BADAR COMPUTER ENTERPRISES VS The DEPUTY COLLECTOR OF CUSTOMS, 2019 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1045 (2018)

2019 P T D (Trib.) 1045

[Customs Appellate Tribunal]

Before Muhammad Sajid Abbasi, Member (Judicial-II)

BADAR COMPUTER ENTERPRISES

Versus

The DEPUTY COLLECTOR OF CUSTOMS and 3 others

Customs Appeal No.K-1783 of 2016, decided on 05/09/2018.

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

----Ss. 186, 179, 168, 180, 83 & 80---Customs Rules, 2001 Rr. 438 & 442---Import Policy Order, 2013, Appendix G---S.R.O. No. 371(I)/2002, dated 15-06-2002---Detention of goods pending payment of fine or penalty---Power of adjudication---Seizure of things liable to confiscation---Show-cause notice---Checking of goods declaration by Customs---Clearance of goods---Assessment---Release of imported goods---Scope---Appellant imported consignment comprising of several kinds of fabric---Appellant filed goods declaration, assessing officer examined the goods and passed assessment orders---Inbuilt delegated authority of Customs Computerized System (CCS) passed clearance order in terms of S. 83, Customs Act, 1969---Appellant approached the terminal operator for delivery of goods who showed his inability to deliver due to the fact that Deputy Collector of Customs (Appraisement) had blocked the goods declaration---Appellant approached Deputy Collector of Customs (Appraisement) who informed him that goods in question seemed to be of Indian origin and re-examination was required---Re-examination was conducted and it revealed the same result as that of earlier assessment order---Deputy Collector of Customs (Appraisement) framed contravention report and forwarded the same to the Assistant Collector of Customs (Adjudication) for issuance of show-cause notice---Assistant Collector of Customs (Adjudication) confiscated the goods and imposed penalty equivalent to the value of goods---Collector of Customs (Appeals) dismissed the appeal---Validity---Consignment of an import could be detained under S. 186, Customs Act, 1969 after payment of leviable duty and taxes and order of clearance, if any adjudication order against the said importer was in field and wherein fine/penaltyimposed upon him, had not been paid or in a case where contravention report had been framed in an under-clearance consignment for imposition of penalty---In absence of availability of both the conditions of S. 186, Customs Act, 1969 consignment of an importer could not be detained---No such order was available in the present case to the contrary the consignment of the appellant was detained by Deputy Collector of Customs (Appraisement) after passing of valid assessment/clearance order on the premise that the goods so imported seemed to be of Indian origin as against China---Detention under the said pretext was not permissible under the provision of S. 186, Customs Act, 1969---Deputy Collector of Customs (Appraisement) was not empowered to detain the consignment of appellant for seizing subsequently under S. 168(1), Customs Act, 1969, for preparation of contravention report and initiation of adjudication proceedings---Illegal act of Deputy Collector of Customs (Appraisement) rendered the entire exercise right from detention till passing of Order-in-Original and Order-in-Appeal without lawful authority and jurisdiction---Appellate Tribunal vacated the show-cause notice and set aside the order passed thereon.

MessrsO.S.Corporation v.FOPandothers2015 PTD 560ref.

Amir Siddiqui v. Federation of Pakistan and 3 others 2014 PTD 582 fol.

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

----Ss. 3DD, 26A, 80, 179 & 180---Customs Rules, 2001, R. 438---S.R.O. No.500(I)/2009, dated 13-06-2009---Audit---Checking of goods declaration by customs---Power of adjudication---Jurisdiction---Procedure---Appellant imported consignment comprising of several kinds of fabric and filed goods declaration---Assessing officer examined the goods and passed assessment orders---Inbuilt delegated authority of Customs Computerized System passed clearance order in terms of S. 83, Customs Act, 1969---Appellant approached the terminal operator for delivery of goods who showed his inability to deliver on the ground that Deputy Collector of Customs (Appraisement) had blocked the goods declaration---Appellant approached Deputy Collector of Customs (Appraisement) who informed that goods in question seemed to be of Indian origin and re-examination was required---Re-examination was conducted which revealed the same result as that of earlier assessment order---Despite the very fact Deputy Collector of Customs framed contravention report and forwarded the same to the Assistant Collector of Customs (Adjudication) for issuance of show-cause notice---Assistant Collector of Customs (Adjudication) confiscated the goods and imposed penalty equivalent to the value of goods---Validity---Directorate General of Post Clearance Audit and its officers were delegated powers through S.R.O. No. 500(I)/2009, dated 13-06-2009 for conducting audit of import books of account which included every aspect of declaration made by the importer and assessment order passed by the competent authority---Directorate General of Post Clearance Audit could prepare audit observation and forward it to the importer for clarification and if the reply failed to settle the issue, frame contravention report and forward the same to the Clearance Collectorate which was to forward it to the respective Collectorate of Customs Adjudication for issuance of show-cause notice and passing of order-in-original---Deputy Collector of Customs (Appraisement) and Assistant Collector of Customs (Appraisement) in the present case, had assumed the powers of officials of Directorate General of Post Clearance Audit and conducted the post clearance audit of the goods declaration of importer---Preparation of contravention report by Deputy Collector of Customs (Appraisement) was without lawful authority and superstructure built thereon was void ab initio and coram non judice.

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

----Ss. 180, 32 & 32A---SRO No. 886(I)/2012, dated 18-07-2012---Show-cause notice---Jurisdiction---False statement---Fiscal fraud---Scope and imported consignment comprising of several kinds of fabric and filed goods declaration---Assessing Officer examined the goods and passed assessment orders---Inbuilt delegated authority of Customs Computerized System passed clearance order in terms of S. 83, Customs Act, 1969---Appellant approached the terminal operator for delivery of goods who showed his inability to deliver in view of the fact that Deputy Collector of Customs (Appraisement) had blocked the goods declaration---Appellant approached Deputy Collector of Customs (Appraisement) who informed that goods in question seemed to be of Indian origin and re-examination was required---Re-examination was conducted and it revealed the same result as that of earlier assessment order---Despite the very fact Deputy Collector of Customs (Appraisement) detained the consignment, framed contravention report and forwarded the same to the Assistant Collector of Customs (Adjudication) for issuance of show-cause notice---Assistant Collector of Customs (Adjudication) confiscated the goods and imposed penalty equivalent to the value of goods---Validity---Federal Government through SRO No. 886(I)/2012, dated 18-07-2012 had formed Collectorate of Customs Adjudication for adjudication of cases wherein revenue loss to the exchequer was visible---Present case fell within the domain of Collectorate of Customs Adjudication and contravention report was rightly forwarded by Deputy Collector of Customs (Appraisement) to the Collectorate of Customs Adjudication but Assistant Collector of Customs (Adjudication), in the present case, laid hands on the exclusive jurisdiction of Collectorate of Customs Adjudication---Said act of Assistant Collector of Customs (Adjudication) tantamounted to transgression which rendered the entire proceedings without jurisdiction, void ab initio and coram non judice.

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 SC 514; Ali Muhammad v. Hussain Buksh and others PLD 2001 SC 514; Land Acquisition Collector, Nowshehra 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 ref.

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

----Ss. 179 & 180---S.R.O. No.371(I)/2002 dated 15-06-2002---Power of adjudication---Show-cause notice---Pecuniary jurisdiction---Scope---Assistant Collector of Customs issued show-cause notice and confiscated appellant's imported goods---Validity---Expression of S. 179, Customs Act, 1969, was very clear in regards to determination of the powers of the Adjudicating Authority on the basis of amount of duty and taxes involved excluding the conveyance and not the amount of evaded duty and taxes---Present case involved amount of Rs. 22,00,880, competent authority was Additional Collector of Customs to adjudicate the case of said amount under clause (ii) of S. 179(1), Customs Act, 1969---Assistant Collector of Customs had issued the show-cause notice while usurping the powers of his superiors, show-cause notice, in circumstances, was issued without lawful authority and jurisdiction.

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

----Ss. 80, 2(a), 4 & 180---Import Policy Order, 2013, Appendix-G & para 5(B)(iii)Sr. Nos. 357 & 358,---S.R.O. No.371(I)/2002,dated15-06-2002---Import of goods of Indian origin---Checking of goods declaration---Adjudicating Authority---Powers and duties of officers of Customs---Show-cause notice---Scope---Assistant Collector of Customs issued show-cause notice and confiscated appellant's imported goods---Validity---Cases of goods of Indian origin had to be dealt with by competent authority at the time of passing assessment order---Principal Appraiser had the jurisdiction in terms of S.R.O. No. 371(I)/2002, dated 15-06-2002 to adjudicate such cases---Show-cause notice issued by Assistant Collector of Customs was usurpation of the powers of his subordinate, the Principal Appraiser, which he could only exercise under S. 4, Customs Act, 1969, during the course of administrative work and not for the purpose of adjudication---Show-cause notice was heldtohavebeenissuedwithoutlawfulauthority and jurisdiction.

Messrs Paramount International (Pvt.) Ltd. v. FOP and others 2014 PTD 1256; Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240; Sardar Ahmed Yar Khan Jogzai v. Province of Balochistan 2002 SCMR 1022; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713; Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 rel.

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

----Ss.180, 156, 25 & 25A---Sales Tax Act (VII of 1990), S. 33(11)(c)---Income Tax Ordinance (XLIX of 2001), S. 148---Show-cause notice---Confiscation of goods---Transaction value---Power to determine customs value---Collection agent---Scope---Assistant Collector of Customs issued show-cause notice and confiscated appellant's imported goods---Assistant Collector of Customs invoked S. 11C of Sales Tax Act, 1990 and S. 148, Income Tax Ordinance, 2001---Validity---No Section by the number 11C was available, instead clause 11(c) was present in S. 33 of Sales Tax Act, 1990, which was a machinery section---Likewise, S. 148, Income Tax Ordinance, 2001 was also a machinery section as it contained procedure for collection of Income Tax levied at import stage on the value determined either under S. 25, Customs Act, 1969 or with the application of valuation ruling issued by the Directorate General of Valuation---No charge under said sections of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001, could be invoked---Show-cause notice was held to be void ab initio and of no legal effect.

Asstt. Collector v. Khyber Elec. Lamps 2003 PTD 1275; D.G.Khan Cement v. Collector of Customs 2005 PTD 480; Caltex v. Collector 2003 PTD 1593; Union Playing Card Company v. Collector of Customs 2002 MLD 130; Atlas Tyres v. Addl. Collector 2002 MLD 180; State Cement v. Collector PTCL 2001 CL 558; Kashmir Sugar v. Collector 1992 SCMR 1898 and Sarwar International v. Addl. Collector of Customs 2013 PTD 813ref.

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

----Preamble---Federal Board of Revenue and Ministry of Law and Justice could only give opinion and have no mandate to interpret the provision of an Act or amend its provisions---Judicial fora could only interpret the provisions of statute.

Messrs Lever Brother Pakistan Ltd. v. Customs Sales Tax and Central Excise Appellate Tribunal, Karachi 2005 PTD 2462 and Qazi CNG Station, Gujrat and another v. Directorate General of Intelligence and Investigation-FBR, Karachi and 2 others 2016 PTD (Trib.) 107 rel.

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

----Ss. 179, 202 & 180---Sales Tax Act (VII of 1990), Ss. 11 & 48---Income Tax Ordinance (XLIX of 2001), Ss.140 & 162---Show-cause notice---Recovery of government dues---Recovery of arrears of sales tax---Recovery of tax from persons holding money on behalf of a taxpayer---Collection agents---Power of adjudication---Scope---Customs Collectorates do not have the power to collect Sales Tax and Income Tax as duty at import stage---Customs Collectorates can recover the amount of Sales Tax and Income Tax upon receipt of notice from the Officer of Inland Revenue and Commissioner of Income Tax, in terms of S. 48 of Sales Tax Act, 1990 & S. 140 of Income Tax Ordinance, 2001 for recovery of the adjudged amount of Sales Tax and Income Tax after due process of law---Clearance Collectorates have the authority to collect Sales Tax and Income Tax at import stage in the capacity of collecting agents and can recover escaped/short paid customs duty and regulatory duty levied on the imported goods but do not have the powers to adjudicate cases of short recovery of Sales Tax and Income Tax.

Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi 2011 PTD (Trib.) 110; Messrs Global Marketing Services and another v. Model Customs Collectorate and another 2010 PTD (Trib.) 2086; Collector of Customs, Islamabad v. Global Marketing Services and another, v. Model Customs Collectorate and another SCRA No. 01/2010; Al-Haaj Industrial Corporation (Pvt.) Ltd., Peshawar v. Collector of Customs (Appraisement) 2004 PTD 801; Messrs Lucky Cement Ltd. v. Federation of Pakistan and others C.P. No. D-216/2013; Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others 2014 PTD 1963; Muhammad Measum and others v. FOP and 2 others 2015 PTD 702; Asif Textile Trading v. Directorate General I&I-FBR 2016 PTD (Trib.) 969; Phillip Morris (Pakistan) Ltd, Karachi v. Additional Collector of Customs 2016 PTD (Trib.) 1008; Al-Fajer Associates v. Directorate General of Intelligence and Investigations-FBR 2016 PTD (Trib.) 2125; Pepsi Cola Export Corporation, Karachi v. DirectorateGeneralofPostClearanceAuditand 2othersAppealNo.K-1635/2014; Messrs M.R. Sons, Karachi v. Directorate General of Intelligence and Investigations-FBR Appeal No. K-1029/2016; Messrs Muhammad Imran, Karachi v. Directorate General of Intelligence and Investigations-FBR Appeal No. K-1030/2016; Messrs Rightway Trading Company, Karachi v. Deputy Collector of Customs, MCC of Appraisement-West and 3 others Appeal No. K-1343/2015; Messrs Zubair Wali Ahmed Zai Ltd. v. The Principal Appraiser, Directorate of Transit Trade and others 2016 PTD (Trib.) 2463; Singer Pakistan Ltd. v. Collector of Customs and 2 others 2017 PTD (Trib.) 481; 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23; 2007 PTD 250; XEN Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax, Faisalabad 2008 PTD 1973 and DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129 ref.

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

----Ss. 2(a), 32, 80, 83, 193, 193A & 195---Customs Rules, 2001, R. 438---S.R.O. No. 371(I)/2002, dated 15-06-2002---Adjudicating authority---Assessment---Checking of goods declaration by Customs---Clearance of goods---Appeal---Procedure---Show-cause notice---Jurisdiction---Past and closed transaction---Scope---Appellant imported consignment comprising of several kinds of fabric---Appellant, importer filed goods declaration; Assessing Officer examined the goods and passed assessment orders---Inbuilt delegated authority of Customs Computerized System passed clearance order in terms of S. 83, Customs Act, 1969---Appellant approached the terminal operator for delivery of goods who showed his inability to deliver due to the fact that Deputy Collector of Customs (Appraisement) had blocked the goods declaration---Appellant approached Deputy Collector of Customs (Appraisement) who informed that goods in question seemed to be of Indian origin and re-examination was required---Re-examination was conducted and it revealed the same result as that of earlier assessment order---Despite the very fact Deputy Collector of Customs (Appraisement) detained the consignment under S. 186, Customs Act, 1969 on the basis that the goods were of Indian origin and as such were not importable under Appendix G to the Import Policy Order, 2013---Deputy Collector of Customs (Appraisement) framed contravention report and forwarded the same to the Assistant Collector of Customs (Adjudication) for issuance of show-cause notice---Assistant Collector of Customs (Adjudication) confiscated the goods and imposed penalty equivalent to the value of goods---Collector of Customs (Appeals) dismissed the appeal---Validity---Once an assessment order was passed, it could not be disturbed by any authority by preparing contravention report---Only course available to the Deputy Collector of Customs (Appraisement) was to challenge the assessment order before Collector of Customs (Appeals)---Collector of Customs (Appeals) could issue show-cause notice to the appellant/importer under S. 32, Customs Act, 1969---Instead of adhering to the prescribed method, Deputy Collector of Customs (Appraisement) reopened the assessment/ clearance order under S. 195, Customs Act, 1969, under which no powers were vested either with Deputy Collector of Customs (Appraisement) or Assistant Collector of Customs (Adjudicated)---By virtue of non-filing of appeal against the assessment order, transaction attained finality and became past and closed transaction which could not be disturbed---Appellate Tribunal vacated the show-cause notice and set aside the order passed thereon.

Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division 2014 PTD 1256; Messrs Smith Kline French v. Pakistan 2004 PTD 3020 and Messrs World Trade Corporation v. Central Board of Revenue 1989 MLD 4310 rel.

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

----S. 180--- Show-cause notice--- Issuance--- Scope--- Orders of adjudication having been passed outside the charter of show-cause noticeweredeclaredtohavebeenpassedwithout lawful authority.

Collector Excise and Land Customs and others v. Rehm Din 1987 SCMR 1840; Adam v. Collector of Customs, Karachi PLD 1969 SC 446; Muhammad Sadqain v. Collector of Customs (Appraisement) 2006 PTD 2742 and Messrs Exide Pakistan Ltd. v. Deputy Collect of customs (Adjudication-III), Karachi 2004 PTD 1449 ref.

Nadeem Ahmed Mirza for Appellant.

Zakaullah, A.O. for Respondents.

Date of hearing: 15th August, 2018.

JUDGMENT

MUHAMMAD SAJID ABBASI, MEMBER (JUDICIAL-II): Through this order, I, intend to dispose off Appeal bearing No. K-1783/ 2016 directed against Order-in-Appeal No. 857/2016 dated 25.08.2016 passed by Collector of Customs (Appeals), Karachi (maintaining the Order-in-Original No. 509605 dated 21.04.2016 passed by Assistant Collector of Customs, Adjudication, MCC of Appraisement-West, Karachi.

2.Brief facts of the case are that the Appellant imported a consignment comprising of (i) 7800 kgs of Polyester Grey Unfinished Fabric (ii) 1500 kgs Polyester Shirting Fabric and (iii) 1200 Kgs of Viscose Blended Fabric of China origin @ US$ 3 and 4/kg respectively C&F, Karachi from Messrs Bello and Grasso General Trading LLC Dubai, UAE on credit i.e. remittance to be made 60 days after the clearance of the goods. The seller in accordance with the terms and conditions of the contract, ordered the goods from the exporter in China namely Messrs Shoaxing Changfang Textile Co. Ltd., with the direction to get the goods manufactured as per specification and thereafter ship those directly to Appellant in Pakistan and the documents corresponding to those to him for onward dispatching by him to the Appellant for remitting the contracted amount, the direction was complied with and the seller thereafter dispatched the invoice, packing list, B/L and Certificate of origin to the Appellant. On the strength of which the Appellant transmitted Goods Declaration, (The GD) to the MCC of Appraisement (West) under Section 79(1) of the Customs Act, 1969 (The Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 (The Rules) and as per pre-condition for availing the regime of Customs Computerized System (CCS), deposited upfront duty and taxes of Rs. 883,581.00 in National Bank of Pakistan, consequent to which GD was numbered KAPW-HC-103545-09122015. Upon appearance of the GD on his desktop, the nominated Assessing Officer, instead of completing the assessment on the basis of the declaration and scanned documents, opted to get the goods examined first under the provision of Section 198 and Rule 435 of the Act/Rules and to proceed with, adduced his opinion and referred it to the Deputy Collector, Group-IV, MCC of Appraisement (West), Karachi (Respondent No. 2), who assented and routed it to the Deputy Collector of Customs, KICT of MCC of Appraisement (West), who marked it to the examining official on selection criteria basis. Who verified the declaration and posted the report in the reservoir of the GD. Upon receipt of which the nominated Assessing Officer for further confirmation transmitted view message under Rule 437 to the appellant for uploading of invoice and packing list, in compliance to the direction Appellant uploaded those in the reservoir of GD. Thereafter, the competent authority defined in Section 2(a) of the Act, in exercise of the powers vested upon him through S.R.O. 371(I)/2002 dated 15.06.2002 completed the assessment with the application of Valuation Rulings and passed assessment orders under the provision of Section 80 and Rule 438 of the Act/ Rules and transmitted view message for payment of additional amount of duty and taxes of Rs. 355,694.00, which appellant deposited on 17.12.2015, consequent to which the inbuilt delegated authority of the CCS passed clearance order in terms of proviso of Section 83(1) reading as "when the owner of any goods entered for home consumption and assess under Section 80 has paid the import duty and other charges, if any in respect of the same the appropriate officer, if he is satisfied that the import of the goods is not prohibited or in breech of any restriction or condition applying to the import of such goods, may make an order for the clearance of the same" and Rule enunciating "Customs release message will be electronically communicated to the importer, his agent and the Terminal Operator. The goods will be release by the terminal operator subject to fulfilling of any condition specified Customs in electronic message to the terminal operator. The Terminal Operator shall submit all collected documents requisitioned through electronic message to the customs at the end of the day" of the Act/Rules. The clearance order view message dated 17.12.2015 with clarity validated the fact that the entire duty and taxes levied on the consignment in accordance with the assessment order passed under Section 80 of the Act have been collected and delivery/gate out been allowed without any condition i.e. subject to condition of collection of any document as contemplated in Rule 442 ibid. That on the strength of the said message appellant's representative, after obtaining delivery order from the shipping company, approached the Terminal Operator for payment of their charges, who displayed their inability to do so on the plea that the Deputy Collector of Customs (R&D), MCC of Appraisement (West) (Respondent No. 1) has blocked the GD. The Appellant thereafter rushed to him, who informed the Appellant that it is his apprehension that the duty and taxes are not being paid correctly due to an erroneous assessment and that the goods in question seem to be of Indian origin instead of Chinese, for which re-examination is desired upon, which Appellant agitated against forcefully but of no avail. The Respondent No. 1 conducted 2nd examination, which revealed the (same results as of earlier examination, for which GD was blocked and consignment was detained) validating the assessment orders. Despite of the said fact the Respondent No. 1 directed his officials to detain the consignment under Section 186 of the Act on the basis of his hunch that the goods are of Indian origin and as such are not importable under Appendix-G to the Import Policy Order, 2013. Subsequently, seizure was made and FIR was registered against which Appellant obtained pre-arrest bail from the competent court of jurisdiction. The Respondent No. 1 thereafter framed contravention report and forwarded the same to the Collector of Customs, (Adjudication-I) for issuance of show-cause notice. Instead of issuing show-cause notice by the competent authority defined in Section 179 of the Act, the Collectorate of Customs Adjudication, Respondent No. 3 issued show-cause notice dated 17.02.2016, which was replied, but failed to get the nod of Respondent No. 3 and he passed order dated 21.04.2016 through which confiscation of the goods was ordered out-rightly beside imposition of penalty equivalent to the value of the goods. Operating paras of the order are reproduced here-in-under:--

"In view of the position elucidate above, it is established that the importer i.e. Messrs Badar Computers Enterprises, Karachi in connivance with shipping and forwarding agent i.e. Messrs AMI Pakistan (Pvt.) Ltd., knowingly and fraudulently with mala fide intentions mis-declared the port of shipment and origin of the goods. They also mis-declared the name of consigner and consignees and mis-declared value and description of the goods through fabricated and forged documents to hoodwink the customs authorities. The importer in connivance with M/s. AMI Pakistan has fraudulently manipulated/tampered the particulars in the IGM, B/L, GD and other import documents to avoid application of IPO on their consignments of Indian fabric. This modus operandi of twisting facts and forging of documents was adopted by the importer in connivance with Messrs AMI because Indian fabric of this particular PCT is banned even if it comes from any part of the world.

Thus the act of importer and shipping and forwarding Agent is in violation of the provisions of Sections 16, 32(1) and (2), 32A, 79 and 209 of the Customs Act, 1969 read with Section 3 of Import and Export (Control) Act, 1950 and Serial No. 363 of Appendix G, rule 5(B) (iii) of Import Policy Order 2013-15, section 2(37) of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 punishable under clauses (1), (9), (14), (14A) and (77) of Section 156(1) of the Customs Act, 1969 read with S.R.O. 499(I)/2009 dated 13.06.2009 as amended from time to time under section 33 of the Sales Tax Act, 1990 and under Section 182(5) of the Income Tax Ordinance.

Since the charges of the show-cause notice stand established I therefore order to confiscate the said goods of GD No. HC-103545 dated 09.12.2015 in terms of clauses (9), (14), (14A) of Section 156(1) of the Customs Act, 1969. A penalty equal to one time the value of the goods is imposed on importer and also on shipping and forwarding agent separately due to violation of above provisions of law.

Regarding option of release of goods on payment of duty and taxes and fine penalty because the culmination of these confiscated goods will be on auction and if so then why not such option should be given to the importer to buy the same on the value of goods plus duty and taxes and fine penalty. It is pertinent to mention that when goods are confiscated it becomes Government property under Section 182 of the Customs Act, 1969 and disposal of such property is required to be done through public auction so it will be the violation of that rule/section. Moreover, Constitution of Pakistan also provide equal opportunity to all citizens of Pakistan and in this way the Constitutional right of other Pakistanis will also be compromised if auction of goods is restricted to the accused only. Moreover, it is established law that the benefit of any provision of law should not be given to a person who does not come up with clean hands, hence not entitled for equitable relief.

What is discuss above I also order that the goods, if law permits, may be put to auction on priority so that the goods should not decline their value and utility."

3.The Appellant challenged the vires of the impugned order-in-original before the Respondent No. 4 vide Appeal No. Cus/0498/ 2016/A-West, which was dismissed vide order dated 25.08.2016 on the basis of formed opinion that neither contract registered with any authority in Pakistan, UAE or China and the impugned transaction defies the payment method specified as basis of import, at S.No.3 of Import Policy Order. Additionally, invoice and packing list are issued on the designated supplied letter head which does not have a phone number or email or website. Para 5 is relevant and are reproduced here-in-under:-

"5- I have examined the case record. The appellants statedly contracted for purchase of impugned goods with a UAE based company vide contract No. D&G/KHI/Sep/901 dated 17.09.2015. The said contract depicts the description of goods as:- (a) polyester grey unfinished fabric (ii) polyester shirting fabric (c) viscose blended fabric. The shipment was supposed to be made from China by Messrs Shoaxing Changfang Textile Co. The payment mode is through telegraphic transfer directly to a UAE based account. This is not a registered contract, neither authenticated by any authority in Pakistan, UAE or China. At the outset it is noted, at Sr. No. 3 of Import Policy Order. Subsequently the invoice and packing list are issued on the designated suppliers letters head which does not have a phone number or email or website. The certificate of origin stating the goods to be of China origin issued on the declaration by an exporter who is a different entity viz, Shenzene Huadingxing import and export Co., the certificate bears the date as Jan 11, 2016, which is about two months after shipment of goods and are one month after filing of goods declaration. Clearly this certificate of origin is an afterthought. The appellants arranged paper trail to show goods of China origin but did not claim benefit of Pak China free trade agreement. Even the shipment of goods was shown as from China vide the house bills of lading submitted to customs. Later the bluff was called by respondents and it was found that goods were shipped from UAE and back tracked the goods as originated from India. It has also been found that goods were actually crinkle shaffon and georgette, whereas appellants were hiding behind a generic description of textile fabric to suppress actual value of the goods. The reporting Collectorate have done a commandable job to unearth the phenomenon of importing banned fabric of Indian origin under the garb of China origin goods against fabricated paper trail. The Appellant apart from misdeclaration for customs purposes to circumvent import restrictions and to evade duty/taxes, are also indulging in dubious financial transaction. They have not approached this forum with clean hands and deserve no relief. The appeal is dismissed. This order shall have no bearing an any proceedings pending in a court of law or before any other forum."

4.Now the Appellant challenged the vires of the order passed by respondents Nos. 3 and 4 through the subject 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 by Respondent No.2, which least falls within the ambit of cross objection as enunciated in subsection (4) of Section 194A of the Act and as such least qualify as cross appeal. Nevertheless, same are placed on record for perusal and consideration for the sake of fair play and justice..

5.Heard, case record's and relied upon citations perused, which led me to frame the following issues for decision:-

(i)Whether the consignment which has been assessed for levy of duty and taxes under the provision of Section 80 and Rule 438 of the Act/Rules after passing valid assessment order and payment of communicated duty and taxes and thereafter passing of clearance in terms of Section 83 and Rule 442 ibid could be detained/seized by Respondent No. 1 under Sections 186 and 168(I) for connected proceeding under Section 180 of the Act?

(ii)Whether audit of the record maintained under Section 211 and GD transmitted under Section 79(1) of the Act of the importer post clearance falls within the domain of Official of Respondents Nos. 1 and 3 in the presence of availability of Section 3DD of the Act and S.R.O. No. 500(I)/2009 dated 13.06.2009?

(iii)Whether Respondent No. 3 was empowered to adjudicate a case having revenue loss attracting the provision of Sections 32(1)(2) and 32A of the Act in the presence of availability of S.R.O. 886(I)/2012 dated 18.07.2012?

(iv)Whether the case, involving amount of duty and taxes of Rs.2,200,880.00 falls within the powers of Respondent No. 3 as contemplated in Section 179 of the Act and as to whether he is empowered to adjudicate case pertaining to contravention of Import Policy Order, 2013-2015 to be read with S.R.O. 371(I)/2002 dated 15.06.2002, having no loss of revenue?

(v)Whether invoking of Section 11(c) of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 in the show-cause notice by Respondent No. 3 is correct and valid and as to whether he is empowered to issue show-cause notice in the matter of Sales Tax and Income Tax falling under the provision of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of Income Tax Ordinance, 2001?

(vi)Whether Respondent No. 3 was empowered to issue show-cause notice under Section 180 for piling yet another order of Section 179 of the Act on the existing appealable order passed by the authority defined in Section 2(a) under Section 80 and Rule 438 of the Act/Rules in derogation of Article 13 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial Fora?

(vii)Whether Respondents Nos. 3 and 4 were empowered to pass orders outside the charter of the show-cause notice?

(viii) Whether reliance of Respondent No. 3 on Section 187 of the Act, is legal and as to whether he and his subordinate discharged the burden laid under Articles 117 and 121 of Qanun-e-Shahadat (10 of 1984) and the law laid down by the Superior Judicial Fora of proving the goods of Indian Origin?

(ix)Whether import of Chinese goods through Buying House of UAE or any other country is prohibited under any provision of the Import Policy Order, 2013-2015 and Act?

(x)Whether for determination of the origin of the goods certificate of origin issued by the exporting country in terms of the Rules 16 and 17 of Rules of of Origin, 1973 issued vide S.R.O. No. 2(13)/71.GATT dated 27.02.1973 and the law laid down by the Superior Judicial Fora is a valid document?

(xi)Whether Respondents Nos. 1 and 2 were/are clearing identical/similar goods without any objection/hitch and hindrance of other importers and as to whether the Respondent gave differential treatment to the Appellant in derogation of Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan?

6.That as regard to issue No. (i), the consignment, which had undergone the process of passing of assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by Respondent No.2 or his subordinates under the provision of Section 186 of the Act. Under the said section a consignment of an importer can be detained after payment of leviable duty and taxes and order of clearance by the authority defined in the said section or S.R.O. 371(I)/2002 dated 15.06.2002, if any adjudication order against the said importer is in field and wherein fine/ penalty have been imposed upon him and which have not been paid or in a case wherein contravention report has been framed in an under clearance consignment, for adjudication by the competent authority defined in Section 179 ibid for imposition of fine or penalty. In the absence of availability of both the conditions of Section 186 of the Act, consignment of any importer cannot be detained. In the case under consideration no such order is available, wherein adjudicating authority imposed any fine or penalty on the appellant, nor any contravention report was prepared for the purpose of adjudication, prior to passing of assessment/clearance order under the respective Provisions of the Act/Rules. To the contrary the consignment of the Appellant has been detained under Section 186 of the Act by Respondent No. 1, after passing of valid assessment/ clearance order by the authority defined in Section 2 (a) of the Act in exercise of the powers conferred upon him through S.R.O. 371(I)/2002 dated 15.06.2002, on the premise that the goods so imported seems to be Indian Origin as against China. Detention under the said pretext is not permissible under the provision of Section 186 of the Act by the officials of Respondent No. 1 or any other authority due to being in derogation of the expression of Section 186 ibid and this stands validated from the judgment 2015 PTD 560 Messrs O.S. Corporation v. FOP and others, referred in the ground (ii) and 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 3 others that "authorities could detained such goods in respect of which inquiry or investigation was pending and not the goods which had been or were been imported by a person. The subsequent imported goods belonging to a same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remained un-paid. By no stretch of imagination all subsequent import can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In our opinion no such action is permitted under this provision. The Respondent are only authorized to take action for issuance of detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against the person. The procedure and mechanism provided Section 202 of the Customs Act, 1969 is entirely independent of any action taken in terms of Section 186 of the Act. It is not the case of Respondent that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's or even the goods covered by the instant petition and thereafter detention notices have been issued. With this the Hon'ble High Court of Sindh declared the detention of the consignment without lawful authority by holding that provision of Section 186 of the Customs Act, 1969 did not empowers the authority to do so." By gaining strength from the expression of Section 186 and the law laid down, I have no hesitation to hold that the Respondent No. 1 and his subordinates were not empowered to detain the subject consignment of the Appellant for seizing subsequently under Section 168(1) for preparation of contravention report and initiation of adjudication proceeding under Section 180 of the Act. This illegal act renders the entire exercise right from detention till passing of order-in-original/appeal by Respondents Nos. 1, 3 and 4 without lawful authority and jurisdiction. Hence, void and ab-initio and as such coram non judice. The issue No. (i) is answered in negative.

7.That as regard to issue No. (ii), the legislature has inserted Section 3DD in the Act, through which Directorate of Post Clearance Audit (DG, PCA) has been created and its Officials been delegated powers through S.R.O. No. 500(I)/2009 dated 13.06.2009 for conducting audit of the importer record maintained under Section 211 under Section 26A of the Act, which includes every aspects of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 and Rule 438 of the Act/Rules. Upon finding discrepancy or any ambiguity in the declaration or the contravention of the law, audit observation is prepared and forwarded to the importer for clarification, if the reply fails to settle the issue, frames contravention report in terms of Section 32(3A) of the Act and forward to the Clearance Collectorate, which onward forward to the respective Collectorate of Customs, Adjudication for issuance of show-cause notice under section 180 of the Act, and passing of order-in-original as per the expression of Section 179 ibid. The Respondents Nos. 1 and 3 assumed the powers of officials of DG, PCA and conducted the Audit Post Clearance of the GD of the Appellant under Section 26A in the absence of availability of powers. None of the Officials of Clearance Collectorate or Adjudication are empowered to transgress the sovereign jurisdiction of DG, PCA under any circumstances as this will render the formation of DG- PCA by the legislature under Section 3DD of the Customs Act, 1969 and the powers delegated under Notification No. 500(I)/2009 dated 13.06.2009 as redundant. The Tribunal has observed with great concern that the Respondents Nos. 1 and 3 are running parallel departments to the DG, PCA in derogation of Section 3DD ibid, this is not permitted under law as the said act shall be instrumental in creating a situation of anarchy within the different organs of FBR, who will left no stone unturned for exceeding their jurisdiction while encroaching the powers/jurisdiction of the other sovereign organ of the FBR. These type of act cannot be allowed to be perpetuated under any circumstances instead have to thwart from the very beginning for sustaining the integrity and independence of the different sovereign organs of FBR. Therefore, preparation of contravention report by Respondent No. 1 is without any lawful authority as such without any power/ jurisdiction and superstructure built thereupon is as well void and ab-initio and coram non judice. The issue No. (ii) is answered in negative.

8.That as regard to issue No. (iii). The Federal Government through S.R.O. No. 886(I)/2012 dated 18.07.2012 formed Collectorate of Customs Adjudication for adjudication of the cases wherein, revenue loss to the exchequer is visible attracting Sections 32(1) and (2) and 32A of the Act. I, have noted that in the instant case the Respondent No. 1 had worked out loss of revenue of Rs. 966,605.00 and invoked the provision of Sections 32(1) and (2) and 32A of the Act. Therefore, the instant case falls within the domain of Collectorate of Customs Adjudication and contravention so prepared was rightly forwarded by the Respondent No. 1 to the Collectorate of Customs Adjudication as evident from para 5 of show-cause notice dated 17.02.2016 and order-in-original dated 21.04.2016 reading as "contravention report against the importer Messrs Badar Computer Enterprises (NTN-2477017) Shop No. GA-169, Ground Floor, Techno City, I.I. Chundrigar Road, Karachi is forwarded to Adjudication Collectorate for initiation of adjudication proceeding under the above referred provision of law read with S.R.O. 499(I)/2009". In nullity to the expression of notification and para 5 of show-cause notice and order-in-original the Respondent No. 3 laid hands on the exclusive jurisdiction of Collectorate of Customs Adjudication. This is tantamount to transgression, which is not permitted under law, rendering the entire proceeding without powers/jurisdiction, void and ab-initio and coram non judice and this stood validated from the reported judgments Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 A.L.D. 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 SC 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 SC 514 Land Acquisition Collector, Nowshehra 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.

9.That as regard to issue No. (iv), the expression of Section 179 of the Act is very clear in regards to determination of the powers of the adjudicating authority on the basis of "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes". In this case the amount involved is Rs.2,200,880.00 (paid Rs.883,581.00 for obtaining clearance on 09.12.2015 vide cash No. CAPW-004981 + communicated additional amount Rs. 350,694.00 paid on 17.12.2017 + revenue loss shown in show-cause notice Rs. 966,605.00. The competent authority to adjudicate the case of said amount under clause (ii) of Section 179(1) of the Act rest with Additional Collector of Customs. To the contrary, Respondent No. 3 issued the show-cause notice while usurping the powers of his superiors. This is not permitted under law. Not a single word has been inscribed in the comments, which tantamount to admission and confirms that the Respondent No. 3 usurped the powers of Additional Collector and issued show-cause notice in derogation of the explicit provision of Section 179(1), for better appreciation verbatim of the same is reproduced here-in-under

179 Power of adjudication:---(1) Subject to subsection (2) in cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under this Act or the rules made there-under, the jurisdiction and powers of the officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows, namely:-

(i)	Collector	no limit
(ii)	Additional Collector	not exceeding three million rupees
(iii)	Deputy Collector	not exceeding one million rupees
(iv)	Assistant Collector	not exceeding five hundred thousand rupees
(v)	Superintendent	not exceeding fifty thousand rupees
(vi)	Principal Appraiser	not exceeding fifty thousand rupees.

[Provided that in cases of goods to be exported, the above officers of customs shall have their jurisdiction and powers in terms of FOB value and twice their respective monetary limit.]

(2) Notwithstanding the provisions of subsection (1), the Board may, by notification in the officials Gazette, fix or vary the jurisdiction and powers of any officer of Customs or a class of officers, and may also assigns or transfer {by an order} any case to any {officer} of customs, irrespective of the territorial jurisdiction. (emphasis supplied)

From conscientious study of Section 179(1) of the Act, it is abundantly clear that the authority defined therein has to exercise powers, neither superior nor subordinate is empowered to assume the powers of his superior or subordinates, unless Board is desirous of fixing or varying the jurisdiction and powers of any Officer of Customs or a class of Officers, through a notification in official Gazette as per the expression of subsection (2) of Section 179 assign or transfer any case to any Officer of Customs irrespective of designation or territorial jurisdiction. In the instant case no notification of the Board has been presented empowering Respondent No. 3 for exercising powers of his superior. He assumed the powers of the Board himself in negation of subsection (2) of Section 179 ibid., which he could not assume under any pretext/circumstances. This defect renders the show-cause notice without lawful authority and jurisdiction. Hence, ab-initio, void and ab-initio wrong and the superstructure built there upon no matter how strong it may be has to crumble down. Meaning thereby order-in-original/appeal passed by the Respondents Nos. 3 and 4 on the show-cause notice are as well ab-initio void and coram non judice and as such of no legal effect.

10.It has also been noted that the case in question is in regards to importability corresponding to Serial Nos. 357 and 358 of Appendix-G and para 5(B) (iii) of the Import Policy Order 2013-2015. Cases of such nature are to be dealt by the competent authority defined in Section 2(a) of the Act at the time of passing assessment order under Section 80 and Rule 438 of the Act/Rules, which is Principal Appraiser, who has jurisdiction in terms of SRO. 371(I)/2002 dated 15.06.2002 and none else. Whereas, in the instant case show-cause notice has been issued by Respondent No. 3, who is a non entity, he laid hands on the instant case while usurping the powers of his subordinate i.e. Principal Appraiser, which he could have only exercised under Section 4 of the Act during the course of administrative work not for the purpose of adjudication, which are to be exercised exclusively by the authority empowered to do so and this stands validated from the reported judgments 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and others, that case was of restriction laid upon on the imported goods under the Import Policy Order 2013-2015 i.e. importability and was adjudicated by the Principal Appraiser, which was reopened and subsequently adjudicated by the Additional Collector, the Hon'ble High Court of Sindh held the subsequent proceeding as of no legal effect/jurisdiction and allowed the petition. This order was assailed before the Hon'ble Supreme Court of Pakistan vide C.P.L.A. No. 105-K of 2014 by the Collector of Customs, MCC of Appraisement-West, leave to appeal was refused and petition was dismissed, further stood validated by the judgments relied upon the Appellant and are incorporated in para. 3(iv) supra. Rendering the issuance of show-cause notice and by Respondent No. 3 without lawful authority/jurisdiction and super structure built there upon through order-in-original /appeal are as well without power/jurisdiction and coram non judice without any exception. This proposition of law stands further validated by the Hon'ble Supreme Court of Pakistan in the case "Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240) has held that the Institution specifically barred to adjudicate any matter to the extent of certain mandatory limits shall not be competent and had no jurisdiction to deal with any such matter exceeding the limit subscribe under the law. Hon'ble Supreme Court of Pakistan has held in the case of "Sardar Ahmed Yar Khan Jogzai v. Province of Balochistan" 2002 SCMR 1022 that "where essential features for assumptions of jurisdiction is contravened or forum exercises powers not vested in it or exceed authority beyond limit prescribed by law, the judgment is rendered coram non judice and in operative." Hon'ble Supreme Court of Pakistan in re "Faqir Abdul Majeed Khan v. District Returning Officer and others" 2006 SCMR 1713 has observed that "by now it is well settled that any order which suffers from patent illegality or without jurisdiction, deserve to be knocked down. Whereas, the Hon'ble Supreme Court took a very serious notice in reported judgment 2001 SCMR 1822 Ali Muhammad v. Chief Settlement Commissioner, wherein the Hon'ble Chief Justice presiding a Bench in the capacity of Judge of Supreme Court as was then their lordship was held that "whenever order are passed by an Officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercised in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said Officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to functioninthatcapacityandifthereisabuseofpower bysuchofficer then no hesitation should be felt in passing stringent stricture against officerkeepinginviewofnormsofjustice" re :PLD1958SC104,PLD1973SC326,PLD2002SC630,2003SCMR50,2004 SCMR 25, 2004 SCMR 1798 and PLD 2005 Supreme Court 842. I, therefore, declare the show-cause notice and order-in-original/appeal without power/jurisdiction on this count also. Hence, void and ab-initio and coram non judice. The issue No. (iv) is answered in negative.

11.That as regard to issue No. (v). I, have also noticed with great concern that Respondent No. 3 in the show-cause notice have invoked Section 11C of the Sales Tax Act, 1990 and Section 148(1) of the Income Tax Ordinance, 2001 and that also intentionally while ignoring the fact that in the Sales Tax Act, 1990 no Section by the number 11C is available, instead clause 11(c) is available in Section 33 of the Sales Tax Act, 1990, which is synonymous to Section 156(1) of the Act. Meaning thereby it is a machinery section. Likewise, Section 148 of the Income Tax Ordinance, 2001 is also a machinery section as the same contains procedure for collection of Income Tax levied at import stage on the value determined either under Section 25 or with the application of valuation ruling issued by the Director, Directorate General of Valuation through express under Section 25A of the Act by the authorities expressed in subsection (8) of Section 148 of the Income Tax Ordinance, 2001. No charge under these sections can be invoked, issuance of show-cause notice on the basis of irrelevant sections, renders it void and ab initio and of no legal effect as held in reported judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G.Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593, UnionPlayingCardCompanyv.CollectorofCustoms2002MLD 130,AtlasTyresv.Addl. Collector2002MLD180, StateCement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs.

12.That it has also been contended by the Consultant/ Advocate of the Appellant that Respondent No. 3 even has no mandate to issue show-cause notice in the matter of Sales Tax/Income Tax. Whereas, Respondents are of the view that incorporation of the word "tax" in Sections 32(2) and (3) and 179 of the Act and the clarification issued by the Board vide C.No.3(32)Tar-1/90 dated 06.08.2012 and legal opinion of Ministry of Law vide No. F.242/2012-Law.I dated 11.07.2012 is sufficient for assuming powers under the charging Sections of Section 11 of the Sales Tax Act, 1990 and 162(1) of Income Tax Ordinance, 2001. Upon perusal of Section 32(2) and (3) of the Customs Act, 1969, I have observed that although the word "tax" is available, this does not empowers the Respondent No. 3 to assume powers under the provision of Section 11(2) and (3) of the Sales Tax Act, 1990 and 162(1) of the Income Tax Ordinance, 2001 unless Legislature appoint him as "Officer of Inland Revenue/Commissioner of Income Tax", who has powers under these Sections to take cognizance in the matter relating to Sales Tax and Income Tax. It is to be noted that the word 'tax" inserted in Sections 179 and 32 of the Act is for only assuming of powers on the basis of involved duty and taxes by the appropriate adjudicating authority defined in subsection (1) and in Section 32, for empowering the Officer of Customs to charge the tax payer under the said provision on the basis of amount of duty and taxes, punishable under the respective provision of Section 156(1) of the Act. Therefore, despite of insertion of the word taxes in both the Sections adjudicating authority including the Respondent No. 3 have to issue show-cause notice within the respective applicable provision of the Act only and not under any charging or Section 11 of the Sales Tax Act, 1990 and Section 162(I) of the Income Tax Ordinance, 2001, which are otherwise non existence in the show-cause notice and charge against the Appellant has been levelled under Sections 11C and 148 ibid, which are irrelevant. Even otherwise, the Respondent No. 3 has also relied upon clauses (14) and (14A) of Section 156(1) of the Act, applicable in the case of mis-declaration falling within the ambit of Section 32 of the Customs Act, 1969. These clauses cannot invoked in the matter of Sales Tax and Income Tax falling under sections 11 and 162(1) ibid.

13.For further clarity of the issue I have scrupulously gone through the provision of Section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 and observed that Respondent No. 3 has not been appointed as an Officer of Inland Revenue under these Sections. Resultant, he is not empowered to exercise the powers under Section 11 of the Sales Tax Act,1990 and Section 162 (1) of the Income Tax Ordinance, 2001, which empowers Officer of Inland Revenue/ Commissioner of Income Tax to initiate adjudication proceeding for recovery of short collected/paid Sales Tax/ Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Hence, Respondent No. 3 is not empowered to lay hands on any matter falling under the ambit of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. Reliance of Respondents on the clarification of the Board vide C.No.3(32)Tar-1/90 dated 06.08.2012 and opinion of the Ministry of Law vide No. O.M. No.F.242/2012-Law-I dated 11.07.2012 lend no help to the Respondent No. 3 as Board and Ministry of Law and Justice have no mandate to interpret the provision of the Act or amend the provision. It can only give opinion, it is for the judicial fora to interpret the provision of statute and our opinion stood validated from the reported judgment 2005 PTD 2462 Messrs Lever Brother Pakistan Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal, Karachi that "CBR has no place in the Scheme of Law, conferred with the jurisdiction to interpret any law, statutory or in exercise of any deliberate authority i.e. subordinate legislation". Whereas in reported judgment 2016 PTD (Trib.) 107 Qazi CNG Station, Gujrat and another v. Directorate General of Intelligence and Investigation-FBR, Karachi and 02 others, this Tribunal held that "statute can be amended by the Parliament and a notification through a notification not through any communication. In the absence of amendment of notification, clarification issued by the department could only be termed as opinion and it would not at all amend the notification". Assuming powers on the strength of letter of the Ministry of Law and Justice is palpably illegal beside fatal to the health of the case. Even otherwise, the letter of the Ministry of Law and Justice speaks about collection of Federal Excise Duty at import stage in the same manner and at the same time, as if it is a duty of customs payable under the Customs Act, 1969 (IV of 1969) and for collection of the same the provision of Section 31A also apply. Reference of Section 7 of the Federal Excise Act, 2005 has also been given simply for clarification that for collection of import duty provision of Sales Tax Act, 1990 is applicable. The emphasis in the O.M. is levy and collection. Therefore, to further elaborate and settling the issue to its logical conclusion, we add while referring to Section 6 of the Sales Tax Act, 1990 and 148 of the Income Tax Ordinance, 2001 through which the Clearance Collectorates are empowered to collect the taxes on the imported goods as like custom duty. These sections least empowers the Officers of Customs including Respondent No. 3 to initiate adjudication / recovery proceeding for the short collected/paid, Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. For proceeding with these type of recoveries a show-cause notice has to be issued under the Provision of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, by the authority expressed therein i.e. Officer of Inland Revenue/ Commissioner of Income Tax under subsections (3) and (4) of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. In these sections neither Officer of Customs and Respondent No. 3 figures anywhere. He assumed the power not vested with him under the provision of Sections 11 and 162(1) of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001. Resultant, the Customs Collectorates does have powers to collect, Sales Tax and Income Tax as duty at import stage, conversantly, to the plea that Customs is empowered to recover the short paid amount of sales tax and income tax at the import stage under Section 202 of the Customs Act, 1969 is based on mistaken belief, infact the customs Collectorate could recover the amount of Sales Tax and Income Tax upon receipt of notice from the Officer of Inland Revenue and Commissioner of Income Tax in terms of Section 48 of the Sales Tax Act, 1990 and Section 140 of the Income Tax Ordinance for recovery of the adjudged amount of Sales Tax and Income Tax after due process of law. Therefore, it is our considered opinion that the Clearance Collectorates does have the authority to collect Sales Tax and Income Tax at import stage in the capacity of collecting agent and can recover escaped/short payment paid Custom Duty and Regulatory Duty levied on the imported goods under Section 18oftheActunderSection202ibid.,afterdueprocessoflaw,buthavenopowerstoadjudicatethecasesofshortrecoveryof Sales Tax and Income Tax under sections 11 and 162(1) ibid. and this stood validated from reported/unreported judgments listed below:--

(i)2011 PTD (Trib.) 110 Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi.

(ii)2010 PTD (Trib.) 2086 Messrs Global Marketing Services and another v. Model Customs Collectorate and another.

(iii)SCRA No. 01/2010 Collector of Customs, Islamabad v. Global Marketing Services and another, v. Model Customs Collectorate and another.

(iv)2004 PTD 801 Al-Haaj Industrial Corporation (Pvt.) Ltd., Peshawar v. Collector of Customs (Appraisement).

(v)C.P. No. D-216/2013 Messrs Lucky Cement Ltd. v. Federation of Pakistan and others

(vi)2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others

(vii)2015 PTD 702 Muhammad Measum and others v. FOP and 2 others.

(viii) 2016 PTD (Trib.) 969 Asif Textile Trading v. Directorate General I&I-FBR.

(ix) 2016 PTD (Trib.) 1008 Phillip Morris (Pakistan) Ltd, Karachi v. Additional Collector of Customs.

(x)2016 PTD (Trib.) 2125 Al-Fajer Associates v. Directorate General of Intelligence and Investigations-FBR.

(xi)Appeal No. K-1635/2014 Pepsi Cola Export Corporation, Karachi v. Directorate General of Post Clearance Audit and 2 others.

(xii)Appeal No. K-1029/2016 Messrs M.R. Sons, Karachi v. Directorate General of Intelligence and Investigations-FBR.

(xiii) Appeal No. K-1030/2016 Messrs Muhammad Imran, Karachi v. Directorate General of Intelligence and Investigations-FBR.

(xiv) Appeal No. K-1343/2015 Messrs Rightway Trading Company, Karachi v. Deputy Collector of Customs, MCC of Appraisement-West and 3 others

(xv)2016 PTD (Trib.) 2463 Messrs Zubair Wali Ahmed Zai Ltd. v. The Principal Appraiser, Directorate of Transit Trade and others.

(xvi) 2017 PTD (Trib.) 481 Singer Pakistan Ltd. v. Collector of Customs and 2 others.

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

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

I, therefore hold in the light of the law laid down in the referred in above and cases reported at that the exercise of jurisdiction on this point by Respondent No. 3 is without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of Order-in-Original are ab-initio void and as such coram non judice on this point also. The issue No. (v) answered in negative.

14.That as regards to issue No. (vi), upon passing of assessment order under Section 80 and Rule 438 of the Act/Rules on 25.01.2016, by the authority defined in section 2(a) of the Act and Serial No. 30 of SRO. 371(I)/2001 dated 15.06.2001, it cannot be disturbed by any authority for preparing contravention report overlapping 1st assessment order dated 14.12.2015, for initiation of adjudication proceeding, on the basis of which Respondent No. 3 issued show-cause notice and passed order-in-original. The only course available under law for Respondent No. 1 was to challenge the assessment order dated 25.01.2016 before respondent No. 4 under section 193 of the Act in exercise of the powers delegated upon him. In the filed appeal, Respondent No. 1 is empowered to incorporate all the apprehension, misreading of the facts and contravention of the provision of the Act/Rules. The respondent No. 4, upon receipt of the appeal and going through the facts and grounds if thinks fit that the contention of the Respondent No. 1 seems to be correct and the duty and taxes have not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show-cause notice to the importer (appellant) under the provision of Section 32 as expressed in 3rd proviso to the subsection (3) of Section 193A of the Act. Instead of the adhering the prescribed method available in the Act the Respondent No. 1 reopened the assessment/ clearance order under Section 195 of the Act under which no powers are vested either of the Respondents i.e. 1 and 3. When the right of appeal has been accorded by the legislature in the provision of Section 193 of the Act, the provision of Section 195 is un-operational and cannot be exercised even by the authority defined therein and this has been validated by the Hon'ble High Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that "department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal)---1st order in original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set-aside and Constitution Petition was allowed." The CPLA No.105-K of 2014 filed by Collector of Customs and others against the order of the High Court has been dismissed by the Hon'ble Supreme Court of Pakistan while refusing leave to appeal. It is also settled proposition of law that in the presence of an appealable order, fresh order cannot be passed even in the shape of reassessment order or through issuance of show-cause notice under section 180, while exercising powers under the provision of Section 179 ibid. These acts are piling upon multiple orders on the existing appealable order not permitted under law as held by Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 Messrs Smith Kline French v. Pakistan that "once an order is passed, which attain finality the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order". By virtue of non filing of appeal against the assessment order dated 14.12.2015 as elaborated above by Respondent No. 1 on or before 24.02.2016. The transaction stood passed and closed and attained finality and cannot be disturbed. For reaching at the decision I have gained strength from the reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue, wherein their lordship of High Court held that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that has attained finality, under the Sea Customs Act, 1878 and against which suo motu revision. Notwithstanding, the act of issuance of show-cause notice and passing of order-in-original by Respondent No. 3 also falls under the ambit of "double jeopardy" not permitted under Article 13 of the Constitution of Islamic Republic of Pakistan. Rendering the order dated 21.04.2016 passed by Respondent No. 3 for piling upon an existing appealable order are without lawful authority and jurisdiction and as such void and ab-initio and of no legal effect. The issue No. (vi) is answered in negative.

15.That as regards to issue No. (vii), while passing Order-in-Original/Appeal, it is mandated upon the Adjudicating/Appellate Authority to examine the charter of show-cause notice and remain within its ambit. In case orders so passed are beyond the charter of the show-cause notice, these are deems to be illegal and the Appellate Tribunal is left with no other option except to declare it suffering from legal infirmity and as such void. While examining orders passed by Respondents Nos. 3 and 4, I have noted with concern that Respondent No. 3 has made reference to Section 187 of Customs Act, 1969 i.e. " the burden of proof therefore lies on importer in terms of Section 187 of the Customs Act, 1969 to prove the goods have been imported from China or having China origin" has been made and in sub-para (viii) of para 4 of ONO reading as "Indian transport documents of TICC (Annexed-E3 Memon Chamber of Mumbay's Certificate of Origin Annexed E-4), Receipt Note Invoice and Packing list and in para (ix) of para 4 he declared less value of goods as about US$. 3/kg against actual value of US$. 10/kg and in Sub-para (x) The above documents also transpired that the fabric was actually imported from JNPT Mumbai by Sea port and dumped in Dubai and then transshipped to Pakistan" and in para 2 of page 11 of ONO. Reference to "Sections 2(37) and 33 of the Sales Tax Act, 1990 and Section 182(5) of the Income Tax Ordinance, 2001". Likewise, Respondent No. 4 in its order inscribed "The shipment was supposed to be made from China by Messrs Shoaxing Changfang Textile Co. The payment mode is through telegraphic transfer directly to a UAE based account. This is not a registered contract, neither authenticated by any authority in Pakistan, UAE or China. At the outset it is noted, at Sr. No. 3 of Import Policy order. Subsequently the invoice and packing list are issued on the designated suppliers letters head which does not have a phone number or email or website. The certificate of origin stating the goods to be of China origin issued on the declaration by an exporter who is a different entity viz, Shenzene Huadingxing import and export Co." and has made reference to the contract, telephonic transfer and serial No. 3 of the Import Policy Order and FTA etc., These narration/grounds are not available in the show-cause notice. This confirms that order has been passed outside the charter of show-cause notice. Such type of the orders are always declared being passed without any lawful authority. Reference is placed on reported judgments Collector Excise and Land Customs and others v. Rehm Din reported at 1987 SCMR 1840 and Adam v. Collector of Customs, Karachi PLD 1969 SC 446, Muhammad Sadqain v. Collector of Customs (Appraisement) 2006 PTD 2742 and Messrs Exide Pakistan Ltd. v. Deputy Collector of Customs (Adjudication-III), Karachi, 2004 PTD 1449, "wherein it has been held that "Order of adjudication, being ultimately based on a ground which was mentioned in the show-cause notice is palpably illegal on the face of it". The issue No. (vii) is answered in negative.

16.That as regard to issue No. (viii). Reliance by Respondent No. 3 on Section 187 of the Act in the order is out of context by virtue of the fact that under the said section the burden of proof lays upon the person who is in possession of smuggled goods falling under Section 2(s) of the Act. No charge of smuggling has been levelled in the show-cause notice, which is tantamount to admission by the Respondents that the goods imported by the Appellant are not smuggled, instead importable and for that reason assessment order for levy of duty and taxes was passed by the authority defined in S.R.O. 371(I)/2002 dated 15.06.2002 under Section 80 and Rule 438 and so the clearance order under Section 83 and Rule 442 of the Act/Rules. When the Appellant submitted the B/L confirming the shipment arrived from the port of China and CCS module accepted the GD, on the strength of filed manifest by the shipping company under Section 45 of the Act. This also stood validated from the certificate of origin which confirms the goods of China origin. With this the burden laid upon Appellant stood discharged and stands shifted on the shoulders of the Respondents Nos. 1 and 3, which they tried to discharge by stating that "the data of transit GD of Dubai (showing 458 (pkgs) in 02 containers when crossed checked with GD No. KEOW-HC-103545 and 46, B/L showing same figure except port of origin and value", as per the version of the Respondent these packages were shipped by Messrs Supreme India Impex Ltd., Surat, Gujarat, India to Messrs Al-Malik Textile and Readymade Garments Co. LLC, Dubai, UAE, origin of which is confirmed by Memon Chamber of Commerce. No relation has been proved by the Respondent between Messrs Al-Malik Textile and Readymade Garments Co. LLC, Dubai, UAE and the Appellant and the validity of Memon Chamber of Commerce that as to whether it has been established and operating under the valid authorization of Ministry of Commerce of India. Upon examination of the certificate of origin issued by Memon Chamber of Commerce, it is evident that it does not had the validation of Government of India, any authorization by it is without lawful authority, even otherwise the certificate in question is confirming the origin of the goods shipped to Messrs Al-Malik Textile and Readymade Garments Co. LLC, Dubai, UAE not to the appellant, rendering it invalid and as such ab-initio void. For proving the charge levelled in the show-cause notice it is mandated upon the respondents to substantiate through tangible incriminating valid evidence that Messrs Al-Malik Textile and Readymade Garments Co. LLC, Dubai, UAE, is sister concern of the Appellant and it imported the goods for him for onward shipment to Pakistan. Nothing in this regards has been available in the show-cause notice or Order-in-Original/Appeal, nor any incriminating evidence has been placed on record of the Tribunal. Resultant, Respondents miserably failed to discharge burden of proof laid under Articles 117 and 121 of Qanun-e Shahadat Order 1984 and the law laid down by the Superior Judicial Fora in reported judgments PLD 1975 Kar. 458, PLD (sic) Kar. 659, PLD 1965 Lah. 576 1969 SCMR 708, 1992 SCMR 1083, PLD 1996 Karachi 68, 2016 PTD 582. I, therefore, hold that the entire case has been made on the basis of no evidence and as such of no legal effect as held in reported judgment 1991 PTD 551 that "Any action which is based upon no evidence is not permitted by law " and in 2006 PTD 2190 = 2006 PCr.LJ 1427 that " a mere assertion of the prosecution is no evidence" and the whole case is being made out on the basis of conjectures and fishing inquiries which is not permitted under law as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1992 Supreme Court 485, The Assistant Director Intelligence and Investigation v. B.R. Herman Mohattas (Pvt.) Ltd., Karachi that "it cannot make a rowing or fishing inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality". The said principle was subsequently held by the Superior Judicial Fora in reported judgment (1957) 32 ITR 89, (1967) 64 ITR 516, I.T.As. 2400/2401/KB/91-92, 1995 PTD (Trib.) 580, 1995 PTD (Trib.) 1152, (1982) 1381 ITR 742, 1993 PTD 206,1997 PTD (Trib.) 2209 and 2013 PTD (Trib.) 353. The issue No. (viii) is answered in negative.

17.That as regards to issue No. (ix). For lending decision on this issue I have scrupulously examined the Import Policy Order, 2013-2015 and failed to find any Rule or Appendix, wherein import of Chinese goods through a buying house operating in UAE or any other part of the world is banned/prohibited or restricted and this is due to the fact that in the modern era the world is a global village and buyers negotiate with the Trading Houses operating in different countries specifically, in Hong Kong, Singapore and UAE and place order with them for supply of goods of the specification desired by them of Chinese or any other countries origin, instead of placing order directly to the manufacturer of that country, in order to save them from shipment of erroneous goods i.e. not in accordance with the specification desired by them and timely shipment beside elimination of commission of fraud by the shippers. The importers are free to procure the goods of any origin from the Trading House of their choice. The lone condition attached to these types of shipments is submission of Certificate of Origin of the country of manufacture/shipment in terms of Rules of Origin notified by the Ministry of Commerce vide No. 2(13)71-GATT dated 27.02.1973. The issue No. (ix) is answered in negative.

18.That as regard to issue No. (x). Rule 2 of Rules of Origin notified by the Ministry of Commerce vide No. 2(13)71-GATT dated 27.02.1973 inscribe that the goods which are shipped directly to the country of import are deems to be of the origin of the country of shipment. From perusal of B/L it is established with clarity that the goods were shipped directly from the port of China namely "Ningbo" to Karachi and this fact further stood verified from the certificate of origin of the People Republic of China bearing No. 16C 4401A1125/00266 dated 11.01.2016 issued under Rules 16 and 17 of Rules of Origin, 1973, containing endorsement of shipped packages of the consignment, HS Code and the declaration of the exporter given in Serial No. 11 confirming origin of manufacturing reading as "the undersigned hereby declared that the above detail and statement are correct that all the goods were produced in China and that they comply with the Rules of origin of the People Republic of China." This certificate has the validation of online verification of the China Council for the Promotion of International Trade Internet Authentication Centre available in case file on page 123 as Exhibit "AI". Veracity of these have not been disputed by all the respondents, with the exception of Respondent No. 4, who in its order opined that the certificate of origin is in the name of different entity viz, Shenzene Haudingxing Imports and Exports Co. Ltd. Needless to say that Messrs Shenzene Haudingxing Imports and Exports Co. Ltd. is the manufacturer and obtained the certificate of origin on behalf of (O/B) the exporter namely Messrs Shoaxing Changfang Textile Co. Ltd., China as evident from column 1 of Certificate of Origin, 2nd line of which read as O/B M/s. Shoaxing Changfang Textile Co. Ltd. Similarly, the opinion of Respondent No. 4 that the certificate of origin have been issued after two months of the shipment of the goods and one month after filing of GD is also of no substance as the Appellant asked the exporter to provide that, for overruling the objection of Respondent No. 1 of treating his goods as of Indian Origin as against China. Even otherwise certificate of origin could obtained any time either immediately after shipment or belated stage, its veracity has to be proved contrary, which Respondent No. 4 failed miserably despite mandated upon him in terms of Articles 117 and 121 of Qanun-e-Shahadat. The certificate of origin is a fundamental document as per the expression of Rule of Origin 1973 for the determination of the origin of the imported goods, which is available in the instant case and so the verification. The Appellate Tribunal in Customs Appeal No. K-111/2005, Ali Enterprises v. Collector of Customs, determined the origin of goods on the basis of certificate of origin, which was later on validated by Hon'ble High Court of Sindh vide order dated 19.12.2005 and has been reported at 2006 PTD 651. In a case having similar fact the Hon'ble Supreme Court of Pakistan in reported judgment 2006 PTD 2177 Messrs Trader, Quetta v. Customs, Excise and Sales Tax Appellate Tribunal, held that "certificate of origin issued by the authority duly authorized by the exporting country is valid piece of documents for determination of origin". Hence, I hold that the goods imported by the Appellant are of "China Origin" without any exception. The issue No. (x) is answered in affirmative.

19.That as regard to issue No. (xi), I have examined the exhibits "AJ" to "AL2" available at pages 124 to 138 of memo. of appeal and those confirm that the goods akin to Appellant arrived at Dubai in transit, which were subsequently shipped to Pakistan and which were cleared against GD Nos. KPPI-HC-51139 dated 12.03.2016 KAPE-HC-124231 dated 12.03.2016, KPPI-HC-53094-22032016, KAPE-HC-130741-26032016, KPPI-HC-54805-31032016, KPPI-HC-54822-31032016, KPPI-HC-51141 dated 12.03.2016 and KAPE-124231-12.03.2016 by the Clearance Collectorate of Karachi without framing contravention reports for misdeclaration falling under Sections 32 or 32A of the Act or importability. Non negating the stance of the Appellant and the veracity of the GD's is tantamount to admission by the respondents. This act of theirs also confirms that respondents gave a differential treatment to the Appellant not permitted under Articles 4 and 25 and even Article 18 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial Fora 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 Art. 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 donot--- What however, is prohibited under principle of reasonable classification, is legislation favoring some within a class and unduly burdening others---Basic rule for exercise of such discretion and reasonable classification is that all persons placed in similar circumstances must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not offend spirit of Art. 25 of the Constitution."

The issue No. (xi) is answered in affirmative.

20.What have been adumbrated here in above, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio decidendi adopted by the Tribunal in similar nature of cases, I, hereby vacate the impugned show-cause notice, and set aside the orders passed by the forum below being illegal, void and ab-initio, appeal is accordingly allowed.

21.The judgment is passed and announced accordingly.

SA/81/Tax(Trib.)Appeal accepted.