AL-FAZAL INTERNATIONAL VS DEPUTY COLLECTOR OF CUSTOMS, 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 569 (2016)

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

----Ss. 4, 80, 168, 171, 179, 182 & 194-A---Pakistan Plant Quarantine Rules, 1967, R.20---SRO No.371(I)/2002, dated 15-6-2001---Confiscation of imported goods---Consignment of 14986 Kgs. of Bananas was imported and on receipt of import documents, goods were delivered to Clearing Agent; who transmitted Goods Declaration with MCC of Appraisement---As per pre-condition of availing the regime of "WeBOC" upfront duty and taxes was paid---Appraiser completed the assessment, subject to clearance order from the Plant Protection Department---Importer agitated upon the condition alleging that same did not exist---Importer contended that demand of department was unlawful---Principal Appraiser issued show-cause notice to the importer but Deputy Collector of Customs, while ignoring the condition of certificate, insisted that the submission of 'RO' was mandatory and ordered the confiscation of imported goods---Appeal filed against said order was rejected by Appellate Authority---Validity---Containers of imported Bananas, were held by Deputy Collector of Customs, which squarely fell within the ambit of notional seizure and provision of S.168(1) of Customs Act, 1969 would apply with full force---Since detention, which was notional seizure had been made under S.168(1) of the Customs Act, 1969, a notice to said effect under S.171 of Customs Act, 1969 had to be mandatorily served on the person, from whose possession the goods had been seized, but no such notice had been served on the importer---Non-serving the notices, had rendered the whole proceedings as of no legal effect, hence, was void ab initio and without lawful authority/jurisdiction---No provision of the Customs Act, 1969, had been spelled out in the show-cause notice, which importer contravened---Instead a non-issue had been made an issue, on the strength of which the case could at the most be termed as non-fulfilment of condition of Import Policy Order i.e. of no revenue loss---Case, in circumstances, fell within the provisions of S.80 of the Customs Act, 1969, under which Principal Appraiser had jurisdiction in the terms of Notification No. SRO 371(I)/2002, dated 15-6-2002, and he was the only authority to adjudicate the case---Deputy Collector of Customs, on the one hand had committed grave illegally and on the other hand usurped the powers of his subordinate i.e. Principal Appraiser, which he could have only exercised under S.4 of the Customs Act---Deputy Collector of Customs had acted without lawful authority, jurisdiction and superstructure built upon by way of order-in-original and order-in-appeal were without power/jurisdiction and coram non judice---Orders by Authorities were not judicial orders; nor independent and reflected non-application of mind, and based on personal biased opinion---Impugned order smacked of mala fide, as not a single argument of the importer advanced was considered or rebutted---Impugned orders being violation of basic principles of good governance, was not only illegal and void, but also not sustainable order---Show-cause notice was vacated and impugned order was set aside---Authorities, were directed to pay the cost of goods including the refund of the paid duty and taxes, in circumstances.

Case law referred.

(b) Administration of justice---

----Principle that every judicial or quasi-judicial findings should be based on reasons containing the justification for the finding in the order itself, was an established principle of dispensation of justice.

Nadeem Ahmed Mirza for Appellant.

Asfandyar, Deputy Collector and Mubarik Shah for Respondents.

Date of hearing: 13th April, 2016.

JUDGMENT

TAHIR ZIA, MEMBER (JUDICIAL-II).---The subject appeal has been directed against Order-in-Appeal No. 10757/2015 dated 06.11.2015 passed by Collector of Customs, Appeals (hereinafter to be referred as respondent No.3) maintaining the Order-in-Original No.SI/MISC/71/2015-Group-I (A/W) dated 07.09.2015 passed by the Deputy Collector of Customs, Adjudication, MCC of Appraisement- West, Karachi (hereinafter to be referred as respondent No.2).

2.Briefly facts are that the appellant imported a consignment of 14986 kgs of Bananas from Ahmed pore, Gujrat, India stuffed in 2 x 40 refrigerated container through invoice No. BNA/NAB/119 dated 10.06.2015 and B/L No. NSA/KHI/FCL/2015 4283 dated 15.06.2015, upon receipt of import documents delivered those to his clearing agent who transmitted Goods Declaration with the MCC of Appraisement West and as per pre-condition of availing the regime of WeBOC, paid upfront duty and taxes of Rs.783,818.00. Consequent which G.D was numbered as KAPW-HC-206680 dated 24.06.2015. Upon appearance of Goods Declaration on his desktop the nominated Appraiser opted for examination of the goods first, which were found in accordance with the declaration and the examination report so recorded was uploaded in the system. The Appraiser completed the Assessment but held the clearance order subject to submission of RO from the Plant Protection Department. Which was agitated upon as no condition existed in Serial No. 5 of Part-I of Appendix-B to Import Policy Order, 2013. Notwithstanding to the said fact and proposition of law, right from PA to Collector insisted upon submission of that, the appellant tried his best to make them understand that their demand is unlawful but of no avail. The Principal Appraiser issued show cause notice dated 24.07.2015, while the same was under consideration of the appellant, the respondent No. 2 issued show cause notice dated 04.08.2015, which was replied on 08.08.2015. The respondent No. 2 while ignoring the condition laid in Serial No. 5 insisted upon that the submission of RO is mandatory in terms of Serial No. 3 and ordered confiscation of the appellant goods vide dated 07.09.2015 para 8 is relevant, which is reproduced here-in-below:--

8. The case record has been examined, written and verbal arguments of Consultant have been considered and as a result, the question raised above have been determined/answered as under:--

(i)The bananas are importable from India and these are not included in the negative list i.e. Appendix-G of the Import Policy Order.

(ii)As per Sr. No. 3 of Part-I of Appendix-B of Import Policy Order, against all species of plants and parts thereof, whether living or dead, stems, branches, tubers, bulbs, corns stock, bud-wood, layers, slips, suckers, green scum on stagnant pool, leaves, fruits, rhizomes etc, a valid PPRO is required. Hence, the bananas imported in the instant case, cannot be released in the absence of PPRO and in the wake of information communicated vide the Plant Protection Department Ministry of National Food Security and Research communicated vide letter No. C. No. PQS-2015/2016 (Import- Banana) dated 06.07.2015.

(iii)The certificate from the country of export i.e. India that the goods are free from quarantine pest and that the same are in conformity with the phyto-sanitary regulations of the importing country, is not sufficient to release the goods as it does not fulfill the condition of Sr. No. 3 of Part-I of Appendix-B of Import Policy Order.

3.The varies of the order was challenged before Respondent No.3 by the appellant vide Appeal No. Cus/7517/2015/A-West , who also vide his order dated 06.11.2015 rejected that by observing in para 5 that:--

"5- I have examined the case record and also heard the representative of Plant Protection Department. The goods not listed in appendix -G of Import Policy Order are importable from India subject to conditions and requirement prescribed under Import Policy Order. The Plant Protection Department working as watch dog agency for food and agricultural safety and health have already stated that without a valid permit issued by the said department and in the absence of release order which is issued after proper examination and fumigation, no plant or plant material can be imported. The said department has specifically disallowed the impugned shipment of banana. I, therefore hold that the original order is legitimately passed and there are no grounds to interfere with the same. The appeal being without merit fails."

4.Being aggrieved and dissatisfied with the impugned Orders the appellant filed the instant appeal before this Tribunal on the ground incorporated in the Memo of Appeal. Mr. Nadeem Ahmed Mirza (Consultants) and appeared and argued inline with the grounds of appeal and stated further that the imported banana has been rotten due to delay clearance and the appellant has to suffer a colossal loss in the shape of cost of goods, paid duty and taxes, profit etc, and on the consignment more than Rs.10 million container detention/rental/plugging charges and 8 million terminal demurrage/storage charges have accumulated and for payment of which Messrs Riazeda (Pvt.) Ltd (shipping company) and Karachi International Container Terminal (Pvt.) Ltd (KICT) are pressing him hard, in spite no fault or default on his part and against the fact that the goods after confiscation are deems to be the property of respondents in terms of the expression of Section 182 of the Customs Act, 1969. The grounds of appeal are reproduced herein below for easement and perusal.

(i)The respondent No. 1 and his subordinate held the clearance of the appellant consignment since, 27.06.2015. Such hold amount to notional seizure as held by High Court of Sindh in reported judgment 2003 PTD 2821 Syed Muhammad Razi v. Collector of Customs (Appraisement), Karachi and 2 others in the following words:--

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

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

(iii)In the instant case inspite of notional seizure as far as 27.06.2015 under Section 168(1) inspite of the said fact the no notice under Sections 168(1) and 171 have been served on the appellant to this date. Non serving the notices render the whole proceeding infested from legal infirmity and as such of no legal effect as held by Superior Judicial Fora in umpteenth reported judgment e.g. PTCL 1994 CL 22(sic), 1983 PCr.LJ 620,1983 PCr.LJ 623, 1983 PCr.LJ 786, PTCL 1983 CL 47(sic), 1987 PCr.LJ 1413, 1987 PCr.LJ 1091 and 2004 PCr.LJ 1958.

(iv)That it is mandated requirement of law that a show cause notice has to be issued by the competent authority having jurisdiction after going through the fact of the case and applicable provision of the Act and penal clauses so that the person to whom it has been served is able to reply the allegation. In the instant case the show cause notice dated 24.07.2015 was complete in all respect and has been transmitted by the competent authority, that can only be withdrawn in case of any discrepancy in figure by the issuing authority only and by none else. By withdrawing the show cause notice issued by the Principal Appraiser, the respondent No. 3 encroached his jurisdiction. His this act is in derogation of the law laid down by the Superior Judicial Fora and render the show cause notice dated 04.08.2015 as void and ab-initio and such coram non judice.

(v)That irrespective of the above fatal illegality, second show cause notice is permitted in a situation where the show cause notice issued earlier contains several errors. Upon examination of the show cause notices dated 04.08.2015, it can be gathered that it is based on same facts as narrated in show cause notice dated 24.07.2015 i.e. based on the opinion communicated by the Department of Plant Protection in letters dated 03.07.2015 and 06.07.2015. Beside is nullity to the submission made by the appellant clearing agent during the course of assessment and in the letter dated 02.07.2015 to Collector of Customs. Since the first show cause notice is complete, second show cause is barred by principal analogous to res-judicata and this has been held in clear terms in reported judgment AIR 1961 Cal.195.

(vi)The respondent No. 3 has also no power under section 179 of the Customs Act, 1969 by virtue of no evasion of duty and taxes as these have to be collected upon allow of clearance for home consumption and if it is not allowed, no duty or taxes are payable and in that case, it squarely falls within the ambit of Section 80 of the Customs Act, 1969 and under the said Section power vest with the Principal Appraiser under Notification S.R.O. No.371(I)/2002 dated 15.06.2002 read with Section 2(a) ibid. Meaning thereby that he is the only authority to proceed in the matter instead of respondent No. 3 because it is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. Since, in Serial No. 80 of SRO 371(I)/2002 dated 15.06.2002, the respondent No. 3 figure nowhere, rendering the show cause notice as well as the order-in-original to be passed as ab-initio and void and the super structure built there upon is ought to be crumble down.

(vii)That if the opinion often adopted by the hierarchy of customs that superior authorities can exercise the powers of their subordinate under section 4 of the Customs Act, 1969 is considered valid for a while then the hierarchy of distribution of jurisdiction explicitly provided by section 179 of the Act and SRO 371(I)/2002 dated 15.06.2002 shall be rendered redundant. Also the consequent result would be a total anarchy where the superior officers would be making all efforts to exercise the adjudication powers clearly conferred by law upon their subordinates. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law, the special provision shall prevails (reference is invited to the case of Lt.-General (Retd) Shah Rafi Alam v. Lahore Race Club 2004 CLD 373). The power of adjudication, as already observed ,is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i.e. that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL 2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179 and SRO 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 provisions of the statutes, the later provision prevails and has to be given precedents (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587 is referred. Their lordship observed 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 unwarranted by law (The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 @ p.339) an act done which the person doing it has no jurisdiction at all to do or which was clearly outside the sphere 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. M/s. United Grain and Fooder Agencies PLD 1964 SC 97). The Constitution jurisdiction can thus be exercise when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No. 1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own cost".

That while dealing with the powers of adjudication, it is needless to observe, that our Supreme Court has 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 and Order in Custom Appeal No H-510/2008 Dewan Farooque Motors Ltd. v. Collector of Customs(Appeal).

(viii) The opinion of the Director, Directorate of National Food and Security and Research Department of Plant Protection, Karachi that the Banana of Indian origin is prohibited under Rule 20 of Pakistan Plant Quarantine Rules, 1967 is nullity to its expression. Which read as:--

20. Banana:

Importation of banana suckers and fruits prohibited from South West of India and any other country where the disease have been reported to have occurred to prevent the spread of bunchy Top virus disease and Panama disease due to the fungus. (Fusarium oxysoporum var.)

The conscientious study of the provision it is abundantly clear that the importation of Banana sucker and fruit are prohibited from South West of India and any other country. The Banana imported by the appellant is not of South West of India origin instead of Gujrat region, which does not falls by any stretch of imagination within the region of South West of India. Resultant, the said Rule is not applicable on the imported banana of appellant , forming opinion contrary to the Rule 20 of Pakistan Plant Quarantine Rule, 1967 is stretching the Rule in accordance with once own whims and wishes is not permitted under law.

(ix)The statute has to be read as it has been expressed, nothing can be added or subtracted in any statute to suit ones opinion as that amounts to redundancy, which has to be avoided. Even otherwise it is settled rule of interpretation that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment. There is no equity about a tax. There is no presumption as to tax nothing is to be read in , nothing is to be implied. One only look fairly at the language used nothing else to be done" as held by High Court and Supreme Court of Pakistan in their reported judgment starting from Abbassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463 to Messrs Fazal Ellahi v. Additional Collector of Customs, 2011 PTD (Trib.) 79. Even otherwise "if there are two or more interpretation of our provision pertaining to levy of tax on account of anomaly/ambiguity the one favorable to tax payer has to be adopted by the court" as per judgment reported as 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227. It is considered opinion of the Superior Judicial Fora in a number of judgments "that tax payer should not be made to suffer on account of bad drafting of the statute". Reliance is placed on the judgment of High Court of Sindh reported as 2004 PTD 901, wherein the Hon'ble Judges of the Bench held that

"While interpreting the taxing statute the Court must look to the word of statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed. It cannot import provision in the statute as to support assumed deficiency."

"While finding out intention of the legislature language of the law is not be seen and if the intention is cleared from the language used nothing else is to be done."

"if the legislature has not sufficiently expressed itself Court has no duty to act for it, for court is concerned with what it lays down and not what it has only in mind, but once it has been articulated enough Court does not more than give effect to the intention that it has succeeded in expressing. The intention may be expressed in faulty language, in very faulty language, in-extremely faulty language, this is of no consequence as long as there is no doubt as to the intention. A draft'sman mistake as long as it relates to form in which the legislative intend is expressed and not to the substance of it , is of no effect. Of course ones an element of doubt as to the intention of the legislature enter the field consideration otherwise irrelevant may all become relevant.

(x)That infact the disease referred in Rule 20 of Pakistan Plant Quarantine Rule, 1967 namely bunchy top virus and Panama disease stood eradicated since long and for that reason the import of banana from whole of the India is permitted as evident from Appendix-G to the Import Policy Order, 2013 and 2015 issued by Ministry of Commerce and which contains no prohibition. This was done by an authority, which is competent to either ban or restrict import of any good subject to fulfillment of conditions given in Column 3 of the Appendixes. The respondent No. 1 has to allow the clearance after realizing of leviable duty under first Schedule to the Customs Act, 1969 and in consultation with the Appendixes of the Import Policy Order. It is neither mandated upon the Director, Directorate of National Food and Security and Research Department of Plant Protection, Karachi to issue any direction nor on the respondents Nos. 1 and 3 to comply the said direction as held by Hon'ble High Court of Sindh in reported judgment 2015 PTD 1607 M. Yasin and Co. v. FOP.

"The Federal Government in exercise of powers under section 3 of the Import and Exports (Control) Act, 1950 (Act XXXIX of 1950) may by an order published in the official Gazette, prohibit, restrict or otherwise control the import or export of the goods of any specified description and regulates the same through license system and sub-section (3) of Section 3 of ibid Act, provide that section 16 of the Customs Act, 1969 shall be given effect in respect of the goods, the import and export of which has been prohibited or restricted. The Federal Government has the sole authority to regulate import and export of the goods and impose condition for grant of import and export license , issue orders for carrying out the purpose of Import and Export (Control) Act, 1950 and make laws for the import and export of the goods across the borders. Where the function of CBR is to give effect to the Customs Act, 1969, Sales Tax Act, 1990 and the Central Excise Act, 1944 in the light of Policy of the Federal Government as contemplated by the Import and Export (Control) Act, 1950. There is clear distinction between the powers of the Federal Government under Import and Export (Control) Act, 1950 and the powers of the CBR under Customs Act, 1969, Sales Tax Act, 1990 and Central Excise Act, 1944. The framing of policy relating to the Import and Export of goods with or without any restriction is the executive function of the Federal Government and the Central Board of Revenue, subservient to the Policy of the Federal Government may frame Rules under the above referred statute subject to the provision of Section 16 of the Customs Act, under which it is prerogative of the Federal Government to prohibit or restrict the bringing into or taking out of Pakistan any goods by any route including the goods enumerated in 3rd Schedule to the Customs Act, 1969. Under Section 9 of the Customs Act, 1969 the FBR can declare the places as Custom Port, Custom Airport and Land Customs Station or Clearance of the goods to be imported but is not empowered under the said section or any other provision of the law to restrict or prohibit export or import of the goods through Rules. "

(xi)That likewise, neither the Ministry of National Food Security and Research nor its allied Associates Departments e.g. the Department of Plant Protection are empowered to lay restriction on the import and export of any goods. Even otherwise, Rule 20 of the Pakistan Plant Quarantine Rules, 1967, is in fact obsolete beside in conflict with the Import Policy Order, 2013-2015, resultant, the Import Policy Order, 2013-2015 prevails upon Rule 20 of the Pakistan Plant Quarantine Rule, 1967. While following the said dictum, the Collectorate used to allow clearance of the Bananas of Indian origin till March 2015 upon scanning of only phytosanitary certificate instead of RO issued by the Plant and Protection Department.

(xii)That no RO is required for clearance of banana of Indian origin under Serial No. 3 of Part-I of Appendix-B to Import Policy Order 2013-2015, except upon production of aflotoxin report that the consignment is free from any pest/disease from the Plant and Protection Department of Ministry of National Food Security and Research for the Fresh and Dry fruit falling under PCT given in column 1 of Sr. No. 5 to the Import Policy Order 2013 and 2015, which is specific for fresh and dry fruit. The PCT 0803.9000 is non existent in column 1 of Serial No. 5, resultant, the condition laid down in column 3 is not applicable on the import of banana of Indian origin.

(xiii)That as regard the opinion of respondents that in any case RO from Plant Protection, Department under Serial number 3 of Part-1, of Appendix-B to the Import Policy Order 2013-2015, is required by virtue of availability of the word "fruit" in the said serial number is without any substance instead misconceived, if the intention of the legislature was so as interpreted by the officials of the respondent No. 1 and Plant Protection Department Karachi and the Respondents Nos. 1 and 3. Serial No. 5 meant for "fresh and dry fruit" would not had been purposely framed and inserted Sr. Nos. 4, 6, 7, 8 and 9, because all these products also falls within the ambit of Sr. No. 3 ibid. The fact of matter is that each Serial No. is independent and specific and applicable on import of the goods listed under the respective serials Nos.6, 7, 8 and 9 and has no nexus with the Sr. No. 3 and applicable individually on the imports of the goods expressed in column No.1 of Part I of Appendix-B of Import Policy Order, 2013-2015. When a specific provision of law is available in any given situation the specific provision has over riding effect on general provision and this stood validated from the opinion of FBR communicated vide Office Memorandum C.No. 8(9) Tar-I/92 dated 21.06.2010 to Ministry of Commerce for resolving the issue of import of betel nut, falling under Serial Nos. 5 and 6 of Part-I of Appendix B to the Import Policy Order, 2013-2015 simultaneously.

(xiv)That as regard the opinion of respondent No. 3 that the official of Plant Protection Department has to issue a Release Order in any way being a watch dog agency for Food and Agriculture Safety and Health, it is also without any substance because if that would had been the case the PCT of the Banana would had been incorporated in column 2 of Serial No. 3 of the Import Policy Order, 2013, clearance of those is not subject to RO instead are connected with the condition laid down in column 4. Likewise, the opinion that the official of Plant Protection has already disallowed the clearance of the goods of the appellant is also without any lawful authority/jurisdiction, due to the fact they have no mandate to disallow import of good, it is for the Ministry of Commerce alone and by none else. Rendering the opinion of respondent No. 3 and Officials of Plant Protection without lawful authority, hence, ab-initio and void.

(xv)That since, the import of banana of Indian origin is importable without any condition, upon uploading of phytosanitary certificate issued by the exporting country in accordance with the regulation of the importing country i.e. Government of Pakistan and this was honored till March 2015, which is dis-honored in the appellant case vide Nos. 743207 and 743209 dated 11.06.2015 certifying with clarity that "the banana so imported are free from quarantine pest and practically free from other injurious pest" and so the corrigendum dated 08.07.2015 certifying that the "consignment is free from any disease" and which have already been uploaded upon receipt of view message under Rule 437 of Sub Chapter III of Chapter XXI of Customs Rules, 2001. Holding appellant consignment inspite submission of phytosanitary certificate is without any lawful authority instead illegal and so the confiscation through the impugned order-in-original.

(xvi)That when the bananas of Indian origin were allowed clearance by the Collectorate till the March 2015 and 50 consignments of coconut in the month of July and August 2015 upon submission of phytosanitary certificate instead of PPRO, which according to the Director, Directorate of National Food and Security and Research Department of Plant Protection, Karachi is mandatory under serial No. 3. Holding and confiscating of appellant consignment is in negation of the existing practice beside an act of giving a differential treatment, which is tantamount to discrimination barred under Articles 4 and 25 of the Constitution of Islamic republic of Pakistan and this has been held in umpteenth reported judgment e.g. 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts have observed that "there exists no power to target incidence of tax in such a way that similarly placed person be dealt not only this similarly, but discriminatingly". Whereas, in reported judgment PTCL 2005 CL 138 the Hon'ble Supreme Court held that "A facility allowed to some one and denied to other is discrimination". The Apex Court further held in reported judgment 2010 SCMR 431 that:

"Doctrine of equality, as contained in Article 25 of the constitution, enshrine golden rules of Islam and states that every citizen, no matter how high so ever, must be accorded equal treatment with similarly situated persons---State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class---In fact all legislations involve some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not---What however, is prohibited under principle of reasonable classification, is legislation favoring some within a class and unduly burdening others---Basic rule for exercise of such discretion and reasonable classification is that all persons placed in similar circumstances must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not offend spirit of Article 25 of the Constitution."

(xvii) The order passed by the respondents Nos. 2 and 3 shows that it have not been passed with the application of mind and provision of the Act. Instead is a non speaking order and does not conform to the mandated requirement of section 24-A of the General Clauses Act, 1897 and this stood validated from the fact the respondent No. 2 has not incorporated the argument advanced by the appellant clearing agent in the reply to the show cause notice, and likewise respondent No. 3 miserably failed to controvert the grounds of appeal. Both passed the order on personal whims and wishes and this was purposely done for the reason that they desires to pass order contrary to law, having no nexus with the argument of the appellant, further stood validated from the fact that the Orders 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 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib.) 619.

5. No cross-objection under subsection (4) of Section 194-A of the Customs Act, 1969 has been submitted by the respondents to this date, instead comments were submitted, verbatim of rebuttal on grounds of appeal are reproduced here-in-below:

"The contents of ground (1 to xviii) of the appeal are vehmentaly denied, it is respectfully submitted that the appellant cited judgment was not relevant in the instant case. The Adjudicating authority has rightly established the case and held that:--

The case record has been examined , written and verbal arguments of Consultant have been considered and as a result, the question raised above have been determined/answered as under:--

(i)The bananas are importable from India and these are not included in the negative list i.e. Appendix-G of the Import Policy Order.

(ii)As per Sr. No. 3 of Part-1 of Appendix-B of Import Policy Order, against all species of plants and parts thereof, whether living or dead, stems, branches, tubers, bulbs, corns stock, bud-wood, layers, slips, suckers, green scum on stagnant pool, leaves, fruits, rhizomes etc, a valid PPRO is required. Hence, the bananas imported in the instant case, cannot be released in the absence of PPRO and in the wake of information communicated vide the Plant Protection Department Ministry of National Food Security and Research communicated vide letter No. C. No. PQS-2015/2016 (Import- Banana) dated 06.07.2015.

(iii)The certificate from the country of export i.e. India that the goods are free from quarantine pest and that the same are in conformity with the phytosanitary regulations of the importing country, is not sufficient to release the goods as it does not fulfill the condition of Sr. No. 3 of Part-I of Appendix-B of Import Policy Order.

6.Rival parties heard and the case record perused.

7.I have noticed that the containers have been held/detained by the respondent No. 1 on 27.06.2015, this holding/detention squarely falls within the ambit of notional seizure and provision of Section 168(1) applies with full force as interpreted and held by the Hon'ble High Court of Sindh in reported judgment 2003 PTD 2821 Syed Muhammad Razi v. Collector of Customs (Appraisement), Karachi and 2 others. Since, detention which is notional seizure has been made by the respondent No. 1 under the provision of 168(1) of the Customs Act, 1969, a notice to the said effect under the said provision and Section 171 of the Customs Act, 1969 has to be mandatorily to be served on the person, from whose possession the goods have been seized. In the instant case no notice either under section 168(1) or 171 of the Customs Act, 1969 have been served on PICT or the appellant to this date. Non serving the notices render the whole proceeding as of no legal effect, hence, void and ab-initio as held in the reported judgment referred in para 4 (iii) supra and which is applicable with full force on the case of the appellant. This vital lapse render the whole proceeding without any lawful authority/jurisdiction.

8.That upon perusal of show cause notice, it has been noted that no provision of the Act has been spelled out in the show cause notice, which the appellant contravened. Instead a non issue has been made an issue, on the strength of which the case can be at the most be termed as said to be non fulfillment of condition of Import Policy Order, i.e. of no revenue loss. Therefore, it falls within the provision of Section 80 of the Customs Act, 1969 under which Principal Appraiser has jurisdiction in terms of Notification No. S.R.O. 371(I)/2002 dated 15.06.2002 and he is the only authority to adjudicate the instant case as defined in Section 2(a) of the Customs Act, 1969 and he rightly transmitted show cause notice dated 24.07.2015, which he never withdrew to this date being the competent authority. In the presence of the said show cause notice, the respondent No. 2 issued 2nd show cause notice dated 04-08-2015 manually inspite not permitted under the WeBOC Regime to the appellant, while ignoring the fact that 2nd show cause notice is not allowed to be issued on the same issue. While doing so respondent No. 2 on one hand committed grave illegality and on the other hand usurped the powers of his subordinate i.e. Principal Appraiser , which he could have only exercised under Section 4 of the Customs Act, 1969 during the course of administrative work not for the purpose of adjudication, which are to be exercised by the authority, who is empowered to do so and this has been held by the Superior Judicial Fora in reported judgment relied upon by the appellant and which are referred in para 4 (vi to viii supra). By laying hands on the case for which he was not competent, the respondent No. 2 acted without lawful authority/jurisdiction and super structure built there upon by way of order-in-original and order-in-appeal were without power/jurisdiction and coram non judice. This proposition of law stood further validated by the Hon'ble Supreme Court of Pakistan in the case "Izhar Alam Farooqi Advocate v.Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240) has held that the Institution specifically barred to adjudicate any matter to the extent of certain mandatory limits shall not be competent and had no jurisdiction to deal with any such matter exceeding the limit subscribe under the law. Hon'ble Supreme Court of Pakistan has held in the case of "Sardar Ahmed Yar Khan Jogzai v. Province of Balochistan" 2002 SCMR 1022 that "where essential features for assumptions of jurisdiction is contravened or forum exercises powers not vested in it or exceed authority beyond limit prescribed by law, the judgment is rendered coram non judice and in operative." Hon'ble Supreme Court of Pakistan in re "Faqir Abdul Majeed Khan v. District Returning Officer and others" 2006 SCMR 1713 has observed that "by now it is well settled that any order which suffers from patent illegality or without jurisdiction, deserve to be knock down.

9.That in order to dilate on the issue that as to whether import of banana from India is subject to any condition I have scrupulously gone through the judgment of the Hon'ble High Court of Sindh reported as 2015 PTD 1607 M.Yasin and Co. v. FOP and Part-I of Appendix-B and Appendix-G to the Import Policy Order, 2013 and 2014, Rule 20 of Pakistan Plant Quarantine Rules, 1967. The Hon'ble High Court of Sindh in the referred judgment with clarity has held that the Federal Government is empowered to prohibit, restrict or otherwise control the Import or Export of the Goods of any specified description through a notification, whereas the FBR and its field formation have to implement that in the course of the specified duty of allowing import or export. Unless, restriction is available in the Import Policy Order, the respondents are not empowered to prohibit or restrict import of any goods. The Federal Government has allowed the import of banana of Indian origin without any conditionality and for that reason either the word "banana" and its PCT heading is not incorporated in Appendix-G to the Import Policy Order, 2013 inspite of availability of Rule 20 of the Pakistan Plant Quarantine Rules, 1967, which otherwise restricts import of banana sucker and fruits from South West of India only, not from whole of India, resultant Appendix-G prevails upon Rule 20 of the Pakistan Plant Quarantine Rules, 1967 and the respondent has to allow or dis-allow import of banana in accordance with the Appendix-G to the Import Policy Order, 2013 as per which Import of Banana of Indian origin without any exception is freely importable. That as regards to putting reliance by the respondents on the letter dated 03.07.2015 of Director, Directorate of National Food and Security Department of Plant Protection, Karachi and dated 06.07.2015 of Plant Quarantine Office Sea Port, Karachi that the banana of Indian Origin is not importable in terms of Rule 20 of the Pakistan Plant Quarantine Rules, 1967 and import of banana from the rest of the countries of the world is subject to issuance of release order under Serial No. 3 of Part-I of Appendix-B of the Import Policy Order by the Plant Protection Department and direction of the Quarantine Officer to destroy the consignment and should not be released under any condition are not valid, instead without lawful authority and jurisdiction. The respondents were not under any obligation to accede to the direction given in letters, it is settled law that letters of subordinate authority does not alter or amend the condition of the statute/notification. The respondents in utter disregard of their specified duties entertained the letters forwarded by the Director, Directorate of National Food and Security Department of Plant Protection, Karachi and Quarantine Officer of the said department apparently to please them and causing enormous loss to the appellant. The banana imported by the appellant falls under serial No. 5 of Part-I of Appendix-B of the Import Policy Order, 2013, specifically carved and inserted by the Ministry of Commerce with the heading "fresh and dry fruits" for import of which aflotoxin report is desired and the fruits falling under the said serial number are listed with PCT headings in column 4. In which PCT heading of banana i.e. 0803.9000 is non-existent, resultant, banana stood ousted from the serial No. 4 and no aflotoxin report is desired for clearance of bananas. It is also of vital importance to deliberate upon the wisdom of Director, Directorate of National Food and Security Department of Plant Protection , Karachi and respondents that RO is desired under Serial No. 3 of Part-I of Appendix-B to the Import Policy Order , 2013 for the clearance of banana and that has to be issued by the Plant Protection Department is also without any substance and lawful authority. If the intention of the legislature was as opined by the Director, Directorate of National Food and Security Department of Plant Protection, Karachi and respondents, there exist no rationale for the Federal Government to direct Ministry of Commerce to carve and insert 7 separate serial numbers containing different conditions for the import of namely (4) Sugarcane seed, banana and suckers, vegetable seeds, seed potatoes, oil seeds, flower seeds and other field crop seeds, including Tubers, Rhizomes, Roots, and Cutting etc. (5) Fresh and Dry fruits, (6) Betel Nut (Areca) (7) Red Chilies, (Whole) (8) Wheat and (9) Cotton seeds, when these all are available in Serial No. 3 reading as "All species of plants and parts thereof. Whether living or dead stems, branches, tubers, bulbs, corms, stock, bud-wood, layers, slips, suckers green scum on stagnant pool, leaves fruits rhizomes etc.". The construction, interpretation and application of each serial number subsequent to serial No. 3 are independent and applicable on the goods listed therein only inspite being available in serial No.3. Serial No. 3 comes into operation wherein the goods imported are of PCT given in column 2 are the left out of PCT's 0601.1010 to 0602.9990, for which the word "respective heading" is used. These words does not means in any manner and under any circumstances respective headings of Customs Tariff. If the intention of legislature was as opined in the case by the respondents, the column 2 of serial No. 3 would had containing the words "only respective heading without mention of PCT's as given in Serial No. 13 carved for "All edible product". My opinion stood validated from the letter of the FBR dated 21.06.2010 in regards to applicability of serial numbers 5 and 6 of Part-I of Appendix-B of the Import Policy Order simultaneously was removed by ordering in spite of appearing of "betel nuts in serial numbers 5 and 6, only condition laid down in S.No. 6 is applicable not 5, while laying reliance on the rule of interpretation of statute that "when both general and specific provisions of Law are available in any given situation, the specific provision will have overriding affect on general provisions".

10.The Director, Directorate of National Food and Security Department of Plant Protection, Karachi and respondents have doubted the wisdom of the Federal Government by interpreting the serials Nos. 3 and 5 in accordance with their own whims and wishes and understanding in order to achieve the desired result and that also for causing loss to the appellant specifically and generally to the exchequer by banning the import of banana of Indian origin, which is not banned or restricted otherwise, by terming the serial No. 5 of Part-I of Appendix-B and Appendix-G to the Import Policy Order, 2013 absurd, In ignorance of the settled law that "absurdity cannot be attributed to the legislature" (2016 PTD 1702) Dowell Schlumberger (Western) S.A. v. FOP) and Rule of Interpretation of fiscal statute that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment there is no equity about a tax. There is no presumption as to tax nothing is to be read in, nothing is to be implied. One only look fairly at the language used nothing else to be done". Notwithstanding, in case the respondents were in agreement with the Director, Directorate of National Food and Security Department of Plant Protection, Karachi, the proper course of action available with them was to ask him to get the serials Nos. 3 to 9 of Part-I and Appendix-G of the Import Policy Order, 2013 amended instead of pressurizing them because they have to act in accordance with the available Appendixes of the Import Policy Order, 2013, ironically which are also available without any slightest change in the Import Policy Order, 2016, joined hands with him for causing loss to the exchequer and that also while ignoring the observation of the Hon'ble High Court of Sindh given in Order dated 20.03.2014 in C.P. No.D-1027/ 2014- of Digicom Trading Company (Pvt.) Ltd. and another v. FOP and others, "wherein they held the import of mobile phone on the pretext that the Hon'ble Supreme Court of Pakistan has directed them not to allow the import of phone without proper "IMEIs" in the absence of any restriction to the said effect in the Import Policy Order, against which the importer filed the referred C.P., the clearance of goods were allowed with the direction that the FBR/respondent No. 1 has tried to implement the observation of the Supreme Court itself in spite having no authority either to amend and or to implement such condition laid down by the Hon'ble Supreme Court, without there being proper amendment in the Import Policy Order, 2013. It was further held that despite reservation by respondent No. 1 (FBR) regarding implementation of such a decision the Task Force concluded otherwise. What was required by the Task force to seek a proper amendment in the Import Policy Order, as it is a well settled law that respondent No. 1/FBR neither can allow or restrict export or import of any goods or commodity on its own without there being a corresponding and specific provision in the Export and Import Policy Order unless, amendment is not made by the Federal Government holding of consignment of mobile phone is without lawful authority and directed the Registrar of the High Court to send a copy of the Judgment/Order to the Chairman of Respondent No.4 who shall circulate it to all members of the Task Force, where after the decision arrived at Agenda "b" in the meeting held on 06.02.2014 be referred or recommended to Ministry of Commerce for carrying out the necessary amendment in the Import Policy Order, 2013 so that the direction of Hon'ble Supreme Court are implemented in its letter and spirit and in a manner as is required under the law and not through decision in meetings and or via issuance of letters"

11.I am also flabbergasted to note that banana of Indian origin have been allowed to be imported into Pakistan from different Dry Ports of country even todate and from Karachi Port till March 2015 upon scanning of phytosanitary certificate upon receipt of view message under Rule 437 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001, in the presence of serial No. 3 of Part I of Appendix-B of the Import Policy Order, 2013 and without submission of Release Order of Ministry of Food and Security, Plant Protection Department by the respondent without any reservation by virtue of the fact that the interpretation of Serials Nos. 3 and 5 was made by the respondent in accordance with its essence and spirit. All of a sudden one fine morning the import of Banana of Indian origin was banned by the respondent on their own in spite importable under Appendix-G of the Import Policy Order, 2013, purportedly on the direction of Director, Directorate of National Food and Security Department of Plant Protection , Karachi, who has no mandate to either interpret the provision of the statute nor to amend or alter in accordance with his opinion. This abrupt dis-continuation by the respondents is without lawful authority/jurisdiction and caused colossal loss to the exchequer, which it would have earned in the shape of duty and taxes on the imported banana of Indian Origin. This act of respondents on one hand is detrimental for the economy of the country and on other hand is tantamount to giving a differential treatment to the appellant and the importers of Karachi, not permitted under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial Fora in the judgment relied upon by the appellant in para 4(xvi) supra, which are applicable with full force on the case of the appellant.

12.That as deliberated above, I have noticed with concern that the orders passed by respondents are not judicial order nor independent and reflect application of mind, instead based on personal biased opinion, in derogation of Serials Nos. 3 and 5 of Part-I and Appendix-G of the Import Policy Order, 2013 and law laid down by the Superior Judicial Fora. The order smacks of mala fide, stood validated from the fact that not a single argument of the appellant advanced before the respondent No. 2 were considered or rebutted. Likewise, respondent No. 3 failed to rebut a single ground of the memo of appeal. Such type of orders are termed as to be passed in slipshod manner and deems to be non speaking order without application of mind and do conform to the mandated requirement of section 24-A of the General Clauses Act, 1897. 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. 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 referred in para 4(xvii) supra.

13. On the strength of the above deliberation and gaining strength from the law laid down by the Superior Judicial Fora particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio decidendi observed by the Superior Courts, I, hereby hold that import of banana of Indian origin is not restricted under Appendix-G of the Import Policy Order, 2013 and Serial No. 3 of Part-I of Appendix-B is not applicable and are to be released upon submission of phytosanitary certificate issued by the Competent Authority of the exporting country only. I, therefore, vacate the show cause notice and set aside the order passed thereon, during the hierarchy of the customs being illegal, void and ab initio, appeal is allowed as prayed and I direct the respondents to pay the cost of goods including the refund of paid duty and taxes upfront at the time of filing Goods Declaration without calling for refund application.

14.Order passed and announced accordingly.

HBT/81/Tax(Trib.) Appeal allowed.