GMSA INDUSTRIES (PVT.) LTD., FAISALABAD VS DEPUTY COLLECTOR OF CUSTOMS (R&D), 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2013 (2017)

Customs Act (IV of 1969)---

----Ss. 26-A, 32, 79, 80 & 83---SRO No.371(I)/2002, dated 15-6-2002---Mis-declaration---Reassessment---Goods declaration was filed and deposited up front duty and taxes against each goods declaration---Physical verification, revealed that goods were found the same as declared---Inbuilt authority passed clearance orders and clearing agent of the importer, thereafter obtained the deliveries of the consignments from terminal---Later on, competitor of appellant forwarded complaint in regard to under assessment and on the strength of which Deputy Collector of Customs (R&D) opened file and forwarded his opinion to the superior authorities, who ordered reassessment of all the goods declaration---Deputy Collector of Customs (R&D) directed the Deputy Collector of Customs, (Group-II) to reassess as ordered---In compliance to that, Deputy Collector of Customs (Group-II) passed reassessment order---Being aggrieved from said reassessment order, importer filed appeal before Collector of Customs (Appeals), who declared all the reassessment orders passed by Deputy Collector of Customs (Group-II) beyond jurisdiction observing that he was not within his right to create recovery through view message in absence of compliance of the mandated requirement of issuance of show-cause notice---Deputy Collector of Customs (R&D), thereafter framed contravention report against the goods declaration with the allegation that importer obtained the clearance of goods on lower value, which was instrumental in causing loss to the Exchequer---Validity---Proper course of action available with Deputy Collector of Customs (R&D) was to file appeals against the order of Collector of Customs (Appeals) before the Customs Appellate Tribunal, but same was not done and the orders of the Collector of Customs (appeal) attained finality---Deputy Collector of Customs (R&D) after lapse of the stipulated period, woke up and in order to cover up his negligence/carelessness and after lapse of the period of 60 days, flogged the dead horse by preparing contravention report, based on the same facts and grounds on which reassessment orders were passed; which were declared without lawful authority/jurisdiction and arbitrary by Deputy Collector of Customs (R&D)---In presence of order of Collector of Customs (appeal) no occasion was available with Deputy Collector of Customs (R&D) to frame contravention report and Collector of Customs Adjudication to issue show-cause notice and pass order-in-original---Only one order at a time had to remain in the field, no second order was permitted to file upon the existing order which had attained finality---In terms of Rule of Business, officer of same grade, was not empowered to pass an adverse order in the presence of order of officer of same grade; wherein relief had been granted to a person after allowing the appeal after setting aside the order passed by subordinate authority---Collector of Customs (Appeal) and Collector of Customs Adjudication were of the same grade Collector of the Customs Adjudication was not empowered for nullifying the order passed by Collector of Customs (Appeals), which had attained finality---Despite issuance of order by Collector of Customs Adjudication the order passed by the Collector of Customs (Appeals), would remain intact being valid and lawful and the order passed by Collector of Customs Adjudication would bear no consequences---Preparation report of Deputy Collector of Customs (R&D) and issuance of show-cause notice and passing of order-in-original by Deputy Collector of Customs (Group II)), were ab initio illegal and void and of no legal effect which were set aside.

Messrs Smith Kline French v. Pakistan 2004 PTD 3020; Messrs World Trade Corporation v. Central Board of Revenue 1989 MLD 4310; Messrs Paramount International (Pvt.) Ltd. v. FOP and another 2014 PTD 1256; Major Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184; Omer and Company v. Controller of Customs, (Valuation) 1992 ALD 449 (1); Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax 2004 PTD 624; Ali Muhammad v. Hussain Buksh and others PLD 1976 SC 514; Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others PLD 2001 SC 514; Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi 2006 PTD 2237; 2009 PTD (Trib.) 1996; 2010 PTD (Trib.) 832; All Pakistan Newspaper Society v. F.O.P. PLD 2004 SC 600; Khyber Tractors (Pvt.) Ltd. v. FOP PLD 2005 SC 842; Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala 2008 PTD 60; Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala 2008 PTD 578; Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others 2009 PTD 762; Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others 2009 PTD (Trib.) 1263; Leo Enterprises v. President of Pakistan and others 2009 PTD 1978; Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal) 2010 PTD (Trib.) 1010; Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS 2011 PTD (Trib.) 79; Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS 2011 PTD (Trib) 987; Kaka Traders v. Additional Collector of Post Clearance Audit 2011 PTD (Trib.)1146 and Pak Electron Ltd. v. Collector of Customs, Lahore and others 2012 PTD (Trib.) 1650 ref.

Nadeem Ahmed Mirza for Appellant.

Syed Azam Shah (Appraiser) for Respondents Nos. 1, 2 and 4.

Date of hearing: 15th February, 2017.

ORDER

TAHIR ZIA, MEMBER (JUDICIAL-II).---Through this order, we intend to dispose off appeal No. K-1005/2016 directed against the Order-in-Original No. 163/2015-2016 dated 07.04.2016 passed by Collector of Customs, Adjudication-II ( here-in-after to be referred as respondent No. 4).

2.Brief, facts of the case are that the appellant is a manufacturer of silicon and for packing of that he imported plastic bottles with accessories from different countries between the period of 05.08.2013 to 05.07.2014 through 10 consignments against which his clearing agent Messrs Dewan Associates, Karachi filed Goods Declaration Nos. KAPE-HC-9167 dated 05.08.2013, KAPEHC-29900 dated 09.10.2013 KAPE-HC-45366 dated 27.11.2013, KAPE-HC-4882 dated 07.12.2013, KAPE-HC-60910 dated 13.01.2014, KAPE-HC-75325-22.02.2014, KAPE-HC-80404 dated 12.03.2014, KAPE-HC-85453 dated 26.03.2014, KAPE-HC-97507 dated 02.05.2014 and KAPE-HC-1399-05.07.2014 with the MCC of Appraisement -East under the provision of Section 79(1) of the Customs Act, 1969 (here-in-after to be referred as Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 (here-in-after to be referred as Rules) and as per pre-requisite deposited upfront duty and taxes against each Goods Declaration (here-in-after to be referred as GD's). The entire consignments were selected for examination in terms of Section 198 and Rule 435 of the Act /Rules, through physical verification by the Official of MCC of Appraisement-East posted at PICT, goods were found as declared in all aspect, the examination report so prepared were posted in the reservoir of the GD. Upon appearance of those the competent authorities in the capacity of adjudicating authority as defined in Section 2(a) in exercise of the power vested upon them through SRO 371(I)/2002 dated 15.06.2002 either directly or upon receipt of review of the appellant under Rule 441 against the assessment order made by either Appraiser or Principal Appraiser passed the assessment orders under the provision of Section 80 and Rule 438 of the Act/Rules either on declared value or the value of identical/similar goods available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of Chapter IX of the Rules and transmitted view messages for payment of additional duty and taxes worked out on the basis of assessment orders. The appellant paid those, consequent to which the inbuilt authority passed clearance orders as per the expression of Section 83 and Rule 442 of the Act/Rules. The appellant clearing agent thereafter obtained the deliveries of the consignments from the terminal and transported those to the appellant. That in the month of January 2015 as stated in the assessment notes dated 21.02.2015, the competitor of the appellant forwarded complaint in regards to under assessment. On the strength of which the respondent No. 1 opened file bearing No. MCC /MISC/423/2014-R&D, in which after adducing his opinion, forwarded to the superior authorities, who ordered reassessment of all the GD's @ US$. 3/kg consequent to which the respondent No. 1 directed the Deputy Collector of Customs, Group-II (here-in-after to be reffered as respondent No. 2) to reassess as ordered in compliance to that the respondent No. 2 passed reassessment orders in all the 10 GD's on 21.02.2015 with the remarks "recovery created as per file No. MCC/Misc/423/2014 R&D" and forwarded view messages to the appellant for payment of additional amount of duty and taxes reading as "B/L No. .. has been sent to cashier for payment you are requested to pay Rs. for clearance". Being aggrieved from the reassessment orders the appellant preferred appeals before the Collector of Customs Appeals (here-in-after to be referred as respondent No. 3) who declared all the reassessment orders passed by respondent No. 2 beyond jurisdiction and arbitrary through order dated 08.05.2015 while observing that the respondent No. 2 was not within his right to create recovery through view messages in the absence of compliance of the mandated requirement of issuance of show-cause notice under the provision of Section 32(3) of the Act. Thereafter, the respondent No. 1 framed contravention report dated 16.07.2015 against the subject GD's with the allegation that the appellant obtained the clearance of goods on lower value of US$. 1.02 to US$. 1.50/kg as against the value of US$ 3/kg, which is instrumental in causing loss to the exchequer to the extent of Rs. 16,650,739.00 and the said act of the appellant falls within the ambit of the provision of Sections 32(1), (2), 32 (3A) of the Act, Sections 3(1), Sections 3,6 and 7 read with section 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 punishable under clauses 14, 14A and 45 of Section 156 (1) of the Act, clause 11(c) of Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001, incorporating therein prominently "The above mentioned GD's and data has been scrutinized which transpired that the aforesaid goods were required to be assessed as US$. 3/kg. Accordingly the matter was analyzed and case was referred to R&D section the assessment was reviewed in the system and as well short recovery for the differential amount of duty and taxes generated/ created. However, as per Order-in-Appeal No. 10106 to 10115/2015 dated 08.05.2015, the worthy Collector (Appeals), Karachi decided that re-assessment in respect of the aforesaid GD's through re-view message is not lawful and this act was set aside", this contravention was forwarded to Collector, MCC of Appraisement-East, who onward forwarded that to respondent No. 4, on the strength of which he issued show-cause notice dated 13.10.2015 incorporating all the facts and the provision of the Act, Sales Tax Act and Income Tax Ordinance, 2001 narrated in the contravention report prepared by respondent No. 1 without even change of comma or full stop. The appellant consultant through reply dated 29.10.2015 challenged the authority of respondents Nos. 1 and 4 of preparation of contravention report and issuance of show-cause notice in the presence of order of the respondent No. 3 and in the absence of enabling provision of the Act empowering the respondents Nos. 1 and 4 to frame contravention report and to issue show-cause notice on a matter, which has already decided in his favour by respondent No. 3 and which had attain finality by virtue of non availing remedy under the provision of Section 194A (1) of the Act filing of appeal, in addition to other argument through which he challenged the jurisdiction of respondent No. 1 of conducting audit under the provision of Section 26A of the Act and of respondent No. 4 under the provision of Sales Tax Act, 1990 and Income Tax Ordinance, 2001. The respondent No. 4 brushed aside the averment/argument of the appellant and passed order dated 07.04.2016 through which he held the charges as established against the appellant and ordered payment of Rs. 16,350,739.00, imposed penalty of Rs. 3,000,000.00 and Rs. 500,000.00, on the clearing agent while observing that in paras 10 and 11 which read as follows:--

"10. The argument of the respondent has been examined. There is no doubt re-assessment order made by the officials of Model Customs Collectorate of Appraisement-East, Karachi was set aside by the Collector of Customs (Appeals), Karachi in respect of the impugned goods imported by the respondent but the worthy Collector of Customs (Appeals), Karachi has set aside the order with the observation that in order to revisit the assessment a proper show-cause notice under section 180 of the Customs Act, 1969 was required to be issued and without issuance of show-cause notice changing the value of the goods was arbitrary. The Collector of Customs (Appeals), Karachi never stated that setting aside the assessment order meant that no show-cause notice can be issued in respect of the subject goods. It was in pursuance of the Collector (Appeal) observation that contravention report was prepared and a proper show-cause notice under Section 180 of the Customs Act, 1969 was issued. Therefore, Order-in-Appeals Nos. 10106 to 10115/2015 dated 08.05.2015 does not deprive the department from the legal right to frame contravention report for violation of Sections 32(2) and 32(3A) of the Customs Act, 1969 both the Sections 32(2) and 32(3A) deals with the period to serve the show-cause notice which is five(05) years in both these Section. The show-cause notice in this case was issued on 13.10.2015 and the goods were imported between 05.08.2013 to 05.07.2014, therefore, issuance of show-cause notice is well within the period of 05 years.

11. In the light of above, it is concluded that issuance of show-cause notice is not only legal but within the prescribed time and the respondents arguments on this account are not maintainable. As the respondent has not argued on the valuation aspect, therefore, the department valuation is not contradicted".

3.The appellant filed the appeal on the basis of grounds enumerated therein. No cross-objection under subsection (4) of Section 194A has been filed within the stipulated period of 30 days by the respondent No. 1 himself or through his subordinate, instead comments were filed, which are placed on record of the case for consideration and perusal.

4.Heard and perused case record. This appeal could be allowed on the short point that as to whether the respondent No. 1 and respondent No. 4 were empowered to frame contravention report and issue/pass show-cause notice and the impugned order-in-original in the presence of Order-in-Appeal dated 08.05.2015 passed by respondent No. 3 through which he declared the passing of re-assessment orders and view messages dated 21.02.2015 for creating recovery as without lawful authority/ jurisdiction and arbitrary. For challenging the vires of the order of the respondent No. 3, mechanism defined in Section 194A (1) is available in the Act, which read as follows:--

194A - Appeal to the Appellate Tribunal:- (1) Any person or an Officer of Customs agreed by any of the following order may appeal to the Appellate Tribunal against such order:-

(a) A decision or order passed by an officer of Customs not below the rank of Additional Collector under Section 179.

(ab) An order passed by Collector (Appeals) under section 193;

(c) . ..

(d) .. .. ..

(e) . .

(3)Every appeal under this section shall be filed within 60 days from the date of which the decision or order sought to be appeal against is communicated to the Board or the Collector of Customs or as the case may be, the other party preferring the appeal.

The proper course of action available with the respondent No. 1 was to file appeals against the order of respondent No. 3 before the Customs Appellate Tribunal in terms of clause (ab) of Section 194A (1) of the Act within 60 days as expressed in subsection (3) ibid i.e. on or before 08.07.2015, ironically appeals were not filed and the Orders of the respondent No. 3 attained finality. However, after lapse of the stipulated period, respondent No. 1 woke up from his slumber and in order to cover up his negligence/carelessness and above all lapse of the period of 60 days flogged the dead horse in order to give new lease of life by preparing contravention report dated 16.07.2015 based on the same fact and grounds on which reassessment orders dated 21.02.2015 were passed under the provision of Section 80(3) of the Act and view messages and even date were transmitted to the appellant for creating recovery, which were declared without lawful authority/jurisdiction and arbitrary by respondent No. 3. In the presence of Order of respondent No. 3 no occasion was available with respondent No. 1 to frame contravention report and respondent No. 4 to issue show-cause notice and pass order in original, their acts are tantamount to flouting the provision of Sections 180, 193 and 194A(1) of the Act and the law laid down by the superior judicial fora that at a time only one order has to remain in the field, no second order is permitted to pile upon the existing order which attains finality. This was held by the learned High Court to be in derogation of the principles of administration of justice" in the case of Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 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.

5.That as regard to the observation adduced by respondent No. 4 in para 10 of the order that it was intention of respondent No. 3 at the time of passing order dated 08.05.2015 that in consequence of his order, respondent No. 1 should prepare contravention report and respondent No. 4 issue show-cause notice and the passed order-in-original is based on mis-conception and mutilation of the order of the respondent No. 3, which in this context does not contain his intentions, rather it was complete/exhaustive and in consonance with the provision of the Act/principal of law and Article 13 enshrined in the Constitution of Pakistan, for validation operative paras 3 to 6 are reproduced here-in-under:--

"3. I have examined the fact of the case and have gone through the record beside considering and verbal and written arguments of the both parties. After completion of assessment and goods being out of customs charge, the matter had become past and closed transaction. The respondent officials had no authority to re-open the case with the view to re-visit the assessment. In case the official had find out that the appellant had committed an offence of mis-declaration or some duty had escaped due to inadvertence or error, a proper notice under section 180 of the Act ought to have been issued. Without the issuance of such notice, changing the value of the goods was arbitrary, this principle has already been laid down in the case of Messrs Sikandar Enterprises v. Customs, Excise and Sales Tax Tribunal, Karachi vide Spl. Customs Appeal No. 148/2011."

"4. The responding official had the option to exercise their rights of appeals under section 193 of the Customs Act, 1969 held by Hon'ble Sindh High Court in the case of M/s. Paramount International (Pvt.) Ltd., (2014 PTD 1256). The respondents choose not to exercise this right and arbitrarily changed the assessment which already stood finalized. If after release of the goods it is found that some duty or tax has escaped assessment due to any reason, appropriate action can be taken under the relevant subsection of Section 32 of the Act.

"5. In a recent judgment in Customs Appeals Nos. K-729-735/2014, the Appellate Tribunal while accepting the appeal against recovery rated through "view message" after clearance of the goods ruled that ----------"therefore, the reassessment made by the respondent No. 1 of the Goods Declaration of the appellant after clearance, amount to conduction of audit under section 26A of the Customs Act, 1969 to which he is not empowered, rendering his act without power/jurisdiction as such void and ab-initio and coram non judice ..The only course left for the respondent No. 1 was to challenge the said order Before Collector of Customs, Appeal under section 193 of the Customs Act, 1969 instead of the prescribed method the respondent No. 1 re-open the assessment/clearance under section 195 of the Customs Act, 1969 under which powers are either vested with the Board or Collector of Customs ..therefore the act and commission of the respondent No. 1 is also in derogation of sections 193 and 195 of the Customs Act, 1969 and as such of no legal effect .such type of recovery can only be created upon passing of an order after issuance of show-cause notice under section 32(3) of the Customs Act, 1969 ..while creating recovery through view message the respondent No. 1 infact committed violation of provision of section 32(3) of the Customs Act, 1969 and principle of natural justice rendering the recovery so created without any lawful authority and as such void and ab-initio.

"6-In view of the foregoing discussion, I am led to conclude that respondent officials action to open the case and to make fresh assessment was beyond jurisdiction and arbitrary. Accordingly the re-assessment in respect of the following Goods Declaration through view message is set aside."

It is also of paramount importance to subscribe that in terms of Rule of business that Officer of same grade is not empowered to pass an adverse order in the presence of order of Officer of same grade, wherein relief has been granted to a person after allowing the appeal after setting aside the order passed by subordinate authority. The respondents Nos. 3 and 4 are of the same grade i.e. 20, respondent No. 4 is not empowered under the provision of the Act for nullifying the order passed by respondent No. 3, despite issuance of order by respondent No. 4 the order passed by the respondent No. 3 remains intact being valid and lawful and the order passed by respondent No. 4 bear no consequences what so ever under the provision of the Act. The authority to over see the illegality/propriety of the order of the respondent No.3 only rest with the Board in terms of Section 195 of the Act, which can reopen an order passed by respondent No. 3 and that also prior to expiry of period of 60 days available in Section 194A(1) of the Act. Once the time stood lapsed that order could not be reopened by the Board by virtue of a fortiori; as held in reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which so sou motu revision lay under the Act". Even otherwise, when the right of appeal is available to the Officer of Customs under Sections 193 and 194A(1) of the Act, Section 195 is unoperational and cannot be exercised under any circumstances as held in 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and another: "1st order in original passed in the subject matter was an appealable order for both the parties therefore option to reopen an order passed under the adjudicating hierarchy was not available to the Collector,---Even the Collector of Customs Adjudication could not over see or exercise any right of reopening of an order, which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set aside." In consonance with the aforesaid principal of law, we hold that preparation of contravention report by respondent No. 1 and issuance/passing of show-cause notice and order-in-original by the respondent No. 4 are an act of re-opening of the order of respondent No. 3 under the provision of Section 195 of the Act, under which they are non entity, rendering their acts in derogation of the provision of Sections 180, 193, 194A(1) and 195 of the Act and the law laid down by the Superior Judicial Fora, hence, ab-initio, null and void and as such coram non judice.

6.Notwithstanding, to the observation made here-in-above the reference made in the contravention report/show-cause notice and order-in-original to Section 32(3A) of the Act is out of proportion as invoking of the said section also render the entire proceeding right from preparation of contravention report to passing of order-in-original without lawful authority and jurisdiction. The Section 26A and Section 32(3A) of the Act has been inserted in the Act after creating of Directorate General of Post Clearance Audit through insertion of Section 3DD in the Act and official of which were delegated power under the different section of the Act including 26A and 32 (3A) through S.R.O. 500(I)/2009 dated 13.06.2009 and Official of the Directorate of Post Clearance Audit are empowered to conduct audit of the GD's of the importer Post Clearance and upon finding any discrepancy or misdeclaration are empowered to issue audit observation to the importer for justification. In case the importer failed to justify the pointed out discrepancy/misdeclaration, the Director of Post Clearance Audit is empowered to frame contravention report under the provision of Section 32(3A) of the Act and forward that to the respective Collector of Customs, Adjudication for commencing adjudication proceedings. In the instant case of the appellant the respondent No. 1 conducted the audit under Section 26A and prepared contravention report under the provision of Section 32(3A) while usurping the powers of the Officer of Directorate General of Post Clearance Audit, which is not permitted under law any such act if committed has to be discouraged in the beginning because if allowed, it will create anarchy and compromise the independence of the different organs of the Revenue Division, empowered to act and operate within the specific sphere without any interference. We are therefore of the irresistible considered opinion that the respondent No. 1 acted without power/jurisdiction, rendering the conduction of audit, preparation of contravention report and connected proceeding thereof undertaken by the respondent No. 4 are of ab-initio, void and as such of no legal effect. Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832, PLD 2004 Supreme Court 600 All Pakistan Newspaper Society v. F.O.P., PLD 2005 Supreme Court 842 Khyber Tractors (Pvt.) Ltd. v. FOP.

7.The show-cause notice in the instant case was issued on 13.10.2015 by the respondent No. 3 and an order under the proviso of subsection (3) of Section 179 of the Customs Act, 1969 should had been passed by him within 120 days i.e. on or before 10.02.2016 from the date of show-cause notice or within a further extended period of 60 days by the FBR prior to lapse of initial period of 120 days after serving a notice to the person concerned as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment 1993 SCMR 1881 Khalid Mahmood v. Collector of Customs and thereafter recording reasons for the extension based on "exceptional circumstances". To the contrary, the respondent No. 4 extended the period himself inspite no powers under subsection (4) of Section 179 of the Customs Act, 1969. He is only empowered to extend the period for passing order under subsection (3) of the cases, which are under adjudication of his subordinates referred in clauses (ii) to (vi) of section 179(1) ibid. in case of adjudication by him, the time for passing order can only be extended by the Board in terms of subsection (4) ibid and none else including respondent No. 3. Resultant, extension given by him on 07.04.2016 is without lawful authority/jurisdiction. In principle and as per the expression of subsection (4) of Section 179 ibid, no extension was either obtained or granted by the Board prior to expiry of initial period of 120 days i.e. 26.03.2015. Rendering the order-in-original dated 07.04.2016 barred by time by 56 days, hence without power/jurisdiction and not enforceable as held in reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax,. Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and 2009 PTD 1978 Leo Enterprises v. President of Pakistan and others 2010 PTD (Trib.) 1010 Innovative Impex v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others.

8.We have also observed that the respondent No. 4 in para 11 of the order observed that since the appellant has not contradicted the aspect of department valuation, which means that the appellant agrees to that. The said observation is based on misconception and in negation of the provision of Section 32 and rules and regulation framed there under. Prior to omission of clause (d) of Section 25(5) of the Act through Finance Act, 2014, it was mandated upon the officer of customs inclusive of respondents Nos. 1 and 2 and their subordinate to apply the lowest value for levy of duty and taxes while passing assessment order under Section 80 and Rule 438 of the Act/Rules. Verbatim of clause (d) of Section 25(5) as was then was:--

(d) If, in applying the provision of this subsection there are two or more transaction values of the identical goods that meet all the requirement of this subsection and clauses (b), (d) (e) & (f) of sub section (13) the customs value of the imported goods shall be the lowest such transaction value, adjusted as necessary in accordance with clauses (b) and (c).

It seems that the respondent No. 2 and his subordinate applied the lowest value available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of Rules between the period of 05.08.2013 to 05.07.2014 were between US$. 1.02 to 1.50/kg with the application of which GD's of appellant were assessed and assessment order were passed which were in accordance with the law and no illegality can be inferred on the part of either respondent No. 2 or his subordinates. Even otherwise, passing of assessment orders is independent job of the Officer of Customs under Section 80 and Rule 438 of the Act/Rules and appellant has no role to play in that, levelling allegation on him is without substance and out of proportion, it is to be noted that charge of misdeclaration of value on the basis of higher value identical/similar goods available in the data cannot be invoked. For levelling charge of misdeclaration needs high standard of proof based on evidential invoice of the import not assessment, data of identical similar goods is for the purpose of assessment not for levelling allegation of misdeclaration of value as ordered in para 78 and subpara (3) of para 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of S.R.O. 466(I)/2009 dated 13.06.2009. therefore, we failed to digest the wisdom of respondents Nos. 1 and 4 charge of misdeclaration on the basis of higher value available in the data in derogation of provision of Section 32 of the Act and para 78 and sub-para (3) of para 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of Notification No S.R.O.466(I)/2009 dated 13.06.2009. Therefore, we are left with no other option except to hold that the charge of misdeclaration of value without substance and nullity to the provision of Act and Rules and Regulation framed there-under, for reaching at the said decision we are indebted by the decision authored by the Learned Member Technical of this Bench reported at 2014 PTD 190 Messrs Shoaib Tayyab International v. Additional Collector of Customs, Adjudication-II.

9.In the light of above deliberation and adhering the ratio decidendi set-forth by the judicial fora, we hold that the preparation of contravention report by respondent No. 1 and issuance of show-cause notice and passing of order-in-original by respondent No. 2 are ab-initio, illegal and void and as such is of no legal effect. Therefore, we annul those and set aside the order passed by the forum below and allow the appeal as no order to cost.

HBT/86/Tax(Trib.) Appeal allowed.