed in subsection (2) and as such hold field and no subsequent order on these to be allowed to be pile upon these as this is not permitted beside tantamount to double jeopardy barred under Article 13 of Constitution of Islamic Republic of Pakistan.

(r)Notwithstanding, to what has been stated above that no mis-declaration is visible, nor suppression or concealment of any sort as evident from the fact that the weight so declared is found correct, neither of description or any other sort. Instead the description and quantity has been changed by Mr. Dost Muhammad, Appraiser and an official of R&D according to his whims and wishes, which is not permitted under law and stood validated from reported judgment 1990 PTD 155 Edulji Dinshaw Ltd. v. Income Tax Officer, wherein their Lordship of the Supreme Court held that:--

"that the Income Tax Officer is seeking to reopen the passed assessment for the last 09 years under S.65 of the Ordinance acting beyond his jurisdiction because all material facts were already on record of the department his predecessor had held that the assessee was liable to be assessed as a property holding company i.e. accompany not carrying on the business of buying and selling properties there was no suppression or concealment of any facts but merely a change of opinion by the I.T.O., as to the inference to be drawn from the same facts, there was thus no legal basis for proceeding under S.65 of the Ordinance."

(s)The stance of the appellant stood validated from the fact that respondent No. 2 has not annexed any incriminating evidence with the show-cause notice that the appellant committed the act of mis-declaration or submitted a false statement attracting section 32 of the Customs Act, 1969. The entire case has been made out on the basis of presumption and assumption, hence is of no legal effect likewise the show-cause notice and order-in-original are too ambiguous and non speaking, resultant, fails the test of judicial scrutiny. Hence, void and ab-initio and ab-initio wrong.

(t)That as regard the mis-declaration of PCT heading i.e. also without any substance as the assessing officer completed the assessment after going through the examination report and images and consulting the Pakistan Customs Tariff and utilizing his wisdom, his determination of PCT heading cannot be disputed upon by the official of R&D Cell of MCC of Appraisement- East as they are not vested with the power of determination of PCT heading and this has been held countless time by the Superior Judicial Fora right from the case of Monno Industries Ltd. v. GOP corresponding to C.P. No. 199/1984 to Messrs Sadaat Khan FOP and others held in C.P. No D-5033/ 2013, the principle has been laid down that mentioning of erroneous PCT heading in the Goods Declaration or transmitting the same least fall under the ambit of mis-declaration. Reference is made to the reported judgment 2003 PTD (Trib.) 293 of the Customs Excise and Sales Tax Appellate Tribunal, Karachi Bench held in similar nature of case judgment:--

"We believe that clearing agents while filing a bill of entry is required to fill the PCT column for the easement and assistance of the Assessing Officer. The perusal of section 80 of the Customs Act, 1969, indicates that during the process of assessment it is the duty of the Assessing Officer not only to examine the goods but also to tally the description, its weight and value of the goods thereof, and to consider any extra information available on the bill of entry in order to arrive at a correct assessment of duty and taxes. Simply assuming that a wrong PCT heading amounts to mis-declaration would not be a correct approach to interpret section 32, where emphasis is on the word "material particular" which means something going to root cause of the basic declaration. To our mind, a mis-declaration in material particulars terms has not been made by the appellant."

In Customs Appeal No. K-333/06 Umme Kulsoom Trading Co. v. Collector of Customs Appeals and others. The Division Bench of Customs Tribunal did observe in the following terms:

"It is gathered from the record that only charge against the appellant is that he misquoted PCT heading for which he is being charged for mis-declaration within the frame work of Customs Law. It is now well-settled law that to constitute a criminal act an element of mens rea and intentional knowledge is necessary and the offending act must be one in which material particulars have been wrongly given or provided to the Customs authorities. It is evident from the record that in the goods declaration all the entries relating to description, quantity and nature of goods were found true and no charge has been framed against the appellant on that count. In such circumstances, alleging a charge of mis-declaration particularly on the basis of wrong classification heading does not constitute an offence within the framework of section 32 of the Customs Act, 1969 as there is no material falsity in the statement made by the appellant. In these circumstances, we would like to allow the appeal and set aside the impugned order as no case has been made out against him."

That the similar issue of classification was also decided vide Customs Appeal No. K-432 and others, which went up to the Apex Court and the order of the Tribunal passed were maintained in which it was held:--

"The difference of opinion with respect to classification does not fall within the mischief of section 32 of the Customs Act, 1969, the confiscation and imposition of penalty in this count, therefore ab-initio void and illegal."

The Hon'ble High Court of in reported judgment at 2002 MLD 1980 State Cement Corporation v. GOP held that

"if the wisdom of Customs Authorities for invoking section 32 for not giving correct declaration is acceded to and that no responsibility lays upon the hierarchy of the Customs officials to levy and assess the duty according to law. The provisions of section 80(1) of the Customs Act, 1969 in such a state of mind would become redundant."

In the same judgment the observation of Honourable (Late) Justice Sabihuddin Ahmed is worth reading as it ridicule the irrational approach of the Customs Authorities, in the following words:--

"We are rather amazed at the line of reasoning put forward to the effect that while an assessee is required to interpret the law and relevant notification correctly and could be held guilty of a penal offence for not doing so in terms of Section 32(1) of the Customs Act, no responsibility of any kind would devolve on the Customs officials, indicate that the entire exercise was mala fide"

The Hon'ble High Court of Sindh in the case of Messrs Sadaat Khan v. FOP and others held in C.P No D-5033/2013:

"It is settled 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."

(u)That no charge of mis-declaration of value can also be leveled on any importer or appellant on the basis of valuation ruling issued by the Director, Directorate General of Valuation under section 25A of the Customs Act, 1969, i.e. only for the purpose of assessment and neither on the basis of data maintained under Rule 110 of the period expressed in Rule 107(a) of Customs Rules, 2001. If that would had been the case, not a single consignment would had been cleared by any Collectorate because in every case the value is enhanced on the basis of Valuation Ruling or data without the charges of mis-declaration. Therefore, the charge of mis-declaration of value is without any substance and nullity to the provision of Act and existing practice and as such hold no ground.

(v)That even otherwise no charge of value mis-declaration can be leveled unless direct evidence of import is available which has to be supplied in support of allegation as per direction contained in para. 78 of CGO 12/2002 dated 15.06.2002. Thereafter in such like situation the difference should be more than 30% between declared and the evidence as directed in sub-para (3) of para 101 of CGO 12/2002 and Serial No. (d) of Notification No. SRO 499(I)/2009 dated 15.06.2009. In the instant case of appellant the allegation of value mis-declaration is on the basis of either Valuation Ruling or data or ascertaining of value unilaterally/ arbitrarily, which fall within the ambit of prohibited method expressed in Rule 110 of Customs Rules, 2001

(w)That as discussed above, it is confirmed without any shadow of doubt that section 32 can only be applied on the basis of documents delivered, furnished by the importer or the statement given by him before the customs authorities. The data maintained by the customs under Rule 110 of the period expressed in Rule 107(a) of the Customs Rules, 2001 or the Valuation Ruling issued by Director of Directorate General of Valuation under Section 25-A of the Customs Act, 1969 cannot be considered as documents furnished by an importer or reply in answer to the queries raised by the Customs Authorities by the importer and this stood validated from the prescribed form of the good declaration containing no column for declaring the applicable Valuation Ruling on the consignment under clearance. Therefore, no charge of mis-declaration can be leveled for any reason i.e. for assessment or adjudication purpose, hence invoking of section 32 by the respondent on the appellant and holding such charges as valid for imposition of fine and penalty is nothing more than an act of mala fide, high handedness and extortion, such act has never been appreciated by the Superior Judicial Fora being in violation of the statute and the dictum/principle laid down in plethora of reported judgments.

(x)That the stance of appellant stood endorsed by the reported judgment 2014 PTD (Trib.) 190 M/s. Shoaib Tayyab International v. Additional Collector of Customs, Karachi, which has been implemented and attain finality. The Hon'ble Member of the Bench held in clear terms that"

"The insertion of para 78 in CGO 12/2002 dated 15.06.2002 has been made on the basis of numerous reported judgment of the Superior Judicial Fora that for leveling allegation of mis-declaration of value, it is upon the department leveling the allegation to substantiate through an incriminating undisputable direct evidence in the shape of evidential invoice of the said product of the period expressed in Rule 107(a) of Customs Rules, 2001, re-validated by the Board through sub-para (3) of 101 and clause (d) of Notification No. SRO 499(I)/2009 dated 15.06.2009. No evidence has been produced by the respondent as directed in para 78 at any stage i.e. preparation of contravention report, during the adjudication proceeding or before the Tribunal, irrespective of the fact that for disputing the said value of the imported goods, it was mandated upon the official of MCC of PaCCS to transmit view messages under Sub-Rule (1) of Rule 109 of Chapter IX and 437 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 to the appellant for transmitting/scanning additional documents. On the contrary no such exercise was undertaken either of the officials, as evident from the fact that no copies of the transmitted view messages have been placed on record by them with the respondent and the Tribunal despite, shifting burden of proof. No decision was also communicated with grounds as enunciated in sub-rule (3) of Rule 109 confirming that no evidence was available with the official of MCC of PaCCS for leveling the charge of allegation. The department has miserably failed to discharge the onus of establishing that the price declared by the Appellants of the imported goods are not fair and been mis-declared within the meaning of Section 32 of the Customs Act, 1969 through concrete and positive evidence, rendering the allegation of value mis-declaration on the basis of arbitrary / unilateral determined value as positive evidence rather the said value is without any concrete and positive evidence and this cannot warrant a finding of falsity to the declaration in "material particular". Hence the charges of mis-declaration of value are declared to be unsubstantiated and as such of no legal effect, rendering the contravention report, show-cause notice and order-in-original as ab initio void. The same view has been taken by the Hon'ble Supreme Court of Pakistan and High Courts and Tribunal in judgments reported Customs Appeal No. K-249/ 2000/13372, Customs Appeal No. K-35/2002, Customs Appeal No. K-1670/ 2001, 2005 PTD (Trib) 617, 1668/LB and 1669/LB of 2002, Customs Appeal No. K-1281/05, 1986 MLD 790 Karachi PLD 1996 Karachi 68, 2006 PTD 909, 2002 PTD 2957, 2007 SCMR 1357 = 2007 PTD 1858, 2008 SCMR 438, 1992 SCMR 1083, 2008 PTD 1250 and 2008 SCMR 438".

"The Tribunal also observed that the field formations level no charges of mis-declaration on the importer when the officials complete the assessment of the consignment on the basis of Valuation Ruling issued by Directorate General of Valuation under section 25A of the Customs Act, 1969. This is so because of the fact that value of the goods is to be assessed as per Valuation Ruling in field and vogue irrespectively of the value declared. The Valuation Ruling can only be over ruled where there is an evidence of higher value undisputed as per legal mechanism provided there-under. By virtue of the fact that proving of charge of mis-declaration of value needs high standard of proof, a direct evidence not the valuation ruling, or the value of identical/similar goods available in the data . Additionally, in case of leveling charges of mis-declaration of value on each importer based on valuation ruling or identical/ similar assessed value (instead of import) in the data, not a single consignment would had been cleared by any field formation in Pakistan and their job would had been only to frame contravention reports, adjudicating authorities would had been piled with the cases and the port/dry port would had been chocked to their capacity due to non timely clearance of consignments. The Tribunal failed to digest the wisdom of respondent shown in the order which on one hand ordered completion of the assessment of the appellant consignment @ US$. 1.62/kg on the basis of Valuation ruling No. 481/2012 dated 24.10.2012, whereas, on the other hand holding the appellant guilty of mis-declaration of value and imposition of a fine on the appellant @ 35% while completely ignoring the fact that the goods declaration contain no column for giving declaration to the fact of valuation ruling, provision of section 32 of the Customs Act, 1969, direction of the Board contained in para 78 and Sub-para (3) of para 101 of CGO 12/ 2002 dated 15.06.2002 and clause (d) of notification No S.R.O.466(I)/2009 dated 15.06.2009. Thus rendering, the charge of mis-declaration of value without any substance and nullity to the provision of Act and Rules and regulation framed there-under and existing practice in vogue within the field formations."

"In view of the forgoing discussion we hold that the impugned order as well as proceedings held in hierarchy of the respondent department are patently infested with legal and factual impropriety and therefore are to be null and void. The appeal is allowed as no order to cost.".

(y)That Mr. Dost Muhammad Appraiser, a subordinate of respondents Nos. 1 and 2 as bracketed certain appellant goods while changing their description for levying additional customs duty at the rate of 15% in terms of Appendix-I of Notification No. 693(I)/2006 dated 01.07.2006, while ignoring the fact that the goods imported and cleared by the competent authority were not those instead different and identifiable and were falling within the ambit of declared PCT's not the ascertained and to prove the said fact the respective notification and pages of the Tariff containing the declared and ascertained PCT are annexed for perusal.

(z)That it is appropriate for the appellant to add further for the sake of clarity that the appellant goods were rightly falling under the declared PCT's and on which no regulatory duty was payable under Notification No.693(I)/2006 dated 01.07.2006 as it is settled proposition of law that nothing can be added or subtracted to suit 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 Messrs Fazal Ellahi v. Additional Collector of Customs, 2011 PTD (Trib.) 79. 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 gives 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.

(aa)The appellant also felt imperative to offer comment on the opinion of the respondent No. 2 given in page 28 of the order, for justification for taking into consideration by the Hon'ble Appellate Tribunal for reaching as judicious decision:

(i) The statement made in (c) is devoid of the fact as upfront duty and taxes are integral part of the leviable duty and taxes on the consignment and for assuming the jurisdiction the adjudicating authority has to take into consideration the said amount. Not the alleged evaded amount as expressed in section 179 of the Customs Act, 1969. Even otherwise the case in question is not of a Post Clearance Audit rendering the opinion.

(ii) The submission made in para (d) is also contrary to the fact as show-cause notice has been issued after release of the consignment, meaning thereby that the goods are not lying in the Port/Terminal, resultant, for recovery of Sales Tax and Income Tax the respondent No. 2 has no power to adjudicate the case for recovery of the Sales Tax and Income Tax and that also under the provision of the Section 33 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 and this has been deliberated by the appellant in para supra, wherein authority for recovery of Sales Tax /Income Tax has been challenged.

(iii) The respondent No. 2 in para (e) has made a sweeping statement of establishing the charges as against the fact that he miserably failed to prove the charge of misdeclaration in any aspect. Instead he relied upon the opinion of Mr. Dost Muhammad Appraiser, which is based on surmises and presumptions and hold no grounds as discussed in paras supra.

(iv) That it is also erroneous on the part of the respondent No. 2 that the goods were released on the order of the High Court of Sindh based on the merit of the case. In fact the Hon'ble High Court of Sindh has issued no order instead provide relief to the appellant to the extent of delivery of the goods after depositing the differential amount of the worked out duty and taxes of the appellant which has under gone the process of assessment/clearance order by the competent authority defined in section 2(a) of the Customs Act, 1969.

(v)It is also erroneous on the part of the respondent No. 2 to hold that it is upon the appellant to produce any evidence in support of his declaration, which is infact correct, hence no question arise for submitting of any evidence. It is settled proposition of law that the onus lies on the person leveling the allegation and not on the person on whom allegation has been leveled . In the case of the appellant the respondent miserably failed to prove the allegation, stood validated from the submission made by the appellant in the grounds referred in paras supras.

(bb)That as regards to the observation given by the respondent No. 3 in para 5 of the order by the respondent No.3 that the appellant has raised technical objection and which are said to be addressed by the respondent No. 2, the same is nullity to the law laid down by the Superior Judicial Fora that non adherence of the provision of the statute is not a technical defect instead, it is fatal and entails the entire case to crumble down. Reference is placed to the reported judgment 2002 PTD 2457, wherein it has been held that " the thing should be done as they are required to be done, or not at all" and likewise the Apex Court held in judgment PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner". In PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A. Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted.". The super structure built on such foundation no matter how strong it is has to fall. Refer to PLD 1996 Karachi 68, which laid down that " where the initial order or notice was void all subsequent proceedings, orders or super structure built on it were also void. In reported judgment 2006 PTD 978 it is held that "the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The Apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---all successive orders based upon it illegal and liable to be quashed". In the light of law laid down, the contravention report prepared by the respondent No. 1 and show-cause notice/order-in-original/appeals issued/passed by respondents Nos. 2 and 3 are ab-initio, illegal and void and needs to be struck down as of no legal effect.

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

5.No cross objection under subsection (4) of section 194-A of the Customs Act, 1969 has been submitted by the either of the respondents to this date, nor any comments. However, the representative of the respondent during the course of hearing stated that the grounds advanced by the appellant consultant/advocate are irrelevant and so he relied upon judgment, which may be ignored and the orders passed by the hierarchy of customs be maintained being correct in facts and law:--

Para (a):-This contents of para (a) of the "grounds" are patently incorrect hence, vehemently denied. Accordingly to the appellants' own statement as well as the GD's WeBOC Log, the Group's assessment was based on the Shed's examination report coupled with the appellant, supplied packing lists dated 28.04.2014 not reflecting correct picture of the impugned goods. Moreover, being guilty, conscious, the appellant avoided to arrange detailed examination by the R&D Team rather opted to filed firstly a Suit No. 1030/2014 and secondly a C.P. No. D-3791/2014 with the Honourable High Court of Sindh to skip R&D detailed examination as well as to get the consignment released without payment of actually payable amount of Government revenue and/adjudication of the case as warranted by the law. In pursuance of the Honourble Courts order dated 04.07.2014 and 24.07.2014 the consignment detailed examination by R&D's Team could be possible besides deposit of evaded revenue with the Nazir of the Court as well as initiation of instant adjudication proceedings against the appellant. The appellant have failed to give any cogent reason/answer as to why they were avoiding lawful detailed examination of the consignment by the R&D's Team and facing adjudication proceedings for their detected gross mis-declaration? Actual facts are that during that period their only effort was to skip from R&D detailed examination, payment of leviable duties and taxes and adjudication proceedings as warranted under the law due to their wrong self assessment and mis-declaration of certain particulars of the impugned goods. It is pertinent to mention here that the law citation 2003 PTD 2821 is distinguishable on facts and law thus, the same is not applicable on the appellant case as mutatis mutandis. The GD involved in the cited case pertained to the period when there was no computerized system of Chapter XVI-A of the Customs Act, 1969, whereas the appellant subject GD has been filed under WeBOC System where every processing action is available on in-box/screen of the importer. In the cited case, the importer (Syed Muhammad Razi) had no information as to why his GD was detained whereas in the instant case the GD was under process for correct assessment the proceedings of which were very well available on the in Box Screen of the importers and also due to their own willful attempts action to avoid delay processing of the case as aforesaid without prejudice to the above the Honourable High Court of Sindh in the reported judgment Collector of Customs v. Mazzarul Islam (2011 PTD 2577) held that even it there was is seizure of Section 168 of the Act in that case too there is no bar for issuance of show-cause notice for contravention of section 32 of the Act, within the time period specified in Section 32 of the Act.

Paras-(b), (c) and (d): That in the light of submission made above contents of paras (b, c and d) of the "Grounds" require no further comments hence denied. It is further submitted that the show-cause notice has been issued for violation of section 32 of the Act and allied provisions of law for imposition of penalty and confiscation of the impugned goods thus the show-cause notice has been issued as per powers conferred under Section 180 of the Act as such the provisions of Section 168 of the Act have no overriding effect on sections 32 and 180 of the Act. Hence, the case law cited by the appellant is irrelevant in this case.

Para (e): That in the light of submission made above and in the presence of the aforesaid latest judgment of the Honourable Court (2011 PTD 2577), the judgment cited by the appellant are not applicable. Even otherwise it is not a case of seizure of Section 168 or 171 of the act rather it was is a case where the GD was under process, thus the contents of para (e) of the "Grounds" are incorrect hence vehemently denied.

Para (f): That in the light of the submission made above, contents of para (f) of the "Grounds" are patently incorrect hence, vehemently denied. It is very much clear from the contents of the show-cause notice and adjudication process in the instant case has been started for the attempted evasion of Rs. 227007/- and recovery thereof, thus according to the provision of Section 79(1) of the Act, the revenue involved for adjudication is Rs. 227,007/- and not Rs. 1662348/- as mis-interpreted by the appellant's without prejudice to the above and even otherwise, the appellants are aggrieved only to the interception of R&D's team, who arranged holding of the consignment's clearance and detected reported evasion of Rs. 227,007/-. It is also an admitted fact that the appellant were aggrieved neither with the up-front payment of Rs. 907,362/- under Section 79(1) (b) of the Act, as part of declaration, nor from the payment of additional duty and taxes to the tune of Rs. 530,969/- made on the basis of Assessing Officers first propose assessment, thus, both these amount were not added for the adjudication purposes and show-cause notice has been issued just for the attempted evaded amount of Rs. 227,007/- and recovery thereof, detecting during its investigation/interception by R&D's Team.

Para (g) : That the show-cause notice has primarily being issued for the attempted evasion of Rs. 227,007/- and recovery thereof, which attracts provision of sections 32(2) and 32(a) of the Act and corresponding penal provision of the said offences are clauses (14) and 14(A) of Section 156(1) of the Act, therefore, considering spirit of Section 6 of the Sales Tax Act, 1990 and sections 148(5) and 148(6) of the Income Tax Ordinance, 2001, the contents of para (d) of the "Grounds" regarding jurisdiction are totally incorrect, hence, denied.

Para (h) : that in the light of the submission made above the contents of para (h) of the grounds are incorrect hence denied.

Para (i) that in the light of the submission made above the contents of para (i) of the grounds are incorrect hence vehemently denied.

Para (j) : that the facts and circumstance of the case are proving that the instant case has been initiated against the appellants in terms of special provision of law i.e. Customs Act, 1969. Hence, the law citation is not applicable in this case.

Para (k) : that the facts and circumstance of the case are proving that the contents of para (k) of the "Grounds" are incorrect, hence, denied. The show-cause notice has been rightly issued in terms of section 179(1) read with Section 180 of the act. The learned consultant, could not advanced any cogent arguments in support of their contention that the SCN has been issued to them without application of mind by the adjudicating authority. Hence, the law citation is irrelevant in this case.

Para (l): that in the light of the submission made above the contents of para (l) of the grounds are incorrect, hence denied.

Para (m): that in the light of the submission made above the contents of para (m) of the grounds are incorrect, hence denied. As evident from the "View message dated 05.07.2014" it itself confirms that as per WeBOC system after payment of "additional duty/taxes", the bank's User ID has automatically forwarded the GD to "Gate out Customs Staff " for final checking before release of the goods. The by default remarks of "GD send to Gate Out Staff for checking out", themselves confirms that the proceeding of final checking in terms of Section 83 read with section 80(2) of the Customs Act, 1969 was still to go, therefore, the appellants

Para (n): That considering the law settled by the Hon'ble High Court of Sindh in the case of Messrs Lever Brothers Pakistan Ltd v. Customs Sales Tax and Central Excise Appellate Tribunal and another (2005 PTD 2462) the provision of Section 32 of the Act can be invoked within the time period specified therein. The provision of sections 195 and 193 of the Act have no over-riding effect on section 32 of the Act, infact all these provisions of law have their independent areas of jurisdiction. For the arguments, sake if the appellants' contention is stated as correct than the provision of section 32 of the Act become redundant and no notice can be issued after 30 days. However, it is settled law that no provision of the law can be construed as redundant.

Para (o): In the light of the submission made above and the facts and circumstances of the case the contents of para (o) of the "Grounds" are incorrect hence denied. It is however, respectfully submitted that the facts and circumstances of the cited case are different than the case of appellant and further that judgment (2014 PTD 1256) cited by the appellant has already been assailed before the Hon'ble Supreme Court vide Civil Appeal No. CPLA 195-K/2014 and the matter is presently sub-judice for final decision after leave to appeal granted to the department.

Para (p): that in the light of the submission made above the contents of para (p) of the "Grounds" are incorrect, hence vehemently denied.

Para (q): that in the light of the submission made above the contents of para (q) of the "Grounds" are incorrect, hence vehemently denied. The law citation has no relevance in the instant case of gross misdeclaration.

Paras (r and s): that in the light of the submission made above the contents of para (r and s) of the "Grounds" are incorrect, hence vehemently denied.

Para (t): that in the light of the submission made above the contents of para (t) of the "Grounds" are incorrect, hence denied. Further in the presence of amended provision of law and the aforesaid reported judgment the citation quoted by the appellants' are not applicable.

Para (u): that in the presence of change law for WeBOC Computerized Assessment System, promulgated in terms of Chapter XVI-A of the Act read with 79(1) (b) and 32(1)(c) of the Act as well as law settled by the Hon'ble High Court in the case of Messrs Gold Trade Impex and others v. Appellate Tribunal and others (2012 PTD 377) the contents of para (u) of the "Grounds" are incorrect, hence vehemently denied.

Para (v): the less declaration of value of the goods knowingly, by way of mis-declaring, description brand and classification etc. thereof, un-doubtly attracts the provisions of sections 32(1)(c) and 79(1) (c) of the Act, thus the contents of para (v) of the "Grounds" are incorrect, hence denied.

Para (w) : that in the light of the submission made above the contents of para (w) of the "Grounds" are incorrect, hence vehemently denied. The appellant has accepted that section 32 can be invoked if faults documents/information are delivered/ furnished to the Customs by the importer/appellant. It is an admitted fact that the appellant have uploaded/fed and invoice and data into WeBOC System which have been proved to be false and concocted ones in the light of the detailed examination report dated 07.08.2014 coupled with ONO and ONA. Hence, the appellants have committed an offence in terms of sections 32 and 32A of the Customs Act, 1969.

Para (x) : that in the light of the submission made above the contents of para (x) of the "Grounds" are incorrect, hence vehemently denied. The provision of CGO have no over-riding effect on the amended provision of law i.e. Customs Act, 1969 for computerized system. Furthermore, the orders of the Tribunal are Orders-in-Persona, which have no force of law for the purpose of general implementation.

Para (y) : that in the light of the submission made above the contents of para (y) of the "Grounds" are incorrect, hence denied.

Para (z) : that in the light of the submission made above the contents of para (z) of the "Grounds" are incorrect, hence denied.

Para (aa) : that in the light of the submission made above the contents of para (aa) of the "Grounds" are incorrect, hence denied.

Para (bb) : that in the light of the submission made above the contents of para (bb) of the "Grounds" are incorrect, hence denied.

Para (cc) : no comments.

6.Rival parties heard and case record and relied upon citations.

7.That prior to dilating upon the powers/jurisdiction of respondents Nos.1 and 2 and the merit of the case, it is felt beneficial to determine the issue of putting an hold for detention on the consignment, which had undergone the process of passing of assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by the subordinates of respondent No.1 under the provision of Section 186 of the Act. Under the said section a consignment of an importer can be detained after payment of leviable duty and taxes and order of clearance by the authority defined in the said section or S.R.O 371(I)/2002 dated 15.06.2002, if any adjudication order against the said importer is in field and wherein fine/ penalty have been imposed upon him and which he has not paid or in a case wherein contravention report has been framed in an under clearance consignment, for adjudication by the competent authority defined in Section 179 ibid. for imposition of fine or penalty. In the absence of availability of both the referred conditions, consignment of any importer cannot be detained under Section 186 of the Act. In the case under consideration no such order is available, wherein adjudicating authority imposed any fine or penalty on the appellant, nor any contravention report was prepared for the purpose of adjudication, prior to passing of assessment/clearance order under the respective Provisions of the Act/Rules. To the contrary the consignment of the appellant has been put on hold/detained under Section 186 of the Act by the respondent No. 1, after passing of valid assessment/clearance order by the authority defined in Section 2(a) of the Act in exercise of the powers conferred upon him through Notification No. 371(I)/2002 dated 15.06.2002, on the premise that the declared description, weight, brand, PCT heading and value are not relevant with the found goods. Detention on the said pretext is not permissible under the provision of Section 186 of the Act by the officials of respondent No. 1 or any other authority being in derogation to the expression of section 186 ibid and this stood validated from the judgment 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 03 others, wherein it has been held "authorities could detained such goods in respect of which inquiry or investigation was pending and not the goods which had been or were been imported by a person. The subsequent imported goods belonging to a same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remained un-paid. By no stretch of imagination all subsequent import can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In our opinion no such action is permitted under this provision. The respondent are only authorized to take action for issuance of detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against the person. The procedure and mechanism provided Section 202 of the CA 1969 is entirely independent of any action taken in terms of Section 186 of the Act. It is not the case of respondent that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's or even the goods covered by the instant petition and thereafter detention notices have been issued. With this the Hon'ble High Court of Sindh declared the detention of the consignment without lawful authority by holding that provision of Section 186 of the Customs Act, 1969 did not empowers the authority to do so" and in 2015 PTD 560 Messrs O.S. Corporation v. FOP and others, that that "where no fine or penalty has been imposed or is even under consideration the provision of Section 186 are not relevant" .. and "the authorities acting on a hunch have detained goods at the exit gates even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totally contrary to the provision of the Act 1969." By gaining strength from the expression of Section 186 and the law laid down, therefore, I, declare that nor respondent No. 1 or his subordinate were empowered either to put an hold or detain the subject consignment of the appellant.

8.The container of the appellant was put an hold/detained on 05.07.2014 this hold/ detention falls within the ambit of notional seizure and provision of Section 168(1) applies with full force as interpreted and held by the Hon'ble High Court of Sindh in reported judgment 2003 PTD 2821 Syed Muhammad Razi v. Collector of Customs (Appraisement), Karachi and 2 others that "A careful consideration of section 168(1) and section 2(rr) leads to the conclusion that the word "possession" is not confined to the physical possession and is inclusive of constructive possession as well. We are further of the considered opinion that the seizure of goods cannot be confined to the cases where an order in writing in this behalf is made but is inclusive of notional seizure as well, meaning thereby, that if the customs officials has not passed any specific order in writing about the seizure of goods but has verbally given instructions or by his conduct has made the release for removal of goods under restraint thereby depriving to the owner of the goods of exercising all the incidents of the right had title and interest in the goods, it would also amount to seizure of goods within contemplation of section 168(2) of the Customs Act." Since, detention which is notional seizure has been made by the respondent No. 1 on 05.07.2014, show-cause notice was mandated to be issued by the respondent No. 2 on or before 04.09.2014. To the contrary, it has been issued on 09.01.2015 after the expiry of entire period of 04 months, without any extension by the Collector prior to expiry of initial period of 02 months i.e. 04.09.2014 after serving a notice to the person concerned and thereafter recording of exceptional circumstances as held in reported judgment 1999 SCMR 1881 Khalid Mahmood v. Collector of Customs, Customs House, Lahore. The record is silent in this regard, which means that no extension was given and this was due to the fact that no exceptional circumstances were available. Resultant, show-cause notice dated 09.01.2015 barred by time by 128 days and as such without power/jurisdiction and lawful authority, hence, void ab initio and not enforceable under law and this has been held by the Superior Judicial Fora in unequivocal terms in reported judgments referred by the appellant in the ground incorporated in para 4(c to e) supra.

9.The Section 179 of the Customs Act, 1969 expressed that the powers of adjudication has to be determined by the authority on the basis of "amount of duty and taxes involved excluding the conveyance not evaded". In the instant case the amount of duty and taxes involved are Rs.1662348/- (paid upfront duty and taxes of Rs. 904,362/- + paid on 18.06.2014 as additional amount of duty and taxes of Rs. 530,979/- + shown amount of duty and taxes in show-cause notice Rs. 227,007/-), case of such amount falls within the powers of Additional Collector. To the contrary, the respondent No. 2 issued show-cause notice and passed order-in-original by usurping the powers of Additional Collector, which is not permitted under law and for assuming the powers the respondent representative in the arguments and comments has stated that the show-cause notice is for the evaded/short paid amount, which falls within the jurisdiction of respondent No. 2. The said arguments is not valid as determination of powers by the authority are to be on the basis of amount of duty and taxes involved, and the show-cause notice is mandatorily to be issued by the authority under whom powers the amount involved falls and it is for him to incorporate in the show-cause notice the amount already paid and the disputed/evaded one because while deciding the case he has to take into consideration the disputed amount of duty and taxes for imposing redemption fine on the strength of the said amount, not on the value on which the said difference has been worked out, under Notification No. 499(I)/2009 dated 13.06.2009. Therefore, the case in question falls within the powers of Additional Collector, which respondent No. 2 exercised by transgressing nobody is allowed to usurp the powers of the defined Adjudicating Authority. Rendering the act of issuance of show-cause notice and passing of order-in-original in the instant case without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517, PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, PLJ 2003 (sic) 1660, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court (sic), PLD 2005 Supreme Court 842, 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636,, 2011 PTD (Trib.) 2114, 2011 PTD (Trib.) 2557 and PLD 2014 Supreme Court 514. (Emphasis supplied)

10.It has also been noted by us that the respondent No. 2 in the show-cause notice has invoked the provision of Section 33 of the Sales Tax Act, 1990 without realizing that the said section contains penal clauses for imposition of penalty upon contravention of the respective applicable charging Sections of the Sales Tax Act, 1990 through an adjudication order meaning thereby it is a machinery section synonymous to the provision of Section 156 (1) of the Customs Act, 1969. Likewise invoked Section 148 of the Income Tax Ordinance, 2001 is also a machinery section empowering the Customs Authorities to collect leviable income tax on imported goods as like custom duty on the value determined under Section 25 of the Act. No show-cause notice can be issued under these sections, issuance of show-cause notice on the basis of irrelevant sections, renders the show-cause notice void ab initio and of no legal effect as held in reported judgment judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593 (Lah), Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs.

11. Notwithstanding, as contended by the Consultant/ Advocate of the appellant that the respondent No. 2 has no mandate to issue show-cause notice in the matter of Sales Tax/Income Tax. For veracity of that we have perused the provision of Section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 and observed that respondent No. 2 has not been appointed as an Officer of Inland Revenue under these Sections. Resultant, he is not empowered to exercise the powers under the charging Section 11 of the Sales Tax Act,1990 and Section 162 (1) of the Income Tax Ordinance, 2001, which empowers Officer of Inland Revenue /Commissioner of Income Tax, under no circumstances he was empowered to lay hands in the matter of sales tax and income tax. Resultant, initiation of adjudication proceeding for recovery of short collected/paid Sales Tax/ Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. He assumed the powers not vested with him, rendering the show-cause notice and order-in-original without powers/jurisdiction and lawful authority and as such coram non judice as held in reported/unreported judgments 2010 PTD (Trib.) 2086 Messrs Global Marketing Services and another v. Model Customs Collectorate and another, 2004 PTD 801 Al-Haaj Industrial Corporation (Pvt.) Ltd., Peshawar v. Collector of Customs (Appraisement), C.P. No. D-216/2013 Messrs Lucky Cement Ltd. v. Federation of Pakistan and others, 2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others, 2015 PTD 702 Muhammad Measum and others v. FOP and 2 others.

The opinion formed by me also have the validation of the judgment reported at 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23 and in 2007 PTD 250 titled as Collector of Sales Tax and Federal Excise v. Messrs Qasim International Container Terminal Pakistan Ltd., wherein it has been held that "There is a clear distinction between the charging provision of Statute and the machinery part thereof. It is axiomatic that mode of manner of recovery does not alter, the nature of tax nor a tax can be introduced or imported by implication." In 2008 PTD 1973 Xen Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax, Faisalabad, for clarity of the Rule of Interpretation of Statute, golden principle was outlined in so many words reading as "That fiscal law is to be applied with full authority and its natural meaning-one has to look merely at what is clearly said and there is no room for any intendment--neither there is equity about a tax nor presumptions as to tax--nothing is to be read in, nothing is to be implied -- one can only look fairly at the language used" The Hon'ble Supreme Court of Pakistan in reported judgment 2006 SCMR 129 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others held that:--

"If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted---each and every words appearing in a Section is to be given effect and no other word is to be rendered as redundant or surplus---when the legislature required the doing of a thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred---if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expressum facit cessare tacitum"

I, therefore hold that the exercise of jurisdiction on this point by the respondent No. 2 is also without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of order-in-original are ab-initio void in addition to the order passed by respondent No. 3.

12.Upon passing of assessment order under Section 80 and Rule 438 of the Act/Rules and thereafter passing of clearance order under section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Act and Notification No. 371(I)/2001 dated 15.06.2001, it cannot be disturbed by any authority including respondents Nos. 1 and 3 for preparing contravention report for adjudication proceeding, which respondent No. 1 did on the strength of which respondent No. 2 issued show-cause notice and passed order-in-original. The only course available under law for the respondent No. 1 was to challenge the assessment order dated 05.07.2014 before the Collector of Customs (Appeals) under section 193 of the Act in exercise of the powers delegated upon them. In the filed appeal the respondent No. 1 is empowered to incorporate all the apprehension, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, upon receipt of the appeal and going through the facts and grounds if thinks fit that the contention of the respondent No. 1 seems to be correct and the duty and taxes have not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show-cause notice to the importer (appellant) as expressed in 2nd proviso to the subsection (3) of section 193A of the Act. Instead of the adhering the prescribed method available in the Act the respondents Nos. 1 to 2 reopened the assessment/clearance order under section 195 of the Act under which no powers are vested either of the respondents i.e. 1 to 2. When the right of appeal has been accorded by the legislature in the provision of Section 193 of the Act, the provision of Section 195 is un-operational and cannot be exercised even by the authority defined therein and this has been validated by the Hon'ble High Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that " department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of Additional Collector could prefer an appeal before the Collector (Appeal)---1st order in original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set-aside and Constitution Petition was allowed." The plea taken by the respondent that the Hon'ble Supreme Court of Pakistan has allowed leave to appeal against the order of the High Court is based on falsehood as no leave to appeal was granted, instead was refused and petition was dismissed.

13.It is also settled proposition of law that in the presence of an appealable order, fresh order cannot be passed even in the shape of reassessment order or through issuance of show-cause notice under section 180, while exercising powers under the provision of Section 179 ibid. These act is piling upon multiple orders on the existing appealable order not permitted under law as held by Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 Messrs Smith Kline French v. Pakistan that "once an order is passed, which attain finality the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order". By virtue of non filing of appeal against the assessment order dated 05.07.2014 as elaborated above by the respondent No. 1 on or before 04.08.2014. The transaction stood past and closed and attain finality and cannot be disturbed. For reaching at the decision we have gained strength from the reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue, wherein their lordship of High Court held that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that has attained finality, under the Sea Customs Act, 1878 and against which suo motu revision." Beside, the act of issuance of show-cause notice and passing of order-in-original by respondent No. 2 falls under the ambit of "double jeopardy" not permitted under Article 13 of the Constitution of Islamic Republic of Pakistan. Rendering the order dated 06.05.2015 passed by respondent No. 2 and order dated 27.07.2015 by respondent No. 3 for piling upon an existing appealable order are without lawful authority and jurisdiction and as such void ab initio and of no legal effect.

14.In regards to the allegation of mis-declaration as stated in show-cause notice, I have examined the import documents, examination reports and the assessment order dated 05.07.2014 and show-cause notice dated 09.01.2015 and have observed that no mis-declaration of quantity, quality, weight for alleged PCT or value are visible as the weight in both the examination report, assessment order and show-cause notice is one and the same, the difference is in description, PCT and value, which the official of respondent No. 1 changed in accordance to his biased opinion, having no nexus with the fact of the case, instead only for the purpose of justifying the illegal act of detention after passing of clearance order, which is not permitted under law as deliberated in para supra and the law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment 1990 PTD 155 Edulji Dinshaw Ltd. v. Income Tax Officer that "The Income Tax Officer is seeking to reopen the passed assessment for the last 09 years under section 65 of the Ordinance acting beyond his jurisdiction because all material facts were already on record of the department his predecessor had held that the assessee was liable to be assessed as a property holding company i.e. accompany not carrying on the business of buying and selling properties there was no suppression or concealment of any facts but merely a change of opinion by the I.T.O., as to the inference to be drawn from the same facts, there was thus no legal basis for proceeding under section 65 of the Ordinance." It has also been observed by me that the officials of the respondent No. 1 was extra enthusiastic in dealing the instant case and this stood validated from the fact that while changing the description of the goods, he did in such a manner that those should falls under the ambit of Appendix-I of the Notification No. 693(I)/2006 dated 01.07.2006, on which additional customs duty @ 15% is payable and while doing so he ignored the fact that the goods least fall under the said Appendix being different and identifiable, which the appropriate authority identified at the time of passing assessment order dated 05.11.2014 in the light of respective PCT heading of the goods available in 1st Schedule to the Customs Act, 1969, after perusing those and the Appendix-I of the notification No. 693(I)/2006 dated 01.07.2006, we are in agreement with the authority, who passed assessment order dated 05.07.2014 that the goods of the appellant were as found in examination report and assessed by him under the PCT and value found correct by him. No goods can be stretched beyond their description only for the purpose of squeezing duty and taxes in spite not leviable because it is settled proposition of law 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 judgments starting from Abbassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463 to Messrs Fazal Ellahi v. Additional Collector of Customs, 2011 PTD (Trib.) 79. 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".

"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.

15.In the light of above deliberation and adhering the ratio decidendi set-forth by the judicial fora, I, hold that the preparation of contravention report by respondent No. 1 and issuing/passing of show-cause notice/Order-in-Original by respondent No. 2 and order-in-appeal by respondent No. 3 are ab initio, illegal and void and as such is of no legal effect. Therefore, I, annul those and set aside orders dated 06.05.2015 and 27.07.2015 passed by respondents Nos. 2 and 3 and allow the appeal.

16.Order passed and announced accordingly.

HBT/15/Tax(Trib.) Appeal allowed.