SUNRISE CORPORATION VS DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION-FBR, 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 244 (2016)

2017 PTD (Trib.) 244

[Customs Appellate Tribunal]

Before Tahir Zia, Member Judicial-II

Messrs SUNRISE CORPORATION

Versus

DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION-FBR and 3 others

Customs Appeal No.K-1333 of 2015, decided on 30/08/2016.

Customs Act (IV of 1969)---

----Ss.32, 79, 80, 83, 158, 171, 179, 180, 186, 194-A & 156(1)(4)(45)---Customs Rules, 2001, Rr.433, 435, 438 & 442---S.R.O. No.486(I)/ 2007, dated 9-6-2007---S.R.O. No.371(I)/2002, dated 15-6-2002---Misdeclaration---Confiscation of imported goods---Consignment was imported and shipping documents were delivered to clearing agent for transmitting Goods Declaration; as per pre-requisite upfront duty and taxes were deposited, consequent to which Goods Declaration was numbered---Nominated Appraiser got the imported goods examined prior to passing assessment order---Officials posted at terminal, after physical verification of the goods confirmed the declaration and Competent Authority passed assessment order on the basis of examination report; additional amount of duty and taxes leviable thereon, were also paid; consequent to which inbuilt authority passed clearance order---Clearing agent of the importer, thereafter obtained the delivery---Directorte General of Intelligence and Investigation stopped the container on the pretext that the duty and taxes had been paid short as against actuate and put on hold on Goods Declaration and goods were detained for conducting of re-examination---Officials of Director General of intelligence and investigation seized the consignment in terms of provisions of S.168(1) of the Customs Act, 1969 after serving notice under S.171 of the Customs Act, 1969, and subsequently prepared contravention report stating that importer, had tried to obtain clearance of the goods under HS Code 7315.1190 as against the actual one--Said fact had been accepted by the importer, and he agreed to pay the differential amount of duty and taxes---Such inadvertent error on the part of the employees of the clearing agent was termed as an act of misdeclaration by the importer---Deputy Collector of Customs issued a show-cause notice to the importer and Deputy Collector, being dissatisfied with reply of the importer passed impugned order whereby imported goods were held liable to confiscation; giving option to the importer to get the goods redeem on payment of 20% redemption fine---Appeal filed by the importer against the order was rejected by Collector of Customs (Appeal)---Validity---Officials of Directorate General of Intelligence and Investigation, were not empowered to detain the consignment of the importer; as the Directorate derived powers for functioning within the territory of Pakistan under S.R.O. No.486(I)/2007, dated 9-6-2007 for thwarting the act of smuggling; which would not mean that it had unfettered powers to intercept and detain the goods cleared by the Officials of Clearance Collectorate; after completion of codal formalities and realization of the leviable duty and taxes, for delivery to the importer through his clearing agent/representative, either in the terminal or their office---Officials of Directorate could not assume powers of seizing the goods under the provisions of S.168(1) of the Customs Act, 1969, as no allegation of smuggling, had been levelled---Directorate stretched its powers beyond the allotted sphere, same were not permitted, unless enabling provisions to the said effect was available in the Customs Act, 1969 or the notification---Said unlawful act of the officials of Directorate, was an act of high handedness abuse of powers being in violation of the provisions of law, hence void ab initio and as such coram non judice---Federal Board of Revenue had not delegated powers to the Directorate under provisions of Ss.32 & 79 of the Customs Act, 1990---Exercise of jurisdiction by the Deputy Collector of Customs being without lawful authority and jurisdiction, issuance of show-cause notice and passing of order-in-original, were void ab initio and of no legal effect upon passing of assessment order under S.80 of the Customs Act, 1969 and R.438 of Customs Rules, 2001 and thereafter passing of clearance order by Competent Authority, could not be disturbed by any authority for the purpose of preparing contravention report and adjudication proceedings---Issuance of show-cause notice and passing order-in-original in the case by Deputy Collector of Customs also fell under the ambit of "double jeopardy" not permitted under Art.13 of the Constitution---Preparation of contravention report by Director General of Intelligence and Investigation and issuing of show-cause notice, order-in-original by Deputy Collector of Customs and order-in-appeal passed by Collector of Customs (Appeals) were ab initio, illegal and void and of no legal effect---Same were set aside by Appellate Tribunal, appeal was allowed with directions to Directorate General of Intelligence and Investigation to release the pay orders/post dated cheque deposited by the importer as security for obtaining delivery of the goods in compliance of the order of the Tribunal.

Case Law referred.

Nadeem Ahmed Mirza for Appellant.

Zafar Naqvi and Zia Moin, I.O, for Respondent No. 1.

Faiz Mudassir, A.O Present for the Respondent No. 2.

Date of hearing: 25th May, 2016.

JUDGMENT

TAHIR ZIA, MEMBER JUDICIAL-II.---By this order, I, dispose of Customs Appeal No.K-1333/2015 filed by the appellant against the Order-in-Appeal No.10529 dated 25.08.2015, passed by the Collector of Customs, Appeal (here-in-after to be referred as respondent No. 4), maintaining the Order-in-Original No. 49/2015-2016 dated 16.07.2015 passed by Deputy Collector of Customs, Adjudication-I (here-in-after to be referred as respondent No.3).

2.Briefly facts of the case are that the appellant imported a consignment of motorcycle part 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 Sections 79(1) 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 PMBQ and as per pre-requisite upfront duty and taxes of Rs. 1219461.00 were deposited on 07.05.2015. Consequent to which GD was numbered as KPPI-HC-56357-07052015. 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 in the system. Upon appearance of that on his desktop, the competent authority as defined in Section 2(a) of the Act in exercise of the power vested upon him through S.R.O. 371(I)/2002 dated 15.06.2002 passed assessment order under Section 80 and Rule 438 of the Act/Rules, on the basis of examination report and with the application of Valuation Ruling No. 685 dated 15.09.2014 and transmitted view message dated 19.05.2015 for payment of Rs.169,199.00 towards additional amount of duty and taxes leviable thereon, which were paid by the appellant on 19.05.2015. Consequent to which inbuilt authority in the system passed clearance order under section 83 and Rule 442 ibid. The clearing agent of the appellant thereafter obtained the delivery from the terminal and while he was exiting the gate of QICT, the Officials of Directorate General of Intelligence and Investigation-FBR (here-in-after to be referred as respondent No. 1) stopped the container on the pretext that the duty and taxes have been paid short as against actual and put an hold on GD and goods were detained under Section 186 of the Act for conduction of re-examination, which transpired nothing. In spite of the said fact, the Officials of respondent No. 1 seized the consignment in terms of provision of Section 168(1) after serving notice under section 171 of the Act. The Officials subsequently prepared contravention report stating inter-alia that the appellant in association with his clearing agent tried to obtain clearance of the goods under HS Code 7315.1190 as against actual, the said fact has been accepted by the appellant and they have agreed to pay the differential amount of duty and taxes of Rs.498,822/-. This inadvertent error on the part of the employee of the clearing agent was termed as an act of mis-declaration by the appellant attracting the provision of sections 32(1), (2) and 79 of the Act, Sections 3,6 and 7A of the Sales Tax Act, 1990 and Section 148(1) of the Income Tax Ordinance, 2001 punishable under clauses (14) and (45) of Section 156(1) of the Act and forwarded that to respondent No. 3, who issued show-cause notice dated 11.06.2015, which was replied by the consultant vide letter dated 17.06.2015, which fails to impress the respondent No. 3 and he passed order dated 16.07.2015, para 8 of the order is relevant and is re-produced here-in-below:--

"8- I have gone through the record of the case and consider the verbal and written submission of the importer clearing agent and the department, it is pertinent to mention that during preliminary investigation regarding mis-declaration of HS Code 7315.1190 instead of 7315.1110 and clearance of the consignment, the importer Messrs Sunrise Corporation, Karachi himself accepted the wrong implication of HS Code and assessment of the subject consignment @ 20% instead of 35%. In this connection the importer agreed to pay the differential amount of duty and taxes of Rs. 498,822/- leviable on the said consignment bearing GD No. KPPI-HC-56357 dated 07.05.2015. Thus the importer has deliberately and willfully attempted to clear the goods by mis-declaration HS Code of the goods in connivance with the clearing agent. Therefore, the charges leveled against the importer regarding mis-declaration of HS Code have been established in terms of Section 32(1) & (2) of the Customs Act, 1969, punishable under clause 14 of Section 156(1) of the Customs Act, 1969. The impugned goods are therefore liable to confiscation. However, an option is given to the importer to get the impugned goods redeems on payment of 20% redemption fine of the total value of the offending goods. A personal penalty of Rs. 75,000/- is also imposed on the importer under clause 14 of Section 156(1) of the Customs Act, 1969, with the warning to be careful in future. A penalty of Rs. 50,000/- is also imposed on the clearing agent Messrs Khurram Brothers, (CHAL No. 618), M-9, Mezzanine Floor, Umais Terrace, Karachi under clause 14 of Section 156(1) of the Customs Act, 1969 for violating the provision of law, further more the assessing staff is required to finalize the assessment on the basis of the order and recover legitimate amount of duty and taxes, redemption fine and penalty beside applied correct valuation ruling/criteria, data and necessary trade regulation, which ever is applicable.

3.The vires of the order was challenged before Respondent No.4 by the appellant vide Appeal No. Cus-7414/2015/DIT who also vide his order dated 25.08.2015 rejected that by observing in para 5 that:

5 I have examined the case record. The appellants contentions regarding jurisdiction have been adequately discussed by the Adjudicating Officer. There is no denying the fact that there was incorrect classification of one item and some items escaped application of valuation ruling. The Adjudicating Officer has aptly held the appellants /importer responsible for evasion of duty and taxes. The order is upheld to this extent. However, no grounds have been given to establish connivance of clearing agents, therefore, penalty imposed upon the agent is set aside."

4.Being aggrieved and dissatisfied with the impugned Orders the appellants filed the instant appeal before this Tribunal on the ground incorporated in the Memo of Appeal. Mr. Nadeem Ahmed Mirza and Mirza Muhammad Abeer (Consultants) and Obaydullah Mirza (Advocate) appeared and argued in line with those and are detailed here-in-under:--

(i)The proceed with, it is appropriate for the appellant to comment on the quality of the judgment passed by respondent No. 4, wherein he has stated that the adjudicating officer has adequately addressed the question of jurisdiction of respondent No. 1 and his. This is entirely contrary to the fact, reference is placed to page 2 of the order containing nothing in this respect. Similarly, respondent No. 4 stated that "some item escaped application of valuation ruling". This is also nullity to the order dated 16.07.2015 passed/issued by respondent No. 3 containing no observation in this regard. The respondent No. 4 infact passed the order in vacuum beside beyond the scope of order of the respondent No. 3. Order so passed and the subsequent preceding are therefore palpably illegal, as held by the Hon'ble Supreme Court of Pakistan in reported judgment Collector of Customs v. Rahm Din 1987 SCMR 1840 holding that "any order passed on a ground not mentioned in the show-cause notice shall be palpably illegal on the face. This verdict of the Apex Court has been followed by a Division Bench of the Hon'ble High Court of Sindh (Karachi) in the case of Exide Pakistan (Pvt.) Ltd. v. Deputy Collector of Customs 2004 PTD 1449."

(ii)That it is also appropriate for the appellant to state that the detention/seizure and preparation of contravention report by the official of respondent No. 1. Indeed they are appointed and designated as "Officer of Customs" under Section 3A of the Customs Act 1969 and they derived power for functioning from Notification No. S.R.O 486(I)/2007 dated 09.06.2007 within the territory of Pakistan for thwarting the act of smuggling but this doesn't means that they can intercept and detain the goods transported within city or territory of Pakistan. Their jurisdiction in principle is restricted to the territory not falling within the ambit of Sections 9 and 10 of the Customs Act, 1969 and beyond 5 kilometer of the border of India and Iran in terms of Section 177 of the Customs Act, 1969 to be read with Notification S.R.O. No. 118(I)/83 dated 12.12.1983. The goods of the appellant were not brought into Pakistan from any other route, instead from the defined port after completion of all codal formalities. Resultant , these stood ousted from the area wherein the power has been delegated to the official of respondent No. 1, rendering their act as of no legal effect, hence void ab initio.

(iii)The official of respondent No. 1 indeed have powers to detain the goods under Section 186 of the Customs Act, 1969 under the power vested upon them through notification No. 486(I)/2007 dated 09.06.2007 but these powers can only be exercised in the vicinity of the port/terminal not in any part of the city and the said fact stood validated from section 186, 1969 which read as follows:--

186: Detention of Goods pending payment of fine or penalty:---(1) When any fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or pending any inquiry or investigation, in respect of any goods such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed.

(2)when any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any goods belonging to the same owner pending payment of such fine or penalty.

(iv)Upon conscientious analysis of Section 186, it is abundantly clear that the said section comes into play during the course of imports, meaning thereby if any case has been adjudicated by the competent authority against an importer and through which the authority held the charges established as leveled in the show-cause notice and impose fine and penalty, and the importer has not paid the leviable duty and taxes and impose fine. The appropriate officer is empowered to detain the forthcoming goods of the same owner till the time fine or penalty is not paid. The case of appellant is that his goods were lawfully cleared by the competent authority and against him no case is pending wherein fine or penalty has been imposed , therefore his consignment could not be detained on any pretext under the provision of Section 186 of the Customs Act, 1969 and this stood validated from reported judgment 2015 PTD 560 O.S. Corporation , FOP and others in which it has been held in categorical terms that "where no fine or penalty has been imposed or is even under consideration the provisions 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 released them is totally contrary to the provision of the Act 1969."

(v)That it is of vital importance to add that Officials of respondent No. 1 have no powers under Sections 16, 25A, 32, 79, 80, 83 and 195 of the Customs Act, 1969 through Notification No. 486(I)/2007 dated 09.06.2007 issued by the Board delegating the powers to the officers of DGI&I-FBR. Intercepting consignment after clearance on the pretext of mis-declaration of description, PCT and value by the officials of respondent No. 1 suffer from lack of jurisdiction and power, rendering their act as transgression to the vested powers under the respective sections. In the given circumstances of the case the impugned detention/ seizure notice, contravention report and show-cause notice, order-in-original and subsequent proceeding there on deems to be illegal and void. No body is allowed to act beyond his jurisdiction and all the acts or deeds beyond the scope of jurisdiction are null and void in the eyes of law. Reliance is placed on the reported judgments 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505, In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.

(vi)That the officials of respondent No. 1 are also empowered to conduct examination under section 198 of the Customs Act, 1969 under Notification No. 486(I)/2007 dated 09.06.2007 but within the vicinity of the port /terminal and that also after having approval of the Chief Collector (South) as clarified by the Board vide letter C.No. 2(2) L&P/2014 dated 29.12.2009 which they failed to obtain in the instant case, resultant, the carried out examination is nullity to law and direction of the Board which has to be adhered by the field formation in terms of the expression of Section 223 ibid.

(vii)It is also imperative to state that official of respondent No. 1 can examine the goods outside the premises of the port/terminal under the Civil Procedure Code not under section 198 of the Customs Act, 1969, which is not operative outside the port/terminal. While doing so they have to invoke the provision of Section 2(s) in the show-cause notice which they have not leveled against the appellant. Rendering, the examination report of the goods after post clearance outside the premise of the port/terminal being in derogation of Section 198 of the Customs Act, 1969 and as such void ab initio. Any case made on the strength of such examination report is nullity to law and not to be relied upon.

(viii) The respondent No. 1 and his subordinate are not appointed/ designated an "Officer of Inland Revenue" under Section 30A of the Sales Tax Act, 1990 and Section 230 of the Income Tax Ordinance, 2001 under which Directorate General Investigation Inland Revenue has been designated as officer of Inland Revenue and they had been delegated powers under different sections of the Sales Tax Act, 1990 through Notification No.S.R.O.776(I)/2011 dated 19.08.2011 and Section 207 of the Income Tax Ordinance, 2001. Resultant, the respondent No. 1 and his subordinate acted without powers/jurisdiction, rendering their act of detention, seizure and subsequently preparation of contravention report, null, and void ab-initio, hence "coram non-judice" as held in reported judgment Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 A.L.D. 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib) 1996 and 2010 PTD (Trib) 832 and [(2014 PTD 1733)] Waseem Ahmed and others v. FOP and another.

(ix)That similarly respondent No. 3 is also not designated an "Officer of Inland Revenue" under the provision of Section 30 of the Sales Tax Act, 1990 and Sections 207 and 230 of the Income Tax Ordinance, 2001 and as such is not empowered to issue show-cause notice under Section 36, (which stood omitted from the Act through Finance Act, 2012) and the appropriate Section is Section 11 and respective Section 162(1) not 148 of the Income Tax Ordinance, 2001. Therefore he usurped the power not vested with, rendering the show-cause notice and order -in-original without power/jurisdiction, hence void ab-initio and coram non judice as held in reported judgment Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib) 1996 and 2010 PTD (Trib) 832.

(x)That on conclusion of transaction, under the provision of sections 80 and 83 of the Customs Act, 1969 and 438 and 442 of Customs Rules, 2001, the order so passed under the said provision of the Act becomes appealable order under Section 193 of the Customs Act, 1969 before Collector of Customs (Appeals) and the respondent No. 1 and his subordinate are empowered under the said Section through Notification No. 486(I)/2007 dated 09.06.2007. If they had any reservation against the passed assessment orders, 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) under Section 80 of the Customs Act, 1969 became final and that cannot be disturbed by any authority. To the contrary, the respondent No. 1 and his subordinate detained, seized the goods, which is not permitted under law.

(xi)That upon filing of the appeal by the respondent No. 1 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 taking up the appeal it is mandated on him 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 either have not been 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 the respondent No. 1 despite mandated under law, instead assumed the powers under Section 195 of the Customs Act, 1969 and reopened a valid passed order under section 80 ibid. Neither the respondent No. 1 nor respondent No. 3 are empowered to reopen an order, hence both acted without power/jurisdiction, rendering their acts and commission 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.

(xii)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". In the instant case of appellant the involved amounts of duty and taxes are Rs.1,887,482.00 (upfront duty Rs.1219461.00 + Rs.169,199.00 + 498,822.00 shown in show-cause notice). Meaning thereby the competent authority to adjudicate the case in question under clause (ii) of Section 179(1) is Additional Collector. To the contrary, respondent No. 3 issued the show-cause notices and intend to pass order while usurping the powers of Additional Collector, which is not permitted under law. Rendering both suffer 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, S.T.A. 465/07 and judgments reported at Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax, PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2004 PTD 624), PLD 2004 Supreme Court 600, All Pakistan News Paper Society and others v. FOP, PLD 2005 Supreme Court 842 Khyber Tractors (Pvt.) Ltd v FOP. 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636 and 2015 PTD (Trib.) 1469.

(xiii) That the consignment in question had undergone the procedure of clearance as evident from the fact that the appropriate officer in the capacity of adjudicating authority defined in Section 2(a) of the Customs Act, 1969 in exercise of the powers vested upon him under Sections 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 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 respondent number 1 and its sub-ordinates detained the goods and later on seized and framed a contravention report for adjudication under section 179 of the Customs Act, 1969 by respondent No. 3 by issuing show-cause notice and subsequently passing of order in original i.e. piling of fresh order on the existing order, while reopening of the order of assessment, in exercise of the power under the provision of Section 195, specifically vested with the Board or Collector. Neither the respondent No. 1 nor respondent No. 3 are empowered to do so. Both usurped the powers not vested with them rendering the preparation of contravention report, show-cause notice and the impugned order in original without power/jurisdiction, hence void and ab-initio and as such coram non judice and this stood validated from the reported judgment 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." The cases referred are squarely applicable on the appellant case.

(xiv)That it is also imperative to add further that assessment orders in the subject case has been passed by the competent authority on 19.05.2015 and the appeal against which could had been filed by the respondent No. 1 or its subordinate on or before 20.05.2014 but had not filed by the respondent No. 1 to this date and the passed assessment order 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 so 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 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 attain 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 piled upon these as this is not permitted beside tantamount to double jeopardy barred under Article 13 of Constitution of Islamic Republic of Pakistan.

(xv)That the invoking of Section 79(1) is out of context because it pertains to the procedure for filing Goods Declaration for home consumption under Section 79(1) of the Customs Act, 1969 and Rule 433 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 and no charge can be leveled under the said section by virtue of the fact that it is a machinery section. The declaration filed by our Appellant is in conformity with the import documents, no procedural contravention has been made in filing the Goods Declaration, rendering the invoking of section 79(1) without lawful authority and jurisdiction.

(xvi)That respondent No.3 in the show-cause notice has also invoked Section 32(1) of the show-cause notice and so the subsection (2) of Section 32 of the Customs Act, 1969 without realizing the expression of the same verbatim of which is as:--

Section 32. False statement, error, etc. ------ If any person, in connection with any matter of customs, ----

(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or

(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer,

Knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. (Emphasis Supplied)

(xvii) That it is evident from the above expression, that the untrue and false statement attracting the mischief of these provisions has to be made by the importer/exporter and by the clearing agent or by any person submitting document with the customs in connection with any matter of customs "Knowing or having reason to believe". The provision of Section 32 contemplates, the existence of a personal "knowledge" Believe being a conviction of the mind arising not from actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of any absolute certainty because the accused in accounting for his possession, may be able to show that the ground upon which is based are unsubstantial Fazal Kader Chowdri v. Crown PLD 1952 FC 19. Whereas, the term "reason to believe", has classified at a "higher pedestal, than mere suspicion and allegation, but not equivalent to prove evidence. Even the strongest suspicion cannot transform in "reason to believe". The criteria laid down (to differentiate between mere suspicion and reason to believe) has to be, that some tangible evidence is available against the accused, which if left un-rebutted, may leave to the inference of guilt." Reliance is placed on reported judgment 2011 PTD (Trib) 2220 and 2011 PTD (Trib.) 2220. No mis-declaration in material particular has been made as evident from the declaration and endorsement of the same by the Customs officials, therefore no contravention of 32(1) is apparent.

(xviii) That respondent No. 3 simultaneously invoked the provision of subsection (2) of Section 32 of the Customs Act, 1969 in the absence of any "deliberate act" of Appellant as evident from the declaration and examination report, assessment order, wherein the goods declared were found in accordance with their generic name, quantity, weight and PCT, or even connivance with the official of the Customs in getting the goods examined in accordance to his requirements and so the completion of assessment dated 19.05.2015, stood validated from the fact that the assessing officer has been charged for any wrong doing as alleged. Resultant, Section 32(2) is not applicable. Therefore, the case of 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. 3 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 ab initio void and and coram non judice.

(xix) 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 375). 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 @ 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".

(xx)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.

(xxi)That it is imperative for the appellant to invite the attention of the Honorable Appellant Tribunal that where order has been made without any powers/jurisdiction, irrespective of the merit of the case, such order are coram non-judice as held by High Court of Sindh in Customs Reference No. 101 and C.M.A No.1281 of 2009 reported as 2010 PTD 465 Collector of Customs, Model Customs Collectorate v. 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 render 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.

(xxii) That as regard to the mis-declaration of PCT heading i.e. also without any substance as the assessing officer completing the assessment after going through the examination report and consulting of Pakistan Customs Tariff and thereafter utilizing his wisdom, his determination of PCT heading cannot be disputed upon by either respondent No. 1 or his subordinate 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 amount 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 ridicules 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 FOP and others held in C.P. No. D-5033/2013:

"It is settle proposition of law that an interpretation of a notification as well as the classification of the goods does not fall within the definition of mis-declaration."

(xxiii) That no charge of mis-declaration of value can 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, because 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.

(xxiv) Notwithstanding, the 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. S.R.O. 499(I)/2009 dated 15.06.2009. In the instant case of our 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.

(xxv) That the stance of our 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 attained 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 Rules 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 under taken 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 void ab initio. The same view has been taken by the Honb'le 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, 1992 SCMR 1083, 2008 PTD 1233 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."

(xxvi) That the respondents Nos. 1 and 3 completely failed to abide the provision of law that if the assessment has been made on the basis of Valuation Ruling issued by Director Valuation, under the Provision of Section 25A of the Customs Act, 1969 and assessment order has been passed by the officer defined in Section 2(a) of the Customs Act, 1969 and the goods had been cleared under the provision of Section 83 ibid, i.e. deems to be a valid order under law and that cannot be disturbed on any pretext including that the proper serial No. of Valuation Ruling was not applied or wrong Valuation Ruling has been applied or a non existent Valuation Ruling as the same has been declared as ab initio void and of no legal effect by the Hon'ble High Court and Appellate Tribunal or relevant data of higher side is not applied (as the same is nullity to law i.e. clause (d) of Section 25(5) & (6) of the Customs Act, 1969 and Rules 117 and 118 of Chapter IX of Customs Rules, 2001 as held by High Court of Sindh in its reported judgment 2008 PTD 1968 Messrs Sikander Enterprises v. Central Excise and Sales Tax Tribunal Karachi. Their lordship of the High Court held:--

"Even otherwise after clearance of the goods and removal of consignment from the Custom Area, Customs Authority were functus officio to reopen the case again it had become past and closed transaction--- no specific provision has been quoted as to whether appellant had been guilty of offence under subsections (2) (3) of section 32 of the Customs Act, 1969; it would thus be difficult to observed as to whether appellant has been guilty of mis-declaration"

(xxvii) The orders passed by the respondents Nos. 3 and 4 shows that these have not been passed with the application of mind and provision of the Act. Instead are non speaking order and did not conforms to the mandated requirement of section 24-A of the General Clauses Act, 1897 and this stood validated from the fact that no rebuttal on the submission made in the reply to the show-cause notice and grounds of appeal and the annexed exhibits have been given/controverted and passed the impugned orders on personal absurd opinion contrary to law and that too also are not containing substantial reasons and did not shows it was passed on objective consideration. Such type of orders are deems to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication/Appellate orders are being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369, PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib.) 619.

(xxviii) That the respondent No. 3 has issued/passed show-cause notice and order-in-original in very cursory, wanton and perfunctory manner without application of mind. As evident from the fact that he completely overlooked the power vested with respondent No. 1 and to him and the applicable provision of law mentioned in the show-cause notice. While doing so he has done a grave injustice with the appellant and this stood proved from the paras supra, rendering his act being highly deplorable. These type of deficiencies are fatal cannot be ignored by a judicial fora. This stood validated from the fact that he intentionally and deliberately has not gone through the contents of the contravention report and the provision of law and has signed and draft show-cause notice forwarded by the official of respondent No. 1. This type of attitude has been depreciated by the higher judicial fora. Reliance is placed on reported judgment 2004 PTD 369 in the case of Messrs Zeb Traders v. Federation of Pakistan. Their lordship of the High Court held that:

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

(xxix) That since in the case of Appellant the action is taken contrary to order-in-original with the usurpation of power and in derogation of the law laid down, rendering these void, ab-initio and ab-initio wrong. And any order passed by your authority on the strength of that shall also liable to be struck down as of no legal effect and nullity to law and non-existent as held by the Hon'ble High Court of Sindh held in reported judgment 2002 PTD 2457 that "the thing should be done as they are required to be done, or not at all". Whereas, the Apex Court held in reported judgment PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner" in reported judgment PLD 1973 Supreme Court 236 "it is now well established that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained by the Superior Courts of Pakistan, in the case of E.A. Avans reported as PLD 1964 SC 536 it is held that "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in their judgment reported as 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted.". Resultant the order-in-original if passed by the Deputy Collector of Customs, MCC of Appraisement (East) on the show-cause notice issued by respondent are also ab initio, illegal and void as held in reported judgments PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.

(xxx) 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, instead comments were submitted by respondent No. 1, verbatim of those are reproduced here-in-below:

i.The contents of para (i) of grounds need no comments as it, relates with respondent No. 4. However, as far as the question of jurisdiction of respondent No. 1, it is already discussed at para v above in detailed.

ii.The contents of para (ii) of grounds are misleading and contrary to facts. To remove such kind of legal misconception , it is submitted that the Directorate General was established in 1958 with the approval of President of Pakistan as an attached department of Revenue Division. In this connection the Central Board of Revenue (Now FBR), and Ministry of Finance (Revenue Division), issued Notification No. 55-C, 56-C, 57-C and 58-C all dated 07.10.1958, whereby it appointed the officers of Directorate General as land Customs Officers and Customs officers. The directorate was established for the purpose of performing functions and duties including enforcement duties and for carrying out Preventive operation throughout the country related to smuggling, evasion of Federal Taxes through clandestine removal of dutiable goods, mis-declaration, valuation, frauds, fraudulent claims of refund and rebate etc., and to detect and investigate cases cognizable under the Prevention of Smuggling Act, 1977. In this regard for smooth performance of the said duties, the Central Board of Revenue (now FBR), in exercise of the powers conferred under Sections 3 and 4 of the Customs Act, 1969, issued various SRO's and at present the officers of Directorate General are performing duties in terms of SRO 486(I)/2007 dated 09.06.2007, whereby the officers have been authorized to exercise the following powers and discharge the duties of officers of customs within the are of their respective jurisdiction:-

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

From the bare reading of above provisions, it is evident that a complete legal mechanism has been provided for the officers of Directorate to perform the duties of officers of customs in and outside the port area declared under Sections 9 and 10 of the Customs Act, 1969. It is relevant to add here that during the performance of their duties as explained above, in case if any goods are found liable for confiscation, then the provisions of Sections 168(1)(3)(4) and 161 of the Customs Act, 1969 become operative. Upon completion of investigation reports invoking the relevant provisions of Act and rules made there under are forwarded to competent courts having jurisdiction to initiate Civil and Criminal proceedings under Sections 179 and 185-A of the Customs Act, 1969. Since, the complainant has grossly mis-declared the contents of the impugned consignment, therefore, the staff of Directorate General of Intelligence and Investigation-FBR, Regional Office, Karachi in exercise of the power under Sections 161 and 168 of the Customs Act, 1969, arrested complainant as well as seized the impugned consignment and therefore, upon submission of seizure report and lodging of FIR proceedings under Sections 179 and 185-A of the Customs Act, 1969, were initiated by the Adjudicating Officer and the Honourable Trial Court . In this regard, reliance is placed on a judgment of the Hon'ble Supreme Court of Pakistan in case of Baba Khan v. Collector of Customs, reported as 2000 SCMR 678, whereby , it has been ruled out that:--

"We have carefully perused the provisions of Section 32 and also Section 79 of the Customs Act, 1969. Under subsection (1) of Section 32, if any person in connection with any matter of Customs makes any declaration or statement which is untrue in any material particulars, he is guilty of an offence under that Section. No reference is made in Section 32(1) to Section 79 or that such declaration or mis statement is made in the bill of Entry. For an untrue declaration or mis-statement to come within the mischief of Section 32(1), the same should be untrue. In any material particulars and that the statement or declaration is made in "connection" with any matter of customs. The words "any matter of customs" are not restricted to bills of entry"

Further, Hon'ble Lahore High Court in Writ Petitions Nos. 1451-1455 of 2008 has held the action of Directorate General with the port premises to be lawful. The court has held that "Section 17 read with Sections 15 and 32 makes it clear that the Directorate of Intelligence can detain, seize and confiscate the goods imported or exported in contravention of provisions of Section 32 if the importer in connection with the matters of customs has signed a documents knowingly that he is misstating. In the cases under discussion, there is no doubt to the extent of misstatement, under statement and mis-declaration of the goods. There is therefore no doubt about the jurisdiction assigned to the said Directorate in case of an untrue statement, intentional or unintentional, detected subsequently and law provides ample and wide powers to the said authority to stop the clearance of any consignment even if the same is out of charge."

Further, in terms of S.R.O. 486(I)/2007 dated 09.06.2007, the officers of Directorate General are quite competent to intercept, seize and investigate the mis-declared goods at any stage. In this regards reliance is placed on judgment reported as 2008 PTD 1365, passed by the Hon'ble Lahore High Court, Lahore whereby, regarding exercise of powers by the Directorate General it has been held that"

"Where there is no doubt to the extent of misstatement understatement and mis-declaration of goods, law provides ample and wide powers to the said authority to stop the clearance of any consignment even if the same is out of charge."----- Directorate of Intelligence and Investigations, has full powers to investigate even after the process of appraisement by the Customs Collectorate if it has reasons to believe that the goods are mis-declared."

In the instant case the consignment was cleared through mis-declaration of HS Code, therefore the staff of respondent No. 1 made a seizure case against the petitioner accordingly to law.

iii.The contents of para (iii) of grounds are mis-leading and contrary to the facts. In fact the instant consignment was detained at PMBQ, Karachi and not in the city. As regards the power of Respondent No.1, it is already discussed in detail at preceding paras.

iv.the contention of appellant in para (iv) of grounds are misleading and contrary to the fact. The instant consignment was cleared through mis-declaration which was detained/seized at PMBQ, Karachi. Under Section 168 of the Customs Act, 1969. Accordingly, the Seizure Report was submitted before the Adjudicating authority for adjudication proceedings who issued the show-cause notice to the appellant and after passing five hearings opportunities, passed the judgment order vide Order-in-Original No. 49/2015-16 dated 16.07.2015 in which, it is clearly mentioned that no one appeared on behalf of importer (appellant). In the aforesaid order, the Adjudicating authority confiscated the goods, however, an option was given to redeem the goods on payment of 20% fine on the value of offending goods and also imposed the penalty of Rs. 75000/-. As the consignment was cleared through mis-declaration, the seizure case was made against the appellant according to law.

v.The contents of para (v) of grounds need no comments are already offered at above paras.

vi.The contents of para (vi) of grounds need no comments as already offered at above paras.

vii.The contents of para (vii) of grounds need no comments as already offered at above paras.

viii.The contents of para (viii) of grounds are misleading and contrary to the facts. As the instant consignment was cleared through mis-declaration, therefore the respondent No. 1 made a seizure case against the appellant for the violation of sections 32(1)(2) and 79 of the Customs Act, 1969 at Port Muhammad Bin Qasim, Karachi.

ix.The contents of para (ix) needs no comments as it relates to respondent No. 3. However, it is pertinent to mention here the case is made for the violation of mis-declaration. Under Sections 32(1)(2) and 79 of the Customs Act, 1969, therefore, the order passed by the respondent No. 3 in accordance with law.

x.The contents of para (x) of grounds need no comments as already offered in preceding paras.

xi.The contents of para (xi) of grounds need no comments. However, it is pertinent to mention here that the respondent No. 1 has not filed any appeal before the Collector of Customs Appeals. Under section 193 of the Customs Act, 1969 regarding power/jurisdiction of the respondent No. 1 already discussed in above paras.

xii.The contents of para (xii) of grounds needs no comments as it is not related with the instant case.

xiii.The contents of para (xiii) of grounds need no comments as it is not related with the instant case.

xiv.The contents of para (xiv) of grounds need no comments as it is not related with the isntat case.

xv.The contents of para (xv) of grounds need no comments as it is not related with the instant case.

xvi.The contents of para (xvi) of grounds need no comments as already offered at preceding paras.

xvii.The contents of para (xvii) of grounds needs no comments. However, it is a case of mis-declaration of HS Code, as the instant consignment was cleared through mis-declaration of HS Code 7315.1190 and paid the duty @ 20% instead of HS Code 7315.1110 attracting the customs duty @ 35% which caused the loss of revenue to the Government of Exchequer to the tune of Rs. 498,822.00.

xviii. The contents of para (xviii) of grounds need no comments as already as its relates with respondents No. 3. However, regarding section 32 already discussed at preceding paras.

xix.The contents of para (xix) of grounds need no comments as it is not related to the respondent No. 1

xx.The contents of para (xx) of grounds need no comments as it is not related to respondent No. 1.

xxi. The contents of para (xxi) of grounds need no comments as it is not related to respondent No. 1

xxii.The contents of para (xxii) is not related to the instant case. As there is no dispute of HS Code because it is clearly mentioned rather it is a deliberate attempt to avoid the higher rate of duty. Details of declared PCT and actual PCT is given as follows in Pakistan Customs Tariff.

Actual	PCT7315.1110	For vehicles of chapter 87	CD @ 35%
Declared	PCT7315.1190	Others	CD @ 20%

Moreover, appellant is well aware of valuation ruling and its status which clearly indicates the PCT heading of subject goods at Serial No. 14 of Valuation ruling No. 685/2014. It is further informed that S.R.O. 499(I)/2009 dated 13.06.2009 clearly indicates and limits of redemption fine. It is an willful attempt to declared the wrong HS Code for the clearance of consignment. It may be stated that without human intervention no artificial juridical person shall cause evasion. And adjudicating authority had rightly pointed out the human element involvement in committing evasion and imposed the personal penalty.

xxiii. The contents of para (xxiii) of grounds need no comments.

xxiv. The contents of para (xxiv) of grounds need no comments

xxv. The contents of para (xxv) of grounds need no comments as it is not related to the instant case.

xxvi. The contents of para (xxvi) of grounds need no comments as already discussed at above paras. However, it is pertinent to mention here that it is the case of mis-declaration of HS Code as the consignment was cleared on the payment of duty @ 20% instead of 35% despite the evident HS Code in Pakistan Customs Tariff and in above mentioned Valuation Ruling.

xxvii. The contents of para (xxvii) of grounds need no comments as it relates with respondent Nos. 3 and 4. However, it is respectfully submitted that the adjudicating authority given several opportunities of hearing to the appellant to defend the case but nobody attended the hearings which is clearly indicated at para 6 of Order-in-Original No. 49/2015-16 dated 16.07.2015.

xxviii. The contents of (para xxviii) of grounds need no comments as it is not related to respondent No. 3.

xxix. The contents of para (xxix) of grounds need no comments as it is not related to the instant case.

xxx. The contents of para (xxx) of grounds need no comments.

7.Rival parties heard and case record perused including the citations placed on record.

8.That prior to dilating upon the powers/jurisdiction of respondents Nos.1 and 3 and the merit of the case, it is felt beneficial for me to determine the question of detention of 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 Officials 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 in the provisions, 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 detained under Section 186 of the Act by the officials of 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 and assessed HS Code is not relevant with the goods and non application of the valuation ruling No.685/2014 dated 15.09.2014. Detention under 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 2015 PTD 560 Messrs O.S. Corporation v. FOP and others, referred in para 6(iv) supra and 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 03 others that "authorities could detained such goods in respect of which inquiry or investigation was pending and not the goods which had been or were 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 respondents 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 Customs Act, 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." By gaining strength from the expression of Section 186 and the law laid down, I declare that the officials of respondent No.1 were not empowered to detain the subject consignment of the appellant.

9.Reverting back to the core issue of powers and jurisdiction, which is of vital importance for the health of the case. The respondent No. 1 drive powers for functioning within the territory of Pakistan from Notification No. 486(I)/2007 dated 09.06.2007, for thwarting the act of smuggling, this does not means that they have unfettered powers to intercept and detain the goods cleared by the Officials of Clearance Collectorate after completion of codal formalities and realization of the leviable duty and taxes, for delivery to the importer through his clearing agent/representative either in the terminal or their office. Their jurisdiction in fact is only restricted to the areas falling outside the purview of Sections 9 and 10 of the Customs Act, 1969 and beyond 5 kilometers of the border of India and Iran as expressed in Section 177 of the Customs Act, 1969 and Notification No. 188(I)/83 dated 12.12.1983. By not leveling allegation of smuggling as defined in Section 2(s) of the Act in the contravention report and invoking of the same in the show-cause notice, the officials of respondent No. 1 cannot assume powers of seizing the goods under the provision of Section 168(1) of the Act. Since, in the instant case allegation of smuggling as defined in Section 2(s) read as "smuggle" means to bring into or take out of Pakistan in breech of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon", has not been leveled. The official of respondent No. 1 are not empowered to exercise powers under the provision of Section 168(1) ibid, which could only be exercise upon invoking the provision of Section 2(s) ibid. In the given circumstances of the case, the goods in question could not even be seized by the respondent No.1 nor could be ordered to be confiscated by the respondent No. 3, which he in fact not ordered in order dated 16.07.2015, stood validated from the phrase used by him in the order "liable to be confiscated" confirming that he is of the opinion that the goods are liable to be confiscated but fell short of ordering confiscation. When any goods are not ordered to be confiscated, those are not liable to imposition of redemption fine, which he imposed in the vacuum. Rendering the imposition of fine as of no legal effect and as such void and ab-initio. The respondent No. 1 and his subordinates stretched their powers beyond the allotted sphere and applicable provision of the Act and the Notification No. 486(I)/2007 dated 15.06.2007. This is not permitted unless enabling provisions to the said effect is available in the Act or notification. This unlawful act of the Officials of respondent No. 1 is an act of high handedness, abuse of powers being in violation of the provision of law, hence, void and ab-initio and as such coram non judice. For reaching at the said conclusion I am indebted from the observation available in reported judgments PLD 1971 SC 184, PLD 1976 Supreme Court 514, PLD 1991 Supreme Court 630, 1992 ALD 449(1) Karachi , PLD 2001 Supreme Court 514, 2004 PTD 624, 2005 PTD (Trib.) 135, 2008 CL(sic) 37, 2010 PTD (Trib.) 1636, 2010 PTD 465, 2010 PTD (Trib.) 2158, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 1680, 2011 PTD (Trib.) 2086, 2014 PTD (Trib.) 1566.(Emphasis supplied by me)

10.The Board has not delegated powers to the respondent No. 1 under the provision of Sections 32 and 79 of the Customs Act, 1969, which are incorporated in the contravention report and were invoked in the show-cause notice by respondent No. 3 because Section 32 speaks about (false statement, error etc.) and Section 79 (Declaration and Assessment for Home Consumption Warehousing) and is a machinery Section and define the procedure for filing of GD by the importers. Whereas, for reopening of an appealable order, powers under Section 195 of the Customs Act, 1969 have been conferred on either the Collector of Customs or Board. Inspite of no powers under the Sections under discussion, the Officials of respondent No. 1 reopened the assessment order passed by competent authority under the provision of Section 80 and Rule 438 of the Act/Rules. The mode and manner in which the respondent No. 1 and his subordinates operates is nothing more than creating a situation of anarchy, which cannot be endorsed under any circumstances because this will encourage the other organs of the FBR to encroach the jurisdiction of another independent organ and exercise their powers in spite non availability under the provision of the Act and the Rules and Regulation framed there-under. This belatent act of respondent No. 1 is nothing more than transgression of the powers of the authorities, powers to whom are vested under Sections 32 and 195 of the Customs Act, 1969 and Notification No. S.R.O. 371(I)/2002 dated 15.06.2002. Therefore, detention/seizure and subsequently preparation of contravention report by respondent No. 1 and issuance of show-cause notice/passing of order-in-original by respondent No. 3 and piling there upon order-in-appeal by respondent No.4 are without powers/jurisdiction and lawful authority and as such null, void ab-initio and coram non judice.

11.Upon perusal of Section 30A of the Sales Tax Act, 1990 and Section 230 of the Income Tax Ordinance, 2001, I have observed that in the matter of Sales Tax and Income Tax, the legislature has established a separate watchdog authority namely Directorate General of Intelligence and Investigation -Inland Revenue. Officer of which have been delegated with the powers for exercising under the different provision of Sales Tax, 1990 and Income Tax Ordinance, 2001, vide S.R.O. No.776(I)/2001 dated 19.08.2011 under Section 207 of the Income Tax Ordinance, 2001. Despite having no powers under the provision of Sales Tax and Income Tax, the respondent No. 1 and his subordinate invariably encroach the jurisdiction of Director General of Intelligence and Investigation - Inland Revenue, which is an act of usurpation/ transgression and renders the whole exercise right from detaining the goods till passing of order-in-appeal as without lawful authority and jurisdiction, hence void and ab-initio and of no legal effect and this has also been held by Superior judicial fora in countless reported judgments, reference is made to [(2014) 109 Tax 315 (H.C.Kar.)] Waseem Ahmed and others v. FOP and another, where it has been held in clear terms that "unless the officer of DGI&I)-FBR are not appointed and an officer of Inland Revenue, powers under the different subsection of the Sales Tax Act, 1990 can not be delegated through any S.R.O. with that the Hon'ble High Court of Sindh declared Notification No. 775(I)/2011 ultra vires to the Sales Tax Act, 1990".

12.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. In the instant case the amount of duty and taxes involved are Rs. 1,887,482.00 (paid upfront duty and taxes of Rs. 1219461.00 + paid on 19.05.2015 as additional amount of duty and taxes of Rs. 169,199.00 + shown amount of duty and taxes in show-cause notice Rs. 498,822.00), case of such amount falls within the powers of Additional Collector. To the contrary, the respondent No. 3 issued show-cause notice and passed order in original by usurping the powers of Additional Collector, which is not permitted under law. 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, 2004 CLD 373, 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)

13.I have also noticed with great concern that the respondent No. 3 in the show-cause notice have invoked Sections 3, 6, and 7A of the Sales Tax Act, 1990 and Section 148(1) of the Income Tax Ordinance, 2001 and that also intentionally and ignoring the fact that he has not been appointed as an Officer of Inland Revenue under Section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001. Therefore have no powers to proceed in the matter of Sales Tax and Income Tax under the invoked sections in the show-cause notice, which are otherwise irrelevant as under those sections order of recovery cannot be passed, instead define the mode and manner of collection of Sales Tax and Income Tax at import stage by the Clearance Collectorate as like customs duty on the value determined under Section 25 or 25A of the Customs Act, 1969.

14.In order to have clarity in the issue I perused Section 30 of Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 and observed that the legislature appoints under the said Sections different organs of the FBR as Officer of Inland Revenue for exercising powers under the respective Sections of the Act/Ordinance, delegated through statutory notifications or under Section 207 of the Income Tax Ordinance, 2001. In these Sections neither respondent No. 2 nor respondent No. 3 figures anywhere nor in charging section 11 of the Sales Tax Act, 1990 or Section 162(1) of the Income Tax Ordinance, 2001. Therefore, the respondent No. 3 under no circumstances was empowered to lay hands on the matter falling within the ambit of Sections 3, 6, 7A and 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. These sections least empowers the Officers of Customs including the respondent No. 3 to initiate adjudication/recovery proceeding for the short collected/paid Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. For proceeding for these type of recovery a show-cause notice has to be issued under the provision of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, the authority to issue show-cause notice under these Sections are Officer of Inland Revenue and the Commissioner of Income Tax, in these sections respondent No. 3 figures anywhere. He assumed the power 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. It is my considered opinion that the Clearance Collectorates does have the authority to collect and this stood validated from the reported/unreported judgments 2011 PTD (Trib) 110 Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi, 2010 PTD (Trib.) 2086 Messrs Global Marketing Services and another, v. Model Customs Collectorate and another, 2014 PTD (Trib.) 299 M.I. Traders v. Additional Collector of Customs, 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, 2016 PTD (Trib.) 925 Abdul Aziz and brothers, Karachi v. Director General I&I, 2016 PTD (Trib.) 969 Asif Textile Trading v. Director General I&I, 2016 PTD (Trib.) 843 Muhammad Ilyas v. Director General of PCA, Karachi, 2016 PTD (Trib.) 1008 Phillip Morris (Pakistan) Ltd., Karachi v. Additional Collector of Customs.

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 import 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 "Expression facit cessare tacitum"

I, therefore hold that the exercise of jurisdiction on this point by the respondent No. 3 is without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of order-in-original are ab initio void and as such of no legal effect

15.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 for the purpose of preparing contravention report and adjudication proceeding. The only course left for the respondent No. 1 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Act in exercise of the powers delegated upon him through Notification 486(I)/2007 dated 09.06.2007. 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 either have not been 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 respondent No. 1 reopened the assessment/clearance order under section 195 of the Act under which no powers are vested with any Officers of the respondent No. 1. 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." It is also settled proposition of law that in the presence of an appealable order, fresh order cannot be passed even through issuance of show-cause notice under section 180, while exercising powers under the provision of Section 179 ibid. The said act is piling upon yet another order 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 as elaborated above. The transaction stood past and closed and attained finality and cannot be disturbed. For reaching at the decision I 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. Notwithstanding, the act of issuance of show-cause notice and passing of order-in-original in the instant case by the respondent No. 3 also falls under the ambit of "double jeopardy" not permitted under Article 13 of the Constitution of Islamic Republic of Pakistan. Rendering the order passed by respondents Nos. 3 and 4 for piling upon an existing appealable order are without lawful authority and jurisdiction and as such ab-initio void and of no legal effect.

16.The respondent No. 4 inscribed in the order that "some item escaped application of valuation ruling", the show-cause notice and order of respondent No. 3 are silent in this regard, rendering the order passed by respondent No. 4 in vacuum and outside the charter of show-cause notice and order-in-original. Orders passed beyond the charter of show-cause notice are held to be palpably illegal, reported judgments referred by the appellant and are incorporated in para 6(i) supra, which are applicable with full force in the case under discussion. As regard to the non application of valuation ruling at the time of passing of assessment order under Section 80 and Rule 438 of the Act/Rules, it cannot be applied subsequently when the goods are allowed clearance under Section 83 and Rule 442 ibid, by virtue of becoming functus officio as held by this Tribunal in host of judgments while relying upon the reported judgments 2008 PTD 1968 Messrs Sikander Enterprises v. Central Excise and Sales Tax Tribunal, Karachi "Even otherwise after clearance of the goods and removal of the consignment from the customs area. Customs authority was functus officio to reopen the case again when it had become passed and closed transaction." and 2009 PTD 467 Messrs S.T. Enterprises v. FOP that "Valuation Ruling are estimate, if the same are not followed at the time of earlier appraisement, it cannot be used against an importer which has already appraised and has been made out of charged by the Customs Authorities. Once a consignment is out of charged after due consideration of the relevant fact, it becomes a past and closed transaction."

17.The respondent No. 4 has stated in para 5 of the order that the respondent No. 3 has adequately discussed the powers/jurisdiction of the respondent No.1 and his subordinate. In confirmation of the validity of the said opinion I scrupulously perused the order but failed to find any observation in this regard. This was done intentionally for endorsing the illegal act of the Officials of respondent No. 1 and of respondent No. 3, who passed order without touching the powers/jurisdiction of respondent No. 1 and his under the provision of relevant Sections of Act, Sales Tax Act, 1990 and Income Tax Ordinance, 2001. The respondent No.4 inspite availability of the argument of the appellant in the memo of appeal ignored those and validated the order-in-original in very casual manner and this confirms that he has no urge, will, passion and ability to decide the case/dispute put before him for decision. The order is completely silent in regards to the arguments of PCT and alleged revenue loss. Rendering his order as well as of respondent No. 3 as perfunctory, sketchy, slipshod, bald and devoid of any reason and did not conform to the mandated requirement of section 24-A of the General Clauses Act, 1897. Orders which did not contains rebuttal on the ground advanced and decision/judgments relied upon by the appellant and not containing substantial reasons shows these have not been passed on objective consideration. These type of orders are always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The orders-in-original /appeal passed by respondents Nos. 3 and 4, are being in violation of basic principle of the good governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib.) 619.

18.In the light of above deliberation and adhering the ratio decidendi set-forth by the Honorable Superior Courts of Pakistan, 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. 3 and order-in-appeal by respondent No. 4 are Illegal and ab-initio, void and as such is of no legal effect. Therefore, I annul those and set aside the orders passed by the forum below and allow the appeal with the direction to respondent No. 1 to release the pay orders/post dated cheque deposited by the appellant as security for obtaining delivery of the goods in compliance of the order of the Tribunal dated 19.12.2015.

19.Order passed and announced accordingly.

HBT/98/Tax(Trib.) Appeal allowed.