GOOD LUCK COSMETICS, KARACHI VS DEPUTY COLLECTOR OF CUSTOMS, 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 914 (2016)

2017 P T D (Trib.) 914

[Customs Appellate Tribunal]

Before Tahir Zia, Member (Judicial-II)

Messrs GOOD LUCK COSMETICS, KARACHI

Versus

DEPUTY COLLECTOR OF CUSTOMS and 2 others

Customs Appeal No.K-970 of 2015, decided on 30/08/2016.

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

----Ss. 2(a), 80, 83, 193, 193-A & 195---Customs Rules, 2001, Rr.438 & 442---S.R.O. No.371(I)/2001, dated 15-6-2001---Assessment of duty---Clearance for home consumption---Procedure in appeal---Powers of Federal Board of Revenue or Collector---After passing of assessment order under S.80 of the Customs Act, 1969 and under R.438 of Customs Rules, 2001 and clearance of goods under S.83 of Customs Act, 1969 and R.442 of Customs Rules, 2001 by adjudicating authority, in exercise of the powers vested upon him through S.R.O. No. 371(I)/2001, dated 15-6-2001; such order could not be disturbed by any authority for the purpose of preparing contravention report and adjudicating proceedings---Only course left for adjudicating authority, was to challenge the said order before the Collector of Customs (Appeals) under S.193 of the Customs Act, 1969---Collector Customs (Appeals), was empowered to incorporate in his order all the apprehensions, misreading of facts and contraventions of the provision of Act/Rules---Collector of Customs, upon receipt of the appeal and going through the facts and grounds, if would think that the contention of the Deputy Collector of Customs, Customs Intelligent Units, seemed to be correct and the duty and taxes had not been either levied or short paid on the basis of the goods already cleared, was empowered to issue show-cause notice to the importer, as expressed in second proviso to subsection (3) of S.193-A of the Customs Act, 1969---Deputy Collector of Customs, in the present case, instead of such prescribed method, reopened the assessment/clearance order under S.195 of the Customs Act, 1969---When the right of appeal had been accorded by the legislature in the provision of S.193 of the Customs Act, 1969, provision of S.195 of the Customs Act, 1969 was not operative and could not be exercised, by the authority defined therein---Act and commission of Deputy Collector of Customs, Customs Intelligence Unit, was in derogation of Ss.193 & 195 of the Customs Act, 1969 and being of no legal effect, was coram non judice.

Case-law in referred.

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

----S. 179---Power of adjudication, exercise of---Scope---Section 179 of the Customs Act, 1969, had expressed, that power of adjudication had to be determined by authority on the basis of "amount of duty and taxes" involved excluding the conveyance---In the present case amount of duty and taxes involved were Rs.3,878,131 (Rs.597,103) were paid upfront, Rs.111,045 were paid as additional duty and taxes upon receipt of view message from adjudicating authority---Rupees 2,832,993 was shown in show-cause notice as evaded amount of duty and taxes---Case involving such amount fell within the powers of Collector of Customs---'Additional Collector, Collectorate of Customs (Adjudication)' in the present case, issued show-cause notice and passed order-in-original, while usurping the powers of his superiors, which was not permitted by law---No body was allowed to usurp the powers of defined authority in the statute---Order passed without powers/jurisdiction, was ab initio, null and void and coram non judice---Exercise of jurisdiction by an authority was mandatory requirement and its non-fulfilment would entail the entire proceedings to be coram non judice.

Case-law in referred.

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

----Ss. 2(a), 80, 83, 193 & 194-A---Customs Rules, 2001, Rr.438 & 442---Notification No.371(I)/2002, dated 15-6-2002---Assessment of duty---Deputy Collector of Customs, (Customs Intelligence Units), in Second conducted examination report, which he termed valid and examination conducted earlier, on the basis of which assessment/ clearance orders under the provisions of Ss.80 & 83 of the Customs Act, 1969 and Rr.438 & 442 of the Customs Rules, 2001 were passed by adjudicating authority, in exercise of the power vested upon him through Notification No.371(I)/2002, dated 15-6-2002, were ignored---Rationale adopted by Deputy Collector of Customs and his subordinates during the course of conduction of second report for determining the quantity differently to the first examination report, was not understandable; as nothing was available in record validating the plea of Deputy Collector of Customs---Assessment made earlier, had to remain in field, unless not reversed by the appropriate authority defined in S.193 of the Customs Act, 1969 or the authority superior to him---Assessment order in field having not been challenged before the Collector of Customs (Appeals), within stipulated period of 30 days, had attained finality and could not be disturbed being past and closed transaction through limitation.

Case-law in referred.

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

----Ss. 32, 80 & 80-A---Constitution of Pakistan, Arts.4 & 25---Mis-declaration---Deputy Collector of Customs and Additional Collector had termed the goods as nut bolts' and assessed in the first examination report and passed the assessment/clearance order as 'motor cycle parts' in the second examination report---No rationale or reasoning had been recorded by the Deputy Collector of Customs for terming the 'nut and bolts' as 'motorcycle parts'---Additional Collector also failed to adduce any reasoning in the order as to how nut bolts were held by him to be specifically meant for motorcycle, in absence of expert opinion of the dealers of motorcycle assembler, or dealers of its parts---Authorities, were of the opinion that since, the importer had not produced any manufacturers' brochure, presumption was that nut bolts imported were deemed to be construed as motorcycle parts---Authority levelling the allegation, had to prove the same; no onus would lie on the importer to prove that imported nut and bolts were not motorcycle parts---Authorities were to prove that the imported nut bolts were in fact not nut bolts, but were motorcycle parts, irrespective of their shape---Opinion and finding of the authorities, were without any substance; due to the fact that motorcycle parts and accessories fell within the ambit of Heading 8714.1020, under which certain components of the motorcycle were listed and those were eighteen in number, in any one of the number nut bolts were not included---Nut bolt imported by the importer had been termed as component of motorcycle by stretching the word component in accordance to the meaning adopted by the authorities for penalizing the importer, despite no fault or default on his part---Nut bolts being not component, same would not fall under PCT Heading 8714.1020, but fell under PCT Heading 73.18---Authorities, needlessly had created an issue on the one hand; while ignoring the specific PCT under which the imported nut bolts fell; on the other hand had dealt the importer differently, inspite of the fact that importer stood on the same pedestal---Said act of authorities would amount to giving a partial and differential treatment---Person placed at the same pedestal, could not be treated differently, as it would constitute negation of Arts.4 & 25 of the Constitution---Detaining of subject consignment for conducting of re-examination and for preparation of contravention report by the Deputy Collector of Customs was without lawful authority and jurisdiction---Issuance of show-cause notice and passing of order-in-original by the Additional Collector were declared to be illegal, null and void and were vacated/set aside---Appeal was allowed as prayed.

Case-law in referred.

Nadeem Ahmed Mirza, (Consultants) for Appellant.

Kaleemullah, A.C. and Javed A.O. for Respondent.

Date of hearing: 27th April, 2016.

JUDGMENT

TAHIR ZIA, (MEMBER JUDICIAL-II).---By this order, I dispose of Customs Appeal No.K-970/2015 filed by the appellant against the Order-in-Original No.368918 dated 25.05.2015, passed by the Additional Collector of Customs (Adjudication-I), Custom House, Karachi (here-in-after to be referred respondent No. 3).

2.Brief facts of the case are the appellant imported a consignment of (i) 224 cartons comprised of 5300 kgs of Glass Beads size 0.12mm & (ii) 1868 kgs of Glass Chitton & (iii) 723 cartons comprised of 16977 kgs of Nuts and Bolts from China. Upon receipt of shipping documents, he transmitted Goods Declaration (here-in- after to be referred as GD) under the provision of Section 79(1) of the Customs Act, 1969 and Rule 433 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 with the MCC of PMBQ and as per pre-condition deposited upfront duty and taxes on the basis of declaration amounting to Rs. 597,103.00 vide cash No. C-KPPI-001995 on 16.02.2015. consequent to which his GD was numbered as KPPI-HC-41546-16022015. The nominated Appraiser instead of passing the assessment order on the basis of declaration and scanned documents under the provision of Section 80 and Rule 438 ibid, opted to get the goods examined first as expressed in Section 198 to be read with Rule 435 ibid., transmitted the GD to the Deputy Collector of Customs, Group-IV MCC of PMBQ (here-in-after to be referred as respondent No. 1) with his opinion, who approved that and transmitted the GD to the Officials posted at QICT, who after physical examination of the goods uploaded the report reading as "examined goods in the light of GD retrieved through WeBOC System Description: (1A) Glass Beads Size: 0.12mm approx. weight 5300 kgs (1B) Glass Chitton approx. weight 1868 kgs. (2). Nuts and Bolts approx. weight 16977 kgs. I/O Not shown. Check Weight 100% vide QICT Slip No. 2703545 dated 17.02.2015 found weight 25745 kgs . Group to check PCT value and all other aspects. Images are attached." The Appraiser concerned upon appearance of report on his desktop, in order to have clarity in declaration and uploaded report, transmitted view message in terms of Rule 437 for uploading of invoice, packing list and B/L, the appellant uploaded those being mandatory. The Appraiser concerned, thereafter while considering the uploaded documents as part of declaration in terms of section 2(kka) of the Customs Act, 1969 passed assessment order against each item with the remarks reproduced here-in-under as:

Item# Description/Qty HS CodeU. PriceRemarks

$/Kg

01.Glass Beads 7018.10000.72Assessed as per

ER/data

02.Nuts and Bolts 7318.19001.00Assessed as per

ER/data

03.Glass Chitton 7018.10001.09Assessed as per

ER/data

The system on the strength of the assessment order transmitted view message for payment of duty and taxes of Rs. 444,045.00 against additional amount of duty and taxes, which appellant paid vide cash No. A-KPPI-001624 on 19.02.2015, consequent to which the inbuilt authority in the system passed clearance order under section 83 of the Customs Act, 1969 and Rule 442 of Customs Rules, 2001 and GD was transmitted to Gate staff for check-out. That when the appellant transporter approached the terminal operator after obtaining delivery order from the shipping company, they showed their inability to intimate the charges of terminal and so the delivery due to blocking of GD by the Deputy Collector of Customs, CIU, MCC of PMBQ (here-in-after to be referred as respondent No. 2). The appellant approached him and inquired that as to why his container has been blocked, to his utter surprise, The subordinate of respondent No. 2, informed him that it is opinion of respondent No. 2 and the higher authorities that in the consignment in question that duty and taxes are not being charged/paid correctly, therefore, hold is being placed for re-examination, to which appellant representative tender agitation, but that was ignored and re-examination was carried out and was uploaded in the system, reading as "the container re-examined by CIU Staff, report is as under. This is the case of mis-declaration (1) Glass Beads assorted size 0.4, 0.6, 0.8 and number 12/0 Net Weight 650 kgs and number 14/0 Net Weight 350 kgs., (2) found undeclared during re-examination adhesive plastic chitton/ resins approx net weight 2800 kgs (3) found during re-examination adhesive glass chitton 16/0 approx. net weight 1100 kgs., (4) declared net weights nuts and bolts however during re-examination found assorted motorcycle parts approx net weight 19500 kgs. I/O China and not shown, checked weight 100% vide QICT Slip No. 2703545 dated 17.02.2015. Found weight 25745kgs. Group to check PCT value and all other aspects images are attached."

3.The respondent No.2, on the basis of determination of difference between the two examination reports framed contravention report and transmitted to respondent No. 3 stating inter alia that the appellant as against declared and found in the 1st examination report/ passed assessment/clearance orders dated 19.02.2015 found as (i) Glass Beads assorted size 0.4, 0.6, 0.8 and number 12/0 Net Weight 650 kgs (ii) Glass Beads assorted size number 14/0 Net Weight 350 kgs (iii) adhesive plastic chitton/resins approx net weight 2800 kgs (iv) adhesive plastic chitton/resins number 16/0 approx net weight 1100 kgs (v) assorted motorcycle parts approx net weight 19500 kgs. This proves that the appellant deliberately concealed and mis-declared the actual description, classification and value of the imported goods for causing loss to the exchequer from the leviable duty and taxes amounting to Rs. 2832993.00, attracting the provision of Section 32(1) and (2) of the Customs Act, 1969 punishable under clause (14) of Section 156(1) ibid. and S.R.O. 499(I)/2009 dated 13.06.2009. The respondent No. 3, upon appearance of contravention report in her folder transmitted the same to the appellant with the direction to submit explanation to the leveled charges and to attend the hearing. The appellant consultant submitted the reply vide dated 19.03.2015 and through which the charges leveled in the show cause notice were denied in totality and respondent No. 3 was asked to vacate the show cause notice. Inspite of the said fact, the respondent No. 2 lodged FIR dated 20.03.2015 on the basis of allegation spelled out in the show cause notice. The appellant sensing the intention of the respondent No. 2 filed Suit No. 471/2015 for release of the goods. The Hon'ble High Court of Sindh allowed the same through order dated 26.03.2015 that the amount of differential duty and taxes as calculated by the respondent No. 2 be deposited with the Nazir of the High Court. The appellant approached respondent No. 2 after having NOC and certificate of the Nazir for release of the goods, the respondent No. 2 refused to release the goods on the plea that unless the appellant submits a post dated cheque equivalent to fine and penalty anticipated to be imposed by the respondent No. 3 in the order-in-original. Resultant, appellant filed contempt application with the Hon'ble High Court of Sindh, on which order dated 24.04.2015 was passed in these words "in case orders are not complied with the same may be treated as a contempt of court." The respondent No. 2, released the goods, whereas respondent No. 3 passed order dated 25.05.2015 against the appellant, operative part of the order is reproduced as under:--

"I have gone through the case record and considered written/ verbal arguments of the counsel of the respondent and department. As per record the respondent imported a consignment declared to contain (i) Glass Beads Qty: 224 Ctns and (ii) Nuts and Bolts Qty: 723 Ctns. On examination the goods were found to be (i) Glass Beads 0.4, 0.6, 0.8 and No.12/0 net weight 650 kgs (ii) Glass Beads No.14/0 net weight 350 kgs (iii) Adhesive Plastic Chittons/resins net weight 2,800 kgs (iv) Adhesive Glass Chittons 16/0 net weight 1,100kgs (v) Assorted Motorcycle parts net weight 19,500 kgs. During the course of hearing the respondent argued that item No.(iii) is made of 'Glass' and not of 'Plastic', therefore, in order to verify actual description of goods representative samples were forwarded to Custom House Laboratory for test. The lab test report has confirmed that the samples were found to be of 'Plastic', which clearly proves that the contention of the respondent with respect to (undeclared) item No.iii i.e. 'Adhesive Plastic Chittons/resins' was not correct. The argument of' respondent with regard to item No. iv that the imported goods are 'Nuts and Bolts' and not parts specially meant for Motorcycles and of general use, classifiable under PCT heading 73.18 instead of 87.14. The respondent could not produce any manufacturer's catalogue/broacher in support of his claim that goods are not Motorcycle parts. I have seen/examined samples of the impugned goods which are clearly identifiable 'cable parts' meant for Motorcycle. The Department has correctly applied the Valuation Ruling in terms of Section 25-A(2) read with section 25-A(A) of the Customs Act, 1969 for assessment and appropriately classified the goods under PCT Heading 8714.1020. It is pertinent to mention that in terms of section 79(1) of the Customs Act, 1969 the importer is required to file true and complete declaration of goods, giving therein complete and correct particulars of such goods, duly supported by commercial invoice, bill of lading, packing list or any other document required for clearance of such goods. The respondent could not fulfill his legal obligation for correct declaration of imported goods i.e. 'Adhesive Plastic Chittons/resins' and 'Motorcycle parts'. It is evident that the respondent has mis-declared/concealed the actual description, classification and value of the imported goods in order to get the assessment on suppressed value to evade legitimate Government revenue amounting to Rs.2832,993/-. In view of the above, the charges levelled in the Show Cause Notice stand established. I, therefore, order for confiscation of the offending goods under section 156(1) clause 14, read with section 32 (1) &(2) of the Customs Act, 1969. However, an option under Section 181 of the Customs Act, 1969 is given to the importer to redeem the confiscated goods on payment of 35% Redemption Fine Rs.1,143,034/- (Rupees One million one hundred forty three thousand and thirty four) of the value of offending goods (as determined by the department) in terms of S.R.O. 499(I)/2009 dated 13.06.2009 in addition to payment of duty and taxes chargeable thereon. I impose a penalty of Rs.100,000/- (Rupees one hundred thousand) on the importer for violation of above mentioned provisions of law."

4.Being aggrieved and dissatisfied with the above Order-in-Original, the appellant has filed instant appeal before this Tribunal on the grounds which are reproduced as under:--

(i)That the respondent No. 2 was not empowered to stop the delivery of the consignment, which has undergone the process of examination, passing of assessment order under section 80 of the Customs Act, 1969 and Rule 438 of sub-chapter III of Chapter XXI of the Customs Rules, 2001 and clearance order by the competent authority under section 83 and Rule 442 ibid. after out of charge of the goods in the system the respondent No. 2 became functus officio as held by the Hon'ble High Court of Sindh in reported judgment 2008 PTD 1968 M/s. 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-"

(ii)That on conclusion of transaction, under the provision of sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Customs Rules, 2001. The order so passed under the said provision of the Act become appealable under Section 193 of the Customs Act, 1969 before Collector of Customs (Appeals) and the Respondents Nos.1 and 2 are empowered to do so. If they had any reservation against the passed assessment orders dated 18.02.2015. The appropriate course of action was to assail the said orders before the Collector of Customs Appeals. Which had not been done within the stipulated period and order so passed by the competent authority defined in section 2(a) became final and that cannot be disturbed by any authority. To the contrary, the officials of Respondent No.2 detained, seized the goods which is not permitted under law.

(iii)That upon filing of the appeal by the Respondent No.1 or 2, before the Collector of Customs Appeals under section 193 of the Customs Act, 1969 emanating the facts of the case and the relevant provision of law. Upon receipt of appeal in his office, it is mandated on the Collector of Customs, Appeals to go through the fact and ground of the appeal and thereafter if he thinks fit that in the case under adjudication correct duty and taxes has not been either not levied or short paid on the basis of found goods, is empowered to issue a show cause notice under section 32 of the Customs Act, 1969 to the respondent in the appeal so filed after receipt of reply to the said notice the Collector of Customs will decide the appeal in the light of the issued show cause notice and reply. In the instant case no appeal has been filed by either respondent No. 1 or 2 despite mandated under law and respondent No. 3 issued show cause notice and passed order-in-original while reopening the assessment order passed by the competent authority while exercising the powers of the authority expressed in Section 195 of the Customs Act, 1969. Neither of the respondents are empowered to reopen the orders. Both acted without power/jurisdiction, hence their action is without any lawful authority and as such ab initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 M/s. Paramount International (Pvt.) Ltd. v. FOP and others.

(iv)That in the case under consideration in spite of lodging FIR no notice under sections 168(1) and 171 has been served on the appellant in spite mandated under law as no confiscation can be ordered in the absence of serving of mandated notices. Even otherwise it is a settled proposition of law that non serving the notice render the whole proceeding infested from legal infirmity and as such of no legal effect as held by Superior Judicial Fora in umpteenth reported judgment e.g. PTCL 1994 CL 22, 1983 PCr.LJ 620, 1983 PCr.LJ 623, 1983 CLC 786, PTCL 1983 CL 47, 1987 PCr.LJ 1413, PTCL 1987 CL 328, 2004 PCr.LJ 1958.

(v)The expression of section 179 of the Customs Act, 1969 is very clear in regards to determination of Adjudicating Authority on the basis of "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes". Which are Rs.597,103.00 paid upfront on 16.02.2015 + paid Rs.444,045.00 on 19.02.2015 in compliance of view message dated 18.02.2015 + the shown evaded amount of Rs.2,832,993.00 in the show cause notice). Meaning thereby that the involved amounts of duty and taxes is Rs.3,874,131.00 in appellant case and the competent authority to adjudicate the said case under clause (i) of section 179 (1) is Collector. To the contrary, respondent No. 3 issued the show cause notice and passed order-in-original while usurping the powers of the Superior, which is not permitted under law. Rendering both suffers from lack of powers/jurisdiction, hence, ab initio null and void and coram non judice as held in Order in Sales Tax Appeal No. 444/03, S.T.A. 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636.

(vi)That the respondent No. 3 in the show-cause notice has invoked subsection (2) of section 32 of the Customs Act, 1969, in the absence of any mis-declaration in material particular, or "deliberate act" of the appellant as evident from the 1st examination report, assessment order and the second examination report, 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 18.02.2015, stood validated from the fact that neither examining officials nor the assessing officer have been charged for any wrong doing as alleged. By virtue of the said fact, the respondents Nos. 1 and 2 confirmed in categorical terms that section 32(2) is not applicable. Therefore, the case of the appellant squarely falls within the ambit of inadvertence, error and mis-construction falling under the provision of section 32 (3) of the Customs Act, 1969. The power to adjudicate cases under the provision of Section 32(3) rest with the Principal Appraiser in terms of S.R.O. 371(I)/2002 dated 15.06.2002 (Exhibit "T") 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 void ab initio and coram non judice.

(vii)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 principle of interpretation of statute i.e. that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL (2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 and S.R.O. 371(I)/2002 dated 15.06.2002 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179 and notification S.R.O. 371(I)/2002 dated 15.06.2002. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case law on the point that where there is a conflict between two provision of the statutes, the later provision prevails and has to be given precedents (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee 1984 CLC 1517. Apart from this law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587 is referred. Their lordship observed as under:

"It is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void, ab initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation of power warranted by law (The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331) 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. M/s. United Grain and Fooder Agencies PLD 1964 H.C. 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".

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

(ix)That it is imperative for the appellant to invite the attention of the Honorable Appellant Tribunal that where order has been made without any powers/jurisdiction, irrespective of the merit of the case, such order are coram non-judice as held by High Court of Sindh in Customs Reference No. 101 and C.M.A. No. 1281 of 2009 reported as 2010 PTD 465 Collector of Customs, Model Customs Collectorate v. M/s. Kapron Overseas Supplies Co. (Pvt.) Ltd. filed on the question of law that whether passing of order without jurisdiction is a technical defect and does not render the proceeding as ab 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.

(a)That as regards, to the allegation of undeclared items said to be "adhesive plastic chitton/resins" to the extent of 2800 kgs is without any substance as the said item was reported by the examiner in the 1st examination report to the extent of 1868 kgs and the assessing officer assessed the same after using his wisdom and expertise. The said item was in the re-examination report was increased by 2032 kgs, whereas item No. 1 Glass Beeds which were found to the extent of 5300 kgs was decreased by 4300 kgs and shown as 1000 kgs. The appellant failed to digest that what criteria was adopted for determining the quantity in spite of the fact that these are beeds and it is immaterial whether it is of glass or plastic and falls under PCT heading 7018.1000 not under PCT 3926.4040. the assessment was made correctly and it cannot be changed mere on the basis of a changed opinion as held by Hon'ble Supreme Court of Pakistan in reported judgments judgment 1990 PTD 155 Edulji Dinshaw Ltd. v. Income Tax Officer, wherein their Lordship of the Supreme Court held that:

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

(x)That irrespective of the above facts, the determination of PCT heading is the sole prerogative of the customs officials as expressed in section 80(1) of the Customs Act, 1969 and Rule 438 of sub-Chapter III of Chapter XXI of the Customs Rules, 2001 verbatim of which is reproduced here-in-below:

"Section 80---Checking of goods declaration by the Customs---(1) On the receipt of goods declaration under section 79, an officer of customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration assessment, and in case of the customs computerized system payment of duty, taxes and other charges thereon.

Rule 438---Assessment by Customs Authorities.---Where any declaration has been filed under Rule 433 or additional documents have been submitted under rule 437 the Customs shall satisfied itself as to their correctness including its value, classification claim of exemption, payment of duty and taxes and may re-assess the goods during or after clearance

(xi)That even otherwise, the mis-declaration of PCT heading is without any substance as the assessing officer completed the assessment after going through the examination report and images and consulting the Pakistan Customs Tariff and utilizing his wisdom, his determination of PCT heading cannot be disputed upon by the respondents Nos. 2 and 3 as they are not vested with the power of determination of PCT heading unless classification is made by the Classification Committee, therefore no charge for misdeclaration of PCT heading can be invoked as held by the Superior Judicial Fora right from the case of Monno Industries Ltd. v. GOP corresponding to C.P. No. 199/1984 to M/s. 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. G.O.P. held that

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

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

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

The Hon'ble High Court of Sindh in the case of M/s. Sadaat Khan F.O.P. 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."

(xii)The respondents Nos. 2 and 3 have termed the imported nuts bolts of the appellant as motorcycle parts falling under PCT 8714.1020 which states "following components for vehicles of heading 87.11 and the components so listed below to the said heading are comprised of 48, in which nuts and bolts are not included by virtue of the fact that nuts bolts are not components as defined by the Board in clause (iii) of para. 1 of C.G.O. 12/ 2002 dated 15.06.2002 that "components means a complete machine part of a system not normally useful by itself and not amenable to further disassembly, nut bolt are a type of fastner characterized by a helical ridge known as a male thread (external thread) or just thread, wrapped around the cylinder. Some screw thread are designed to mate with complimentary thread, known as a female thread (internal thread) often in the form of nut or an object that has the internal thread form in to it. Other screw threads are designed to cut a helical grove in a softer material as the screw inserted. This confirms that the nut bolt are inter connected with each other and has to function as one. These has multiple uses, these least needs for access from or exposure to the opposite side of the component being fasten too as defined by Wikipedia. In the light of the definition the nut bolt imported by the appellant has been termed as component of motor cycle by stretching the word component in accordance to the meaning adopted by respondents Nos. 2 and 3 for penalizing the appellant despite no fault or default on his part. This is complete mala fide and abuse of power as evident from the act of stretching PCT heading 8714.1020, which is not permitted under law, the word of statue has to be read as it has been written. Nothing can be added or subtracted from that. This confirms that the appellant nuts bolts are not component and as such does not fall under PCT. 8714.1020 and render the contravention report, show cause notice and order-in-original without lawful authority and ab initio.

(xiii) That all type of nut bolt are classifiable under Sub-Chapter 18 of Chapter 73 of Pakistan Customs Tariff reading as "Screw, Bolt, Nuts, Coach Screws, Screw Hooks, Revits, Cotter, Cotter Pin, washer (Spring Washer) and similar articles of iron or steel. This mean that similar items as described in sub-heading are also included in this sub-chapter inspite not mentioning of the name of the similar articles. Since appellant imported nut bolts are not coach screw, screw hooks and screw ring, self taping screw these does not falls under PCT headings 7318.1100 to 7318.1300. Instead these are other nuts and bolts, for which sub-heading 7318.15 is carved in the Tariff under which nuts bolts of high tensile (DIN Grade 8.8, ASTM A325 or ASTM A193, B7) or (1) U Bolt for leaf Spring for vehicle of Chapter 87(2) Wheel Nuts for Vehicle of Chapter 87 or others, high tensile (DIN Grade 8.8, ASTM A325 or ASTM A193, B7) or (1) U Bolt for leaf Spring for vehicle of Chapter 87 (2) Wheel Nuts for Vehicle of Chapter 87 or others, these does not falls in either of the PCT listed from 7318.150 to 7318.1690. The appropriate PCT heading therefore is 7318.1900 under which declaration is made and assessment has been completed by the competent authority defined in Section 2(a) of the Customs Act, 1969 under section 80 and Rule 438 ibid.

(xiv)That although the issue of PCT of appellant imported nuts bolts stood clarified with the above submission, the appellant felt appropriate to add further to the Explanatory Note to HS 87.14 which clearly laid down that for classification in this heading, the part should fulfill following condition:

(i)They must be identifiable as being suitable for use solely and principly with the vehicle, and

(ii)They must not be excluded by the provision of notes to section 17.

(xv)The Explanatory Note 2 of Section XVII clearly exclude a number of parts and accessories whether or not they are identifiable at for the goods of this section. Sub-note (b) of Note 2 further explained that parts of general use of base metal are classified in Section XV example of item excluded by virtue of that note has been given at page XVII -3 whereby bolts and nuts have been specifically shown at para. A(2). Whereas, Explanatory Notes to HS 73.18 with clarity explained that " the heading includes all types of fastening bolt and metal screw regardless of shape and use." Confirming that the appellant imported nuts bolts remain classified under the declared HS Code 7318.1900, irrespective of their shape and use.

(xvi)That the respondents are at fault in classifying the goods of appellant under PCT other than declared i.e. 8714.1020, in addition to framing of contravention report and passing of order-in-original simply for the satisfaction of their whims and wishes, completely in derogation of the respective PCT headings and settled proposition of law that nothing can be added or subtracted to suits ones opinion as that amounts to redundancy, which has to be avoided. Even otherwise it is settled rule of interpretation that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment there is no equity about a tax. There is no presumption as to tax nothing is to be read in nothing is to be implied. One only look fairly at the language used nothing else to be done" as held by High Court and Supreme Court of Pakistan in their reported judgment starting from Abassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463 to M/s. Fazal Ellahi v. Additional Collector of Customs 2011 PTD (Trib.) 79. Even otherwise "if there are two or more interpretation of our provision pertaining to levy of tax on account of anomaly/ambiguity the one favourable to tax payer has to be adopted by the court" as per judgment reported as 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227. It is considered opinion of the Superior Judicial Fora in a number of judgments "that tax payer should not be made to suffer on account of bad drafting of the statute". Reliance is placed on the judgment of High Court of Sindh reported as 2004 PTD 901, wherein the Hon'ble Judges of the Bench held that

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

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

"if the legislature has not sufficiently expressed itself Court has no duty to act for it, for court is concerned with what it lays down and not what it has only in mind, but once it has been articulated enough Court does not more than 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.

(xvii) The order passed by the respondent No. 3 shows that it has not been passed with the application of mind and provision of the Act. Instead is a 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 the annexed exhibits has been given/controverted and passed the impugned order on personal absurd opinion contrary to law and that too also is 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 order in any system of law. If any Authority Court or Tribunal gave a finding of fact which was not based on material available on record 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 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.

The appellant counsel further argued that on the basis of above said grounds and facts, the instant appeal may kindly be accepted and the Order-in-Original No.368918 dated 25.05.2015 passed by the Respondent No.3 may kindly be set aside in the interest of justice.

5.The respondent department has submitted their parawise comments, which are reproduced as under:--

(i)That the contents of Para 1 are absolutely false, baseless, concocted and mala fide, hence vehemently denied. The fact is that the respondents are very much empowered to detain the goods and re-examine the actual and physical description of goods and other aspects of the imported goods. The case law reported in Para under reply has no relevancy with the present case.

(ii)That the contents of para. 2 are based upon the self interpretation, hence vehemently denied. The fact is that this is the case of mis-declaration on the part of the appellant and not the case of assessment/re-assessment as such no appealable order has been passed in the instant case and as such there is no need to file any appeal under Section 193 of the Customs Act, 1969 impression given by the appellant in Para under reply.

(iii)That the contents of Para 3 are also based upon self interpretation of law on the part of the appellant. Since there is no need for filing the appeal, rest of the contents are required no comments. The case law reported has no relevancy with the present case.

(iv)That the contents of Para 4 are absolutely false and baseless, hence vehemently denied. The fact is that all relevant and proper notices have been issued to the appellant. The case law reported in para under reply is not applicable in the instant case.

(v)That the contents of Para 5 are also not correct, hence denied. The fact is that adjudicating authority has correctly issued the show cause notice and passed the proper order-in-original well within his territorial jurisdiction. The case laws reported by the appellant in Para under reply clearly have no relevancy with the present case.

(vi)That the contents of Para 6 are also false and baseless, hence vehemently denied. The fact is that the misdeclaration on the part of the appellant has been proved without any shadow of doubt and as such the appellant has committed an offence under Section 32(1) (2) of the Customs Act, 1969 which offence on the part of the appellant is not deliberate but so also intentional and having full knowledge of the appellant. By taking these type of flimsy pleas, the appellant cannot escaped from his deliberate and intentional offence.

(vii)That the contents of Para 7 are based on self imagination and misinterpretation, hence required no comments. The case law reported are also have no concern with the present case and the same are liable to be ignored.

(viii) That the contents of Para 8 are also not relevant with the present case, hence required no comments.

(ix)That the contents of Para 9 are also not correct. The fact is that the order passed is very much within the powers having complete jurisdiction, passed after considering all aspects of the case including the merits of the case. The case laws reported by the appellant is just an attempt to impress this Honorable Tribunal otherwise the same have no relevancy with the present case.

(x)That regarding the contents of Para 10 it is submitted that the classification has been determination by the answering respondents in accordance with law and there is no violation of any provisions of Customs Act, 1969.

(xi)That the contents of Para 11 are also false and baseless, hence denied. The fact is that the answering respondents have complete powers and jurisdiction to determine the description classification, quantity and weight of the imported goods at any time prior to out of charge and in the instant case the mis-declaration on the part of the appellant has been found in respect of non declared goods and incorrect classification of the goods. The case law reported in Para under reply has no relevancy with the present case.

(xii)That regarding the contents of Para 12 it is specifically mentioned here that the appellant has categorically failed to produce any cogent proof or manufacturer's catalogue/broacher to prove that the goods are nuts and bolts of general use and not parts specially meant for motorcycles classifiable under PCT heading 87.14 instead of 73.18 and as such the valuation ruling has correctly been applied in terms of section 25-A of the Customs Act, 1969.

(xiii) That the contents of Para 13 are based on self explanatory. The fact is that the classification applied in the instant case is absolutely in accordance with the description of goods found relevant to the description provided under PCT Heading 87.14 which fully and in detail described the description of the goods.

(xiv)That the regarding the contents of Para 14 it is submitted that the PCT applied in the case of the goods of the appellant is proper and in accordance with the relevant provisions of explanatory notes after considering all aspects of the case and conditions of the goods.

(xv)That the contents of Para 15 are repetition of previous Paras for which a comprehensive reply has been give and as such need no further comments in this regard.

(xvi)That regarding the contents of Para 16 it is specifically mentioned here that the goods of the appellant does not falls under PCT heading 73.18 and correctly been classified under PCT 8714.1020 and since the mis-declaration has been proved on the part of the appellant without any shadow of doubt, the contravention report has been sent to the learned Respondent No. 3 for issuance of show cause notice and for decision. The case laws reported have no relevancy with the present case.

(xvii) That the contents of Para 17 are absolutely false, baseless, concocted and mala fide, hence vehemently denied. The fact is that the order passed by the Respondent No. 3 is very much speaking order and is well within the jurisdiction which order has been passed after considering all aspects of the case, arguments of the appellant. The appellant has immensely failed to produce any cogent documentary evidence in support of his contentions and as such the said order is very much legal, lawful and maintainable.

The departmental representative further submitted that the Order passed by the Additional Collector Adjudication-I is legal and within the ambit of prevailing law, which is required to be upheld.

6.Rival parties heard and case record perused.

7.Upon passing of assessment order under section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 and thereafter passing of clearance order under section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Customs Act, 1969 in exercise of the powers vested upon him through S.R.O. 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. 2 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Customs Act, 1969. In the filed appeal he 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. 2 seems to be correct and the duty and taxes has not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show cause notice to the respondent (importer) as expressed in 2nd proviso to the subsection (3) of section 193A of the Customs Act, 1969. Instead of the prescribed method in the Act the respondent No.1 reopened the assessment/clearance order under section 195 of the Customs Act, 1969. Even otherwise, when the right of appeal has been accorded by the legislature in the provision of section 193 of the Customs Act, 1969, the provision of section 195 is un-operational and cannot be exercise 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 M/s. 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." Therefore, the act and commission of respondent No. 2 is in derogation of sections 193 and 195 of the Customs Act, 1969 and as such of no legal effect, hence coram non judice.

8.The section 179 of the Customs Act, 1969 expressed that the power 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. 3,878,131.00 (Rs. 597,103.00 paid upfront on 16.02.2015 + Rs. 111,045.00 paid as additional duty and taxes upon receipt of view message from authority defined in section 2(a) ibid + Rs. 2,832,993.00 shown in show cause notice as evaded amount of duty and taxes), the case of the said amount falls within the powers of Collector of Customs . To the contrary, the respondent No. 3 issued show cause notice and passed order in original while usurping the powers of his superiors, which is not permitted under law. Nobody is allowed to usurp the powers of defined authority in statute. Rendering the act of issuance of show cause notice and passing of order-in-original in the instant case without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517, PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, PLJ 2003 (sic) 1660, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court (sic), PLD 2005 Supreme Court 842, 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636, 2011 PTD (Trib.) 2114, 2011 PTD (Trib.) 2557 and 2014 Supreme Court 514 (sic).

9.I have analyzed the allegation leveled in the show-cause notice in the light of 2nd conducted examination report by the respondent No.2, which he termed valid and the examination conducted earlier, on the basis of which assessment/clearance orders under the provision of sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 were passed by the authority as defined in section 2(a) ibid., in exercise of the power vested upon him through Notification No. 371(I)/2002 dated 15.06.2002 were ignored and 2800 kgs of "Adhesive Plastic Chitton /Resin" was termed as to be found in excess in spite not because it has already been reported to the extent of 1868 kgs by the examiner in the 1st examination report and the authority passing the order assessed that after going through the declaration, scanned documents, examination report and images and after using his wisdoms and expertise. Interestingly, the said item was increased by 2032 kgs in the 2nd examination report and Glass Beads were decreased by 4300 kgs and shown as 1000 kgs as against found 5300 kgs in the 1st examination report. I am at loss to digest the rationale adopted by respondent No. 2 and his subordinates during the course of conduction of 2nd examination report for determining the quantity differently to the 1st examination report nothing is available in record validating the plea of the respondent. Similarly, respondent No. 2, substituted the found glass beads and chittons, in the 1st examination report with the glass and plastic beads. It is immaterial that the found beads are of glass or plastic because both falls under PCT heading 7018.1000 not 3926.4040. It is my firm opinion that the respondents Nos. 2 and 3 were not available with valid grounds and substance, in rejecting the infield valid examination report and the assessment/clearance order, simply on the basis of their own fabricated opinion/whims having no nexus with reality and the provision of the Act/Rules. The said assessment can not be replaced through a fresh assessment or an adjudication order by the respondents Nos. 2 and 3, when the facts are same and no suppression or concealment have been made in regards to, description, quality and quantity, stood vindicated even 2nd examination report, showing no change in these in material particular . Therefore, the assessment made earlier has to remain in field, unless not reversed by the appropriate authority defined in section 193 of the Customs Act, 1969 or the authority superior to him. The infield assessment order has not been challenged before the Collector of Customs Appeals within the stipulated period of 30 days. Hence, it attains finality and cannot be disturbed being past and closed transaction through limitation, reference is placed to the reported judgment 1989 MLD 4310 M/s. World Trade Corporation v. Central Board of Revenue, wherein it has been held 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". In M/s. Smith Kline French v. Pakistan reported as 2004 PTD 3020 the Hon'ble High Court of Sindh 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"

10.The respondents Nos. 2 and 3 have termed the nuts bolts found and assessed in the 1st examination report and assessment/clearance order as motorcycle parts in the 2nd examination report, no rationale or reasoning has been given by the respondent No. 2 or his subordinate for terming the nuts and bolts as motorcycle parts and likewise respondent No. 3 also failed to adduce any reasoning in the order that how nuts bolts are held by him to be specifically meant for motorcycle, in the absence of expert opinion of the dealer of motorcycle assembler or dealer of its parts. The respondents are of the opinion that since, appellant has not produced any manufacturer's/catalogue/broacher, presumption is that the nuts bolts imported by the appellant are deems to be construed as motorcycle parts. Here respondents loss sight of the proposition that a person leveling the allegation has to prove that, no onus lies on the appellant to prove that his imported nuts and bolts are not motorcycle parts. It is for the respondents to prove that the imported nuts bolts are infact not nuts bolts, instead motorcycle irrespective of their shape of nuts and bolts. The opinion and finding of the respondent are without any substance due to the fact that motorcycle parts and accessories fall within the ambit of heading 8714.1020, under which certain components of the motorcycle are listed and those are 48 in numbers, in anyone of the number nuts or bolts are not included and this is due to the fact that nuts and bolts are not component as defined by the Board in clause (iii) of para 1 of CGO 12/2002 dated 15.06.2002 "components means a complete machine part of a system not normally useful by itself and not amenable to further disassembly". Whereas, nuts and bolts are a type of fastner characterized by a helical ridge known as a male thread (external thread) or just thread, wrapped around the cylinder. Some screw thread are designed to mate with complimentary thread, known as a female thread (internal thread) often in the form of nut or an object that has the internal thread form in to it. Other screw threads are designed to cut a helical grove in a softer material as the screw inserted. This confirms that the nut bolt are inter connected with each other and has to function as one. These has multiple uses, these least needs for access from or exposure to the opposite side of the component being fasten too as defined by Wikipedia. In the light of the definition the nut bolt imported by the appellant has been termed as component of motor cycle by stretching the word component in accordance to the meaning adopted by respondents Nos. 2 and 3 for penalizing the appellant despite no fault or default on his part. The respondents are also stretching PCT heading 8714.1020, in accordance with their desires and wishes for achieving their object. This is not permitted under law, the word of statue has to be read as it has been written. Nothing can be added or subtracted from that. This confirms that the appellant nuts bolts are not component and as such does not fall under PCT. 8714.1020 instead nuts and bolts falls under Sub-Chapter 18 of Chapter 73 and which are "Screw, Bolt, Nuts, Coach Screws, Screw Hooks, Revits, Cotter, Cotter Pin, washer (Spring Washer) and similar articles of iron or steel. This mean that similar items as described in sub-heading are also included in this sub-chapter in spite not mentioning of the name of the similar articles". Infact, nut and bolts rightly falls under PCT 73.18 of the main heading reading as "others" and this stood validated from the explanation to the Chapter Note given by the World Customs Organization that "the heading includes all type of fastening bolts and metal screw regardless of shape and use" . In consonance with the said explanation the Clearance Collectorate are classifying nuts and bolts if even imported by the assemblers of motorcycle or dealers under PCT 7318.1690 regularly, further validated from the images, examination report and assessment orders supplied by the appellant of the consignment and which are as follows:-

S.#Importer NameDescription GD#/Date PCT

01Friends Assorted Bolts etcKCSI-HC-134056-030420137318.1690

02Chawala Ent.Assorted Bolts etcKAPW-HC-93530-241120157318.1690

03Aman Ent.Automotive Bolts KAPW-HC-81975-091120157318.1690

04Aman Ent.Automotive Bolts KAPW-HC-73805-271020157318.1690

05S.S.Trading CoBolts, Nuts & ClipsKAPE-HC-64825-131120157318.1690

05Khaula Traders Bolts, Nuts & ClipsKAPW-HC-98470-011220157318.1690

05Crown Corp.,Assorted ScrewKAPE-HC-86839-281220157318.1690

The respondent needlessly has created an issue on one hand, while ignoring the specific PCT under which the imported nuts and bolts falls and on the other hand has dealt the appellant differently in spite standing on the same pedestal. The said act of the respondent amounts to giving a partial and differential treatment. A person placed at the same pedestal cannot be treated differently as it would constitute negation of Articles 4 and 25 of Constitution of Islamic Republic of Pakistan. The Honourable High Court of Sindh in its reported judgment 2002 PTD 976 held that "vacating the show cause notice in one case and taking action against another person in similar situation, is amount to discrimination which is hit by Article 25". In reported judgment 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 2005 SCMR 492 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 favouring 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."

11.To what has been stated/discussed herein above, and in the light of observation and prescribed law, I hold that detaining of subject consignment for conduction of re-examination and for preparation of contravention report by the respondent No. 2 is without lawful authority and jurisdiction and so the issuance of show cause notice and passing of order-in-original by the respondent No. 3, which are declared to be illegal, null and void and hereby vacated/set-aside. The appeal is allowed accordingly as prayed.

12. Order passed and announced accordingly.

BHT/97/Tax(Trib.) Appeal allowed.