HASSAN INTERNATIONAL, FAISALABAD VS The DIRECTORATE GENERAL OF INVESTIGATION AND INTELLIGENCE-F.B.R., KARACHI
2019 P T D (Trib.) 1129
[Customs Appellate Tribunal]
Before Jahanzaib Wahlah, Member (Judicial-III)
Messrs HASSAN INTERNATIONAL, FAISALABAD
Versus
The DIRECTORATE GENERAL OF INVESTIGATION AND INTELLIGENCE-F.B.R., KARACHI and 3 others
Custom Appeal No. K-250 of 2018, decided on 20/12/2018.
(a) Customs Act (IV of 1969)---
----Ss. 186, 83 & 2(s)---Misdeclaration---Smuggling---Scope---Detention of goods pending payment of fine and penalty---Clearance of goods for home consumption---Directorate General of Intelligence and Investigation detained the goods of appellant at the exit gate after their release by Clearance Collectorate and charged the importer for mis-declaration---Validity---Section 186 of Customs Act, 1969 came into play if any case had been adjudicated by competent authority against importer through which it had been held that the charges were established as levelled in the show-cause notice and fine and penalty was imposed and the importer had not paid the some or any inquiry or that investigation in respect of any goods was underway and imposition of penalty was under consideration---Appropriate officer was empowered to detain the forthcoming goods of the same importer till the time fine and penalty was not paid---Lawfully cleared goods could not be detained under any pretext by any officer of customs, as regard to the officials of Directorate General of Intelligence and Investigation, they could detain the goods which were either "smuggled" or detained goods of the person involved in smuggling but not imported goods---Power to detain imported goods under the provision of S.186, Customs Act, 1969 was only available to the officials of Clearance Collectorate upon availability of either of two conditions available in subsection (1) of S. 186, Customs Act, 1969---Detention of goods of importer was not permitted even by the officials of Clearance Collectorate in the absence of availability of any of the said two conditions---Detention of goods by Directorate General of Intelligence and Investigation was held to be without lawful authority and jurisdiction---Appeal was allowed.
Amir Siddiqui v. Federation of Pakistan and 3 others 2014 PTD 582 and Messrs O.S. Corporation v. FOPandothers2015PTD560rel.
(b) Customs Act (IV of 1969)---
----Ss. 3A, 177, 9, 10, 80, 83, 186, 168(1) & 2(s)---Customs Rules, 2001, Rr. 438 & 442---SRO No. 486(I)/2007 dated 9-6-2007---SRO No. 118(I)/83 dated 12-12-1983---Detention of goods pending payment of fine and penalty---Seizure of things liable to confiscation---Clearance of goods---Assessment of goods---Restriction on possession of goods in certain areas---Scope---Directorate General of Intelligence and Investigation detained the goods of appellant at the exit gate after their release by Clearance Collectorate and charged the importer for mis-declaration---Plea of Directorate General of Intelligence and Investigation was that, Directorate being watchdog of revenue division, it was empowered to detain, seize any consignment cleared by Clearance Collectorate, in case of mis-declaration of description, quantity, quality, weight, PCT, erroneous/non-application of valuation ruling and allowance of exemption---Validity---Officers of Directorate General of Intelligence and Investigation had power within the territory of Pakistan to thwart the act of "smuggling"---Jurisdiction of officers of Directorate General of Intelligence and Investigation in principle was restricted to the territory not falling within the ambit of Ss.9 & 10 of Customs Act, 1969 and beyond five kilometers of the border of India and Iran---Goods of importer were not brought into Pakistan from any other route, instead were brought from the defined port after completion of all codal formalities i.e. passing of assessment and clearance order---Consignment of importer stood ousted from the definition of "smuggled" goods and could not be detained under the provision of S. 186, Customs Act, 1969---Directorate General of Intelligence and Investigation could only initiate proceedings for the act of smuggling, which could not be invoked against any importer in case of evasion/short payment of duty and taxes on cleared goods---Detention of goods, in the present case, by Directorate General of Intelligence and Investigation and subsequent proceedings were held to be of no legal effect, as such void ab initio and coram non judice---Appeal was allowed.
2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; PLD 1996 Kar. 68; 2006 PTD 978 and PLD 1971 SC 184 ref.
(c) Customs Act (IV of 1969)---
----Ss. 3A, 3DD, 26 & 26A---SRO No.500(I)/2009 dated 13-6-2009---Directorate General of Intelligence and Investigation---Directorate General of Post Clearance Audit---Powers and jurisdiction---Scope---Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate and charged the importer for mis-declaration---Validity---Officials of Directorate General of Intelligence and Investigation assumed the powers of officials of Directorate General of Post Clearance Audit and conducted post clearance audit of goods declaration of importer in the absence of availability of powers---Officials of Directorate General of Intelligence and Investigation were not permitted under the law to transgress the jurisdiction/powers of Directorate General of Post Clearance Audit---Post Clearance Audit conducted by officials of Directorate General of Intelligence and Investigation was held to be without jurisdiction---Appeal was allowed.
(d) Customs Act (IV of 1969)---
----Ss. 195, 3A, 194A, 32, 25, 25A, 79, 80, 83 & 180---Customs Rules, 2001, Rr. 438 & 442---Powers of Federal Board of Revenue or Collector of Customs to pass certain orders---Mis-declaration---Determination of customs value---Goods declaration---Assessment of goods---Clearance of goods---Show cause notice---Scope---Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate and charged the importer for mis-declaration---Validity---Section 195, Customs Act, 1969 empowered the Collector of Customs or Federal Board of Revenue (Board) to call for record of any order/decision passed by subordinate officer for determination of their legality or propriety, in case any illegality or impropriety was apparent, said authorities were empowered to re-open the same and pass a fresh order may deem fit after issuance of show-cause notice---Order passed by Collector or Board was appealable before Appellate Tribunal---Officials of Directorate General of Intelligence and Investigation were not empowered to initiate action of detention and seizure of importedgoodsforevasionorshortpaymentofdutyandtaxes,asthatwould tantamount to reopening of assessment order under S.195, Customs Act, 1969---Detention of goods by Directorate General of Intelligence and Investigation and subsequent proceedings were held to be of no legal effect, as such void ab initio---Appeal was allowed.
2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; PLD 1996 Kar. 68; 2006 PTD 978 and PLD 1971 SC 184 ref.
(e) Administration of justice---
----Jurisdiction---Nobody is allowed to act beyond the scope of allotted sphere of jurisdiction and powers.
2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; PLD 1996 Kar. 68; 2006 PTD 978 and PLD 1971 SC 184 ref.
(f) Customs Act (IV of 1969)---
----S. 3A---Sales Tax Act (VII of 1990), S.30A---Income Tax Ordinance (XLIX of 2001), S. 230---SRO No. 776(I)/2011 dated 19-8-2011---Directorate General of Intelligence and Investigation---Jurisdiction---Scope---Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate; charged the importer for mis-declaration and created recovery of duty, income tax and sales tax---Validity---Officials of Directorate General of Intelligence and Investigation were not appointed as officers of Inland Revenue therefore entire act of preparation of contravention report in the matter relating to sales tax and income tax was without power and jurisdiction, as such coram non judice---Appeal was allowed.
Waseem Ahmed and others v. FOP and another 2014 PTD 1733 rel.
(g) Customs Act (IV of 1969)---
----S. 180---Sales Tax Act (VII of 1990), Ss. 3, 6, 7, 33 & 34---Income Tax Ordinance (XLIX of 2001), S. 148---Determination of sales tax liability---Jurisdiction---Show-cause notice---Time and manner of payment of sales tax---Offences and penalties---Default surcharge---Collection of income tax at import stage---Scope---Section 3, Sales Tax Act, 1990, being a charging section cannot be invoked by any Authority other than an officer of Inland Revenue---Section 6 of the said Act is a machinery section that lays down the procedure relating to collection of sales tax at import stage while S.7 lays down about determination of sales tax liability at the time of filing sales tax return, thus a machinery section---Section 33 of Sales Tax Act, 1990 contains penal clauses synonymous to S.156(1) of Customs Act, 1969---Section 34 of Sales Tax Act, 1990 deals with default surcharge to be paid upon contravention and establishment of charge---Section 148, Income Tax Ordinance, 2001 prescribes the procedure for collection of income tax at import stage by the authorities referred therein---Said sections are independent under which no charge can be invoked---No show-cause notice can be issued under aforesaid sections which are independent and have no nexus with each other---Issuance of show-cause notice while invoking irrelevant/erroneous provisions renders the same void ab initio and of no legal effect.
Assistant 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. Additional Collector 2002 MLD 180; State Cement v. Collector PTCL 2001 CL 558; Kashmir Sugar v. Collector 1992 SCMR 1898 andRose Color v. Chairman, CBR 2013 PTD 813 ref.
(h) Customs Act (IV of 1969)---
----Ss. 32, 179 & 202---Sales Tax Act (VII of 1990), Ss. 11, 30 & 48---Income Tax Ordinance (XLIX of 2001), Ss. 148, 162, 228 & 140---Mis-declaration---Power of adjudication---Short recovery of income tax and sales tax---Jurisdiction---Scope---Assessment of sales tax---Recovery of arrears of sales tax---Recovery of income tax from persons holding money on behalf of a taxpayer---Collection of income tax at import stage---Recovery of income tax from the one from whom tax was not collected or deducted---Internal audit of income tax---Scope---Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate---Deputy Collector of Customs (Adjudication) issued show-cause notice and passed order-in-original---Appeal filed against order-in-original was dismissed---Plea of department was that incorporation of word "taxes" in Ss. 32 & 179, Customs Act, 1969 was sufficient for creating recovery of sales tax and income tax---Validity---Existence of word "taxes" in S.32 of Customs Act, 1969 did not empower the Deputy Collector of Customs (Adjudication) to assume powers under the provisions of S.11(2) & (3) of Sales Tax Act, 1990 and S. 162(1) of Income Tax Ordinance, 2001---Deputy Collector of Customs (Adjudication) could not invoke said sections---Word "taxes" in Ss.179 & 32 of Customs Act, 1969 was only for assuming powers on the basis of involved amount of duty and taxes by appropriate adjudicating authority---Despite existence of word "taxes" in both the Ss.179 & 32 of the Customs Act, 1969, adjudicating authority had to issue show-cause notice within the respective applicable provisions of Customs Act, 1969 only---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 S.48, Sales Tax Act,1990andS. 140,IncomeTaxOrdinance,2001buthadnopowers to adjudicate the cases of short recovery of sales tax andincometax---Show-causenoticeissuedbyDeputyCollectorofCustoms (Adjudication) was held to be void and of no legal effect.
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 02 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 Customs2016 PTD (Trib.) 1008; Al-Fajer Associates v. Directorate General of Intelligence and Investigations-FBR 2016 PTD (Trib.) 2125; Pepsi Cola Export Corporation, Karachi v. Directorate General of Post Clearance Audit and 02 others Appeal No. 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 2018 PTD (Trib.) 1318; 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 and 2005 PTD 23 ref.
Collector of Sales Tax and Federal Excise v. Messrs Qasim International Container Terminal Pakistan Ltd. 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 rel.
(i) Customs Act (IV of 1969)---
----Ss. 80, 193, 193A & 180---Customs Rules, 2001, R. 438---Constitution of Pakistan, Art. 13---SRO No. 486(I)/2007 dated 9.6.2007---Assessment of imported goods---Appeal to Collector (Appeals)---Procedure in appeal---Show-cause notice---Double jeopardy---Scope---Assessment order passed by competent authority, cannot be disturbed by any authority by preparing contravention report and overlapping the existing assessment order for initiation of adjudication proceedings---Only course available before Customs authorities is to challenge the assessment order before Collector of Customs (Appeals)---Customs authorities are entitled to incorporate all apprehensions, misreading of facts and contravention of provisions in appeal---Collector of Customs (Appeals), if considers that duty and taxes have been either not levied or short paid on the basis of goods found subsequent to clearance, is empowered to issue showcause notice---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---Passing of assessment order in such a way falls within the ambit of "double jeopardy" not permitted under Art. 13 of the Constitution.
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)---
----Ss. 195 & 193---Power of Federal Board of Revenue (Board) or Collector to suo motu pass orders---Appeal to Collector (Appeals)---Scope---When the right of appeal has been accorded by legislature under the provision of S.193, Customs Act, 1969 the provision of S.195 of said Act is un-operational and cannot be exercised even by the Authority defined therein.
Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division 2014 PTD 1256 and Collector of Customs and others' case C.P.L.A. No.105-K of 2014fol.
(k) Customs Act (IV of 1969)---
----Ss. 79(1), 180, 80, 83 & 198---Customs Rules, 2001, Rr. 435, 438 & 442---Declaration---Show-cause notice---Examination, assessment and clearance of goods---Scope---Section 79(1), Customs Act, 1969 cannot be invoked in the show-cause notice particularly when the goods were selected for examination and were released after passing valid assessment/clearance order.
(l) Customs Act (IV of 1969)---
----Ss. 79(1), 2(kka), 45 & 180---Declaration---Documents---Shipping bill of exporting country---Import general manifest---Show-cause notice---Scope---Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate---Deputy Collector of Customs (Adjudication) issued show-cause notice on the basis of shipping bill of the exporting country and passed order-in-original---Appeal against order-in-original was dismissed---Validity---Documents warranted for filing/transmitting goods declaration under the provision of S.79(1), Customs Act, 1969 are commercial invoice, packing list, bill of lading or air way bill or documents used for customs clearance, whether or not signed, initialed or otherwise authenticated, which are contract, pro forma invoice, letter of credit, certificate of origin, health certificate, free trade area certificate or akin documents---Shipping bill filed by the shipper at the port of loading or the value available on the website of foreign country's customs figure nowhere in the definition of documents available in S.2(kka), Customs Act, 1969---Shipping bill of exporting country was not warranted for filing import general manifest under S. 45, Customs Act, 1969---Contents of shipping bill filed by the exporter at the port of shipment with country of export could not be deemed to be construed as an "information" or "document" under Customs Act, 1969 for framing of contravention report and issuance of show-cause notice---Reliance on exporting country's shipping bill was held to be misconceived, suffered from legal infirmity and could not be made a tool for penalizing the importer---Appeal was allowed.
(m) Customs Act (IV of 1969)---
----Ss. 32A & 79(1)---Customs Rules, 2001, R. 433---Declaration---Fiscal fraud---Scope---Directorate General of Intelligence and Investigation detained the goods of importer at the exit gate after their release by Clearance Collectorate---Deputy Collector of Customs (Adjudication)issuedshow-causenoticeonthebasisofshippingbillof the exporting country, charged importer for fiscal fraud and passed order-in-original---Appeal filed against order-in-original was dismissed---Validity---Invocation of S.32A, Customs Act, 1969 by the Deputy Collector of Customs (Adjudication) was illegal and void as no document had been uploaded by importer in the goods declaration, which was concocted, altered, mutilated, false, forged, tampered or counterfeit---Clauses (b) and (c) of S.32A, Customs Act, 1969 were irrelevant as importer never gave any information electronically or by any other means corresponding to shipping bill of exporting country referred in the show-cause notice---Section 32A(d), Customs Act, 1969 did not apply as importer never altered, mutilated or suppressed any finding of any customs functionaries or any document in the computerized record---Section 32A(e), Customs Act, 1969 was irrelevant as no attempt, abetment or connivance in any action mentioned in said provisions was committed by importer---Show-cause notice issued by invoking irrelevant provisions was held to have been issued without lawful authority and was declared as void ab initio---Appeal was allowed.
1991 PTD 551 and 2006 PTD 2190 = 2006 PCr.LJ 1427 rel.
(n) Customs Act (IV of 1969)---
----S. 193A---Procedure in appeal---Extension of time by Federal Board of Revenue (Board) after lapse of 120 days---Scope---Collector of Customs had to pass order within a period of 120 days from the date of receipt of appeal---Appeal was filed by appellant on 16-12-2016, and an order had to be passed on or before 15-4-2017---No extension was granted by Collector prior to lapse of initial period due to the fact that no "exceptional circumstances" were available---Collector, for validating the delay in passing order, placed reliance on extension granted by Board which was nothing more than giving a lease of life---Matter could not be revived even through artificial support when the issue was liable to be annuled---Order passed by Collector of Customs (Appeals) was barred by 221 days, hence void ab initio and not enforceable under law.
Khalid Mahmood v. Collector of Customs 2009 SCMR 1881; 2017 PTD 1756; Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Deen and Sons and others 2017 SCMR 1427; 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.
(o) General Clauses Act (X of 1897)---
----S. 24A---Reasons for decision---Scope---Where any Authority, Court or Tribunal gave a finding of fact which was not based on material available on record the same became perverse and a perverse finding of fact, which was violative of the established principles of appreciation of evidence on record, was not sustainable in law---Every judicial or quasi-judicial finding was to be based on reasons containing the justification for the finding in the order itself.
2005 YLR 1019; 2007 PTD 2500; 2004 PTD 1973; 2005 YLR 1719; 2003 PTD 777; 2003 PTD (Trib.) 2369; 2002 MLD 357; 1983 CLC 2882; 2005 PTD 2519; 2005 PTD 1189; PLD 1995 SC (Pak) 272; PLD 1970 SC 158; PLD 1970 SC 173; 1984 SCMR 1014; 2012 PTD (Trib.) 619 and 2016 PTD 589 ref.
Nadeem Ahmed Mirza (Consultant) for Appellant.
Rasheed Alam (Deputy Superintendent) for Respondents.
Date of hearing: 19th November, 2018.
ORDER
JEHANZAIB WAHLAH, MEMBER (JUDICIAL-III).---Through this order, I intend to dispose off Appeal No. K-250/2018 directed against the Order-in-Appeal No. 813/2018 dated 22.11.2017 passed by Collector of Customs, Appeals, Karachi (Respondent No. 4) maintaining the Order-in-Original No. 321/2016-17 dated 17.11.2016 passed by Deputy Collector of Customs, Adjudication-I, Custom House, Karachi.
2.Briefly facts of the lis are, the appellant imported a consignment of 23000 kgs of Asaliya Seed @ US$. 0.18/kg C&F Karachi from Messrs Ahmed Overseas Junagarh, Gujarat, India against invoice No. 57 dated 19.08.2016 and B/L No. IN80662505 dated 30.08.2016. Upon receipt of import documents, appellant prepared I-Form and submitted with his bank, who after obtaining permission from the State Bank of Pakistan approved that and uploaded the same in the reservoir of Custom Computerized System (CCS). Consequent to which appellant transmitted Goods Declaration (GD) with the MCC of PMBQ under the provision of Section 79(1) of the Customs Act, 1969. (Act) and Rule 433 of Custom Rules, 2001 and as per pre-requisite deposited upfront duty and taxes of Rs. 141,119.00 on 05.09.2016, which resulted in numbering of GD as KPPI-HC-14367 dated 05.09.2016. The Assessing Officer upon appearance of GD on his work station opted to get the goods examined in terms of the expressions of Section 198 and Rule 435 of the Act/Rules prior to passing of assessment order under the provision of section 80 and Rule 438 of the Act/Rules. To proceed with adduced his opinion/reasoning and transmitted the GD on the work station of the Deputy Collector of Customs, Group-I, MCC of PMBQ (respondent No. 2), who gave his assent and transmitted the GD to the Deputy Collector Examination, QICT, who onward marked that to the examiner of his choice in accordance with the selection criteria, who carried out the examination in accordance with the Examination Manual, 1996 in compliance of the order of the Board incorporated in para 5 of CGO 12/ 2002 dated 15.06.2002 and found the goods as per declaration in all aspect i.e. description, quality, quantity and weight and report so prepared was uploaded in the reservoir of GD reading as "Examined the goods on the basis of GD/DAT retrieved to WeBOC system: description: Asaliya Seeds packed in p.p. bags . each bag net weight 25 kgs . checked weight 100% vide QICT receipt No. 3571149 dated 05/SEP/2016, found weight 22860 kgs . group to check pro Certificate, PCT, value and all other aspects. Images are attached." Upon receipt of examination report on his work station the competent authority defined in Section 2(a) of the Act transmitted view message under Rule 437 for uploading of Release Order of Plant Protection Department, which appellant complied with and the authority in exercise of the powers vested upon him through SRO 371(I)/ 2002 dated 15.06.2002 passed assessment order under the aforesaid sections/rule on the declared description and PCT with the exception of unit value, which he enhanced by US$. 0.2/kg i.e. @ US$.0.20 and transmitted view message for payment of additional amount of duty and taxes of Rs. 29,675.00, which he paid on 09.09.2016, consequent to which the inbuilt authority of CCS passed Clearance Order under the provision of Section 83 and Rule 442 of the Act/Rules. That after receipt of release order passed by the subordinate of respondent No. 2, wherein gate staff was intimated about the said fact and so the terminal operator, appellant representative after obtaining the delivery order from the shipping company approached the terminal operator for payment of demurrage/storage charges, official of which showed his inability to provide that on the plea that the officials of Directorate General of Intelligence and Investigation-FBR (Enforcement-Wing), Karachi (respondent No. 1) has put an hold on the GD/detained the consignment under Section 186 of the Act. The appellant representative upon knowing the said fact approached the official of respondent No. 1, who informed that it is their hunch that the value declared by the appellant is not correct as the value declared by the exporter of India in the Shipping Bill No. 9563019 dated 20.08.2016 available on the official website of Indian Customs www.icegate.gov.in is in contradiction of the declared value i.e. INR1902504/- (US$.25804.00, which is excess by US$. 21204.00, as against declared US$. 4,140.00 and assessed US$. 4,600.00. the Official of respondent No. 1 subsequently seized the goods under the provision of Section 168(1) of the Act and served notice on the appellant under Section 171 ibid and established FIR C. No. PQ-222/DGI/Hassan Intl/2016 dated 30.09.2016 with the facts/allegation narrated in the FIR, which instrumental in causing anticipated loss to the exchequer to the tune of Rs. 894,210.00 attracting the provision of Sections 25, 32(1), 2, 32A and 79(I) of the Act, Section 3, 6, 7A, 33 and 34 of the Sales Tax Act, 1990 (S.T.A.) and Section 148 of the Income Tax Ordinance, 2001 (ITO) punishable under clauses (14) and (14A) of Section 156(1) of the Act and aforesaid sections of the S.T.A. and I.T.O. The official of the respondent No. 1 thereafter framed contravention report and forwarded to Collector of Customs, Adjudication-1, who marked the same to respondent No. 3, who issued show-cause notice dated 26.10.2016 containing the same facts and contravening provisions and penal clauses of the Act, S.T.A. and I.T.O. to the appellant, the advocate replied to that, which failed to impress respondent No. 3 and she passed order vide dated 17.11.2016, through which she held the charges as levelled in the show-cause notice as established and ordered confiscation of the goods subject to redemption of those upon payment of redemption fine equivalent to 35% i.e. Rs. 969,381.00, imposed penalty of Rs. 100,000.00 in addition to alleged evaded/short paid amount of Rs. 894,210.00.Operativeparaoftheorderisreproducedhere-in-under:
"I have gone through the record of the case verbal and written submission of the department. The Directorate alleged that the relevant Bill of lading No.IN80662505 dated 19.08.2016 issued by shipping Company M/s. CMA CGM, Mumbai (India) revealed that the consignment was exported from Mundra, India against invoice No. 57 dated 19.08.2016. However, the relevant shipping Bill No., which is normally indicated on the B/L from shipment from India, was not indicated thereon. Hence, further probe was necessitated. Accordingly, the shipping company, M/s. CMA CGM Pakistan (Pvt) Ltd., Karachi was requested vide Directorate's letter C.No. PQ-221/DCI/Misc/2016 dated 26.09.2016 to supply relevant Goods Declaration (Shipping Bill filed by the Indian Importers with the Indian Customs for shipment of the under reference consignment from Mundra Port destined to Karachi vide aforesaid bill of lading. In response, M/s. CMA CGM Pakistan (Pvt.) Ltd., Karachi vide their letter dated 28.09.2016 supplied certified copy of shipping Bill No. 9563019 dated 20.08.2016 filed with Indian Customs at Mundra Sea Port India. Moreover, the scrutiny of shipping bill No. 9563019 dated 20.08.2016 provided by the shipping company, revealed that under reference consignment of 920 packs of Asaliya Seeds, weighing 23 MT were shipped from Mundra Indian against Invoice No.57 dated 19.08.2016, wherein the FOB export value of the goods was indicated as INR 1,902,504/- (US$. 25,804/-) which was also declared in the shipping bill, whereas Goods Declaration No. KPPI-HC-14637-05092016 filed by the accused importer indicate the C&F value of the consignment as US$. 4,140.00 (PKR: 437062/-). Likewise, manipulated/bogus export invoice bearing the same number and date i.e. 57 dated 19.08.2016 showed C^F value of under reference goods as US$. 4140/-. Online verification of shipping bill No. 9563019 dated 20.08.2016 from the official website of Indian Customs www.icegate.gov.in, further confirms the actual FOB of the consignment of INR 1905,504/- i.e. US$. 25,804/-. The consignment was assessed by the Collectorate at the unit value of US$. 0.20/kg total US$. 4,600/- equivalent to PKR. 485,613/-. On the basis of actual FOB value indicated in the relevant shipping bill filed at port of shipment, the total C&F value of the consignment comes to US$. 25980/- equivalent to Rs. 2769480/-. The leviable duty and taxes on actual transaction value are worked out to Rs. 894,210/- (CD: Rs. 83,084/-, ACD: Rs. 27695/-, ST: Rs. 489,644/- AST: Rs. 86408/- and WHT: Rs. 207,379/-), while evasion of duty/taxes through concealment/misdeclaration of value comes to Rs. 737,416/- (CD: Rs. 68516/-, ACD: Rs. 22839/-, ST Rs. 403788/- AST Rs. 71257/- and WHT Rs. 171,016/-), which are recoverable from the importer. Hence, the charges levelled against the importer of misdeclaration of value has been established in terms of Sections 25, 32(1) and (2), 32A and 79(1) of the Customs Act, 1969, punishable Sections 156(1) (14) and 14A) of the Customs Act, 1969, read with sections 3,6,7A, 33,34 of the Sales Tax Act, 1990 and Section 148(1) of the Income Tax Ordinance, 2001. However, an option under Section 181 of the Customs, 1969 is given to the importer to get his goods released/redeemed on payment of redemption fine 35% amounting to Rs. 969381/- of the value of offending goods amounting to Rs. 2769480/- along with a personal penalty of Rs. 100,000/- is also imposed with a warning to importer to be careful in future, if there is any recurrence in future the importer and his associates would be dealt with stern action. Furthermore, the assessing staff is required to finalized the assessment on the basis of this order and recover legitimate amount of duty and taxes and amount of redemption fine and penalty imposed after application of valuation ruling/criteria, data, which ever is applicable."
3.The Appellant challenged the vires of the impugned order-in-original before the Respondent No. 3 vide Appeal No. Cus/1186/ 2017/DIT which was dismissed vide order dated 22.12.2017 on the pre-determined notion, without controverting the grounds of memo. of appeal, para 6 is relevant, reproduced here-in-under:
"I have examined the case record and the arguments of both the sides and have given careful consideration to the facts of the case. In the instant case, the appellants were charged to have under invoiced the value of impugned goods. The invoice was although not found in the container, the respondent department has detected the under invoicing through backward tracking of B/L, Shipping Bill at country of origin etc culminating in actual invoice value declared to Indian Customs at the time of export of impugned goods to Pakistan. The appellant has not been able to controvert the findings appearing through collected data by the respondent. No reason has been put forth to contest or justify why the value declared at exporting country is different and far more than what has been declared in Goods Declaration. The appellant, case therefore, is not tenable. In view of foregoing, I find no reason to interfere with the findings of the impugned order the appeal being without merit, fails."
4.The appellant filed the instant appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the case strictly in accordance with those. No cross objection under Subsection (4) of Section 194A of the Act has been filed within the stipulated period of 30 days by the respondent No. 1, instead comments, which are not in any manner qualify memo. of cross objection, deems to be termed as cross appeal filed under Subsection (3) by the department as expressed in aforesaid section. Therefore, these are to be considered merely as opinion, having no binding force, however, are placed on record of the case for perusal and consideration.
5.Rival parties heard and case record perused and so the relied upon judgments. Consequently framed the following issues for decision:
(i)Whether respondent No. 1 and his subordinates are empowered to detain the imported goods under the provision of Section 186 of the Act?
(ii)Whether respondent No. 1 and his subordinates have the powers to intercept and detain the lawful legal cleared consignment by the subordinate of respondent No. 2 after completion of codal formalities i.e. passing of assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules in exercise of the powers vested upon them through SRO 371(I)/2002 dated 15.06.2002?
(iii)Whether respondent No. 1 and his subordinates have been appointed as an officer of Directorate General of Post Clearance Audit by the legislature under Section 3DD of the Act and are empowered to conduct audit the record and books of account maintained under Section 211 and Chapter XI of Act/Rules under the provision of Section 26(2) after serving a notice / summon under Section 26A of the Act post clearance of the imported goods as contemplated in SRO 500(I)/2009 dated 13.06.2009?
(iv)Whether powers has been delegated by the Board to the respondent No. 1 and his subordinates under the provision of Sections 25, 25A, 32,79, 80, 83 and 195 of the Act vide SRO 486(I)/2007 dated 09.06.2007?
(v)Whether respondent No. 1 and his subordinates are being appointed as an officer of Directorate General of Intelligence and Investigations (Inland Revenue) under the provision of Sections 30A and 230 of S.T.A. and I.T.O. and been delegated powers under the different Sections of S.T.A. vide SRO 776(I)/2011 dated 19.08.2011 and Section 207 of the I.T.O.?
(vi)Whether Sections 3, 6, 7, 33 and 34 of S.T.A. and Section 148 of the I.T.O. are penal clauses to be invoked for the contravention of the charging /applicable sections of the S.T.A./I.T.O. and as to whether those were correctly invoked by the respondent No. 3 in the show-cause notice?
(vii)Whether respondent No. 3 has been appointed as officer of Inland Revenue under Section 30 of the S.T.A. or any section of ITO and as to whether she is empowered to issue show-cause notice and pass order-in-original in the matter of sales/income tax?
(viii) Whether respondent No. 1/his subordinates and respondent No. 3 are empowered to reopen a valid assessment/clearance order passed by the authority defined in Section 2(a) under the provision of Sections 80 and 83 and Rules 438 and 442 of the Acts/Rules under the provision of Section 195 ibid, while ignoring the provision of Section 193, wherein, right of appeal has been extended to them by the legislature and as to whether respondent No. 3 is empowered to pile upon another order under the provision of Section 179 of the Act in the presence of existing in field assessment/clearance orders passed under the aforesaid provision of the Act by the authority defined in Section 2(a) ibid?
(ix)Whether any contravention of Section 79(1) of the Act has been committed by the appellant?
(x)Whether shipping bill of the exporting country is defined document in Section 2(kka) of the Act for submitting/ transmitting declaration under the provision of Section 79(1) of the Act and can be construed as a declaration on the part of importer (appellant) through any stretch of imagination?
(xi)Whether charge of misdeclaration of value under the provision of Section 32 of the Act can be invoked on the strength of the value available in the shipping bill of export available in Indian Customs Website www.icegae.gov.in and could be treated as direct evidence as enunciated in paras 78, 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of SRO 499(I)/ 2009 dated 13.06.2009?
(xii)Whether order passed by respondent No. 4 was within time specified in subsection (3) of Section 193A of the Act?
(xiii) Whether orders passed by respondents Nos. 3 and 4 are speaking and well reasoned and conform to mandated requirement of Section 24A of General Clauses Act, 1897?
6.As regard to issue No. (i). The power/ jurisdiction of respondent No.1 and his subordinates of putting an hold on the GD/ detention on the consignment under the provision of Section 186 needs to be determined, expression of which read as follows:
186: Detention of Goods pending payment of fine or penalty;--(1) when any goods or fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or pending any inquiry or investigation, in respect of any goods such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed.
(2) when any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any goods belonging to the same owner pending of such fine or penalty.
Upon conscientious analysis of Section 186, it is observed that the said section comes into play during the course of imports, meaning thereby if any case has been adjudicated by the competent authority against an importer and through which he held the charges established as levelled in the show-cause notice and imposed fine and penalty, and the importer has not paid that or any inquiry or investigation in respect of any goods is under way and imposition of penalty is under consideration. The appropriate officer is empowered to detain the forthcoming goods of the same owner/importer till the time fine and penalty is not paid. The case of appellant is that against him no order is in field, through which fine/penalty has been adjudged against him and he has not paid that or assailed before the judicial forum, nor any inquiry or investigation in respect of any of his imported goods is under way for imposition of penalty. Resultant, his lawful cleared goods cannot be detained under any pretext by any officer of customs, as regard to the officials of respondent No. 1, they can detained the goods which are either smuggled or of the person involved in smuggling falling within the ambit of Section 2(s) of the Act sans imported goods, power to detain those under the provision of Section 186 of the Act is only available to the official of Clearance Collectorate upon availability of either of the 02 conditions available in subsection (1) of Section 186 of the Act, resultant, detention of the goods of an importer is not permitted even by the officials of the Clearance Collectorate in the absence of availability of any of the 02 conditions the respondent No. 1 and his subordinates in any way even through stretch of imagination or inapt interpretation of the provision of the aforesaid provision of the Act are not empowered to detain the goods of any importer, appellant is not exception, due to the fact they are not empowered either to pass assessment/clearance order under the provision of Sections 80, 83 and Rules 438 and 442 against the imported goods, or pass order under the provision of Section 179 for imposing fine/penalty or even recover the adjudged amount under the provision of Section 202 of the Act. Resultant, they acted without lawful authority/jurisdiction in detaining the appellant goods on the presumption/formed opinion of misdeclaration of value, rendering the detention as ab-initio, null and void and coram non judice as held by the Hon'ble High Court of Sindh in its judgments reported as 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 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 C.A., 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 empower the authority to do so." and 2015 PTD 560 Messrs O.S. Corporation v. FOP and others, "where no fine or penalty has been imposed or even under consideration the provision of Section 186 are not relevant---the authorities acting on a hunch have detained goods as the exit gate, even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totally contrary to the provision of the Act, 1969". Hence, in categorical terms I hold that detention of appellant goods by the respondent No. 1 is not and only without lawful authority even jurisdiction by virtue of being derogation Section 2(s) and Section 186 of the Act. The issue No. (i) Is answered in negative.
7.As regard to issue No. (ii), the respondent No. 1 and his subordinates are indeed appointed as "Officer of Customs" under Section 3A of the Customs Act, 1969 and they derived power for functioning from S.R.O 486(I)/2007 dated 09.06.2007 within the territory of Pakistan for thwarting the act of smuggling. Their jurisdiction in principle is restricted to the territory not falling within the ambit of Sections 9 and 10 of the Act and beyond 5 kilometers of the border of India and Iran as contemplated in Section 177 ibid and SRO No. 118(I)/83 dated 12.12.1983. The goods of the appellant were not brought into Pakistan from any other route, instead from the defined port after completion of all codal formalities i.e. passing of assessment/ clearance orders under sections 80 and 83 and Rules 438 and 442 of the Act/Rules for levy/realization of the applicable duty and taxes by the authority defined in Section 2(a) in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002. Resultant, the consignment in question stood ousted from the definition of the smuggled goods and cannot be detained under the provision of Section 186 of the Act, the plea of the representative of the respondent No. 1 that being watch dog of the Revenue Division they are empowered to detain, seize any consignment cleared from the defined port by the officials of the Clearance Collectorate, in case of misdeclaration of description, quantity, quality, weight, PCT, erroneous/non-application of valuation ruling and claiming/allow of the exemption under the respective infield SROs. The said formed opinion/assertion of the respondent No. 1 and his subordinates is based on mistaken belief as any action by them has to be initiated only for the act of smuggling, which can never be invoked on any importer/appellant in case of evasion/short payment of duty and taxes on the cleared goods as evident from the definition of the word smuggle available in Section 2(s) of the Act reading as "means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in forced en-route pilferage of transit goods or evading payment of customs duties and taxes leviable thereon." Therefore, upon putting a hold on GD/detaining the goods, provision of Section 2(s) is mandated to be invoked in the FIR, contravention report by the respondent No. 1 and his subordinates for availing powers of seizure under the provision of Section 168(1) of the Act, vested upon them through SRO 486(I)/2007 dated 09.06.2007. Upon perusal of FIR and show-cause notice available at pages 41-45 as Exhibit M and N, I have observed that the provision of Section 2(s) have not been invoked by the respondent No. 1 and his subordinates on the appellant, resultant, they were not empowered to seize the goods under the provision of section 168(1) of the Act of the appellant. Non invoking of Section 2(s) on the appellant is fatal and renders the seizure, preparation of contravention report and the subsequent proceedings undertaken by respondents Nos.3 and 4 as of no legal effects/jurisdiction and as such ab-initio, null/ void and coram non judice as held by the superior judicial fora in their judgments reported at 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505. In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. The issue No. (ii) Is answered in negative.
8.As regards to issue No. (iii). The legislature has inserted Section 3DD in the Act, through which Directorate of Post Clearance Audit has been created and its officials had been delegated powers through SRO. 500(I)/2009 dated 13.06.2009 for conducting audit under Section 26(2), of the record/books of an importer maintained under Section 211 and Chapter XI of Act/Rules after serving notice/summon under Section 26A of the Act, wherein, they check all the aspects corresponding to the declaration made under section 79(1) based on defined documents in Section 2(kka) and assessment order passed by the competent authority under section 80 of the Act. Thereafter, upon finding discrepancy or any ambiguity in any context i.e. declaration or the contravention of the law, prepares audit observation and serves that on the importer for clarification, if the reply is not convincing as per their formed opinion, frames contravention report and forward that to the Collector of Customs of the respective Clearance Collectorate, which onward forwards it 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 officials of respondent No. 1 assumed the powers of officials of Directorate General of Post Clearance Audit and conducted the Audit Post Clearance of the GD of the appellant under Section 26(2), in the absence of availability of powers. The respondent No. 1 and his subordinates are not permitted under law to transgress the sovereign jurisdiction/powers of DG, PCA and his subordinates under any circumstances as this will render the formation of DG-PCA by the legislature under Section 3DD of the Act and the powers delegated under SRO. 500(I)/2009 dated 13.06.2009 as redundant. The Tribunal has observed with great concern that the respondent No. 1 and his subordinates are running parallel department of the DG, PCA which is in derogation of Section 3DD ibid, not warranted under law being 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 acts 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, conduction of audit post clearance under Section 26(2) by the subordinate of respondent No. 1 of the GD of the appellant is without lawful authority as such without any power/ jurisdiction, hence, void and ab-initio and coram non judice as held in the relied upon judgments on the said point of law by the appellant in ground No. (i) available at page 5 of the memo. of appeal. The issue No.(iii) is answered in negative.
9.As regard to issue No. (iv). On perusal of contravention report prepared by the respondent No. 1 and his subordinates, on the strength of which respondent No. 3 issued show-cause notice and passed order-in-original, it has been observed that charges against the contravention of the provision of Sections 25, 32(1) and (2), 32A and 79 of the Act have been levelled against the appellant despite non availability of powers under these Sections in column 3 of SRO 486(I)/2007 dated 09.06.2007, rationale for that was under Subsections (1) to (6) of Section 25 of the Act the competent officer of the Clearance Collectorate is empowered to determine/evaluate the declared value of the imported goods for levy/collection of duty and taxes after passing valid appealable assessment order under the provision of Section 80 and Rule 438 of the Act/Rules but prior to passing of clearance order under Sections 83 and Rule 442 ibid., whereas under Section 25A powers has been delegated to the Director, Directorate General of Valuation for determination of value of the goods and class of goods imported under the provisions of Subsections (7) to (9) of Section 25 of the Act and to issue the ruling to the said effect for application on the goods for levy of duty and taxes at the time of passing assessment order. Section 32 expresses that If any person, in connection with any matter of customs,-----makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or (a) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, .Knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. (Emphasis Supplied). None of the importer including appellant make or sign or cause it to be made or signed or delivers or causes to be delivered to an officer of customs any declaration for the clearance of their goods, which are not either respondent No. 1 or his subordinates, instead the entire declaration and subsequent proceeding is made/completed with/by the officials of Clearance Collectorate i.e. respondent No. 2. Section 79(1) of the Act speaks about filing/transmission of GD for the imported goods with the respective Clearance Collectorate, meaning thereby it is a machinery section not charging, if the GD was either auto selected or by the assessing officer for examination under the provision of Section 198 and Rule 435 of the Rules, its stands ousted from the said section and falls under the provision of Section 80 and Rule 438, which lays inbuilt duty on the officer of the clearance Collectorate to check all the aspect of the case and so the levy of duty and taxes and claimed exemption, evident from their expression reading as:"Section 80 Checking of goods declaration by the Customs----(1) on the receipt of goods declaration under section 79, an officer of customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration assessment, and in case of the customs computerized system payment of duty, taxes and other charges thereon." and "Rule 438--Assessment by Customs Authorities: Where any declaration has been filed under Rule 433 or additional documents have been submitted under rule 437 the Customs shall satisfy itself as to their correctness including its value, classification claim of exemption, payment of duty and taxes and may re-assess the goods during or after clearance". Section 195 of the Act empowers the Collector of Customs or Board to call for the record of the order/decision passed by subordinate officer for determination of their legality or propriety, in case any illegality or impropriety apparent from the passed order/decision, are empowered to reopen the same and pass a fresh order as he/it deems fit after issuance of show-cause notice, enabling the importer or the person concerned to assail the same before the forum outlined in the provision of Section 194A(1) of the Act. In the light of the adumbration made here-in-above, it is established in unequivocal terms that neither respondent No. 1 or his subordinates are empowered to initiate action of detention, seizure preparing of contravention report against the imported goods, despite availability of the contravention of the invoked provision in the contravention report, as this is tantamount to reopening of assessment order under Section 195 of the Act, wherein respondent No. 1 and his subordinates figures nowhere, likewise in the application and implication under the provision of Sections 25, 25A, 32, 79, 80 and 83 of the Act/Rules as deliberated above, rendering their act as transgression to the vested powers of the appropriate authority defined in Section 2(b) under the aforesaid sections of the Act, consequent result of which is that the entire proceeding right from detention to passing of order-in-original is without lawful authority/jurisdiction. Hence, ab-initio, null and void by virtue of the fact that it is settled principal of law that no body is allowed to act beyond the scope of their allotted sphere, jurisdiction and powers as held by the superior judicial fora in their judgments reported at 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505, In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. The issue No. (iv) is answered in negative.
10.As regard the issue No. (v), upon perusal of amended Section 30A of the S.T.A. by Finance Act, 2012 and insertion of Section 230 of the I.T.O. by Finance Act, 2012, I found that the respondent No. 1 has not been appointed/designated as officer of Inland Revenue by the legislature, instead Directorate General of Intelligence and Investigation- Inland Revenue which has been delegated powers under SRO. 776(I)/2011 dated 19.08.2011 for exercising under different section of the S.T.A. referred in column 3 of the notification and under section 207 of the I.T.O. and for overseeing the collection of withholding Tax, Directorate General of Withholding Taxes has been established under Section 230A of the I.T.O., meaning thereby that the respondent No. 1 and his subordinates are not at all appointed/designated as officer of Inland Revenue. Rendering the entire act of preparation of contravention report in the matter relating to sales tax and income tax by the official of respondent No. 1 without powers/jurisdiction and as such coram non judice and this stood validated from the latest reported judgment [(2014 PTD 1733)] Waseem Ahmed and others v. FOP and another, where it has been held in clear terms that "unless the officer of DGI&I)-FBR are not appointed as an officer of Inland Revenue, powers under the different sub section of the Sales Tax Act, 1990 can not be delegated through any SRO with that the Hon'ble High Court of Sindh declared that the act and commission taken by the respondent No. 1 in the presence of existing section 30A of the Sales Tax Act, 1990 and Notification No. SRO 776(I)/2011 the act and commission done by the respondent No. 1 in the matter of Sales Tax beyond the date of substitution of Section 30A and date of notification is without any lawful authority". The issue No. (v) is answered in negative.
11.As regard to issue No. (vi). That respondent No. 3 invoked certain provision of S.T.A. and I.T.O. without going through their expression, and in negation of the ratio settled by the Supreme Court of Pakistan in reported judgment 2010 SCMR 1425 Section Officer Government of Punjab Finance Department and others v. Ghulam Shabbir that the Principle of Administration of Justice and Interpretation of Statute is that "the person who is performing the role of a judge, no matter even in quasi-judicial proceeding must wear all laws of the country on the sleeves of his robes and failure to do so by any reason is not an excuse". Sections 3, 6, 7, 33 and 34 S.T.A. and 148 of the I.T.O., Section 3 is indeed a charging Section but under the said Section the appropriate authority is officer of Inland Revenue, whereas Section 6 defines mode and manners of collection of Sales Tax at import stage by the customs authority, resultant it is not a charging instead a machinery section. Whereas, Section 7 of the S.T.A. speaks about determination of tax liability at the time of filing sales tax return under section 26 of the STA, this is as well a machinery section and Section 33 contain penal clauses synonymous to Section 156(1) of the Act and Section 34 speaks about default surcharge to be paid upon contravention and establishing of the charge under charging section. Likewise, Section 148 prescribes the procedure for collection of Income Tax at import stage by the authorities referred therein. Meaning thereby that the said sections are independent under which no charge can be invoked. To the contrary, I am flabbergasted to note that respondent No. 3 invoked these as penal clauses. I have no words for this sort of ignorance putting a big question mark on the competency of the respondent No. 3. No show-cause notice is allowed to be issued by terming aforesaid section, who are independent and have no nexus with each other, by terming these as penal clauses in the absence of invoking of relevant charging/respective sections of the S.T.A. and I.T.O. Issuance of show-cause notice, while invoking irrelevant/erroneous sections, renders it void and ab-initio and of no legal effect as held by the superior judicial fora in their judgments reported at 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, 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, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs. The issue No. (vi) is answered in negative.
12.As regard to issue No. (vii). I, have also noticed with great concern that Respondent No. 3 in the show-cause notice have invoked certain Sections of S.T.A. and Section 148 of the I.T.O. as 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 is sufficient for assuming powers under the charging Sections of Section 11 of the S.T.A. and 162(1) of I.T.O. Upon perusal of Section 32(2) and (3) of the Act, 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 S.T.A. and 162(1) of the I.T.O. unless Legislature appoints 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 S.T.A. and Section 162(I) of the I.T.O. which are otherwise non existence in the show-cause notice and no charge against the Appellant has been levelled under any provision of the S.T.A. and in I.T.O., rather Sections 3, 6, 7, 33 and 34 of S.T.A. and 148 of the I.T.O. have been inserted as penal clauses which are erroneous/ 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 Act. These clauses cannot be 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 S.T.A. and Section 228 of the I.T.O. 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 S.T.A. and Section 162(1) of the I.T.O., 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 S.T.A. and Section 162 (1) of the I.T.O. Assuming powers on the basis of mistaken belief and warrant of law is palpably illegal beside fatal to the health of the case, as 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 S.T.A. and Section 162(1) of the ITO, 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 S.T.A. and Section 162(1) of the I.T.O. 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 S.T.A. and I.T.O. Therefore, I am of the considered opinion that 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 Act is also based on mistaken belief, 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 Section 48 of the S.T.A. and Section 140 of the ITO for recovery of the adjudged amount of Sales Tax and Income Tax after due process of law. Hence, 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 18 of the Act under Section 202 ibid., after due process of law, but have no powers to adjudicate the cases of short recovery of 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 02 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 02 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) 2018 PTD (Trib.) 1318 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.
14.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 in titled as Collector of Sales Tax and Federal
Excisev.MessrsQasimInternationalContainerTerminalPakistanLtd., whereinithasbeenheldthat "Thereisacleardistinction 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 imported by implication." In 2008 PTD 1973 Xen Shahpur Division v. Collector of SalesTax(Appeal),CollectorateofCustoms,FederalExciseandSales Tax, Faisalabad, for clarity of the Rule of Interpretation ofStatute, 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 beimplied -one can only look fairly at the language used" The Hon'ble SupremeCourtofPakistaninreported judgment2006SCMR129titled 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"
15.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. (vii) answered in negative.
16.As regards to issue No. (viii), upon passing of assessment order dated 09.09.2016 under Section 80 and Rule 438 of the Act/Rules, 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 the existing assessment order 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 09.09.2016 before respondent No. 4 under section 193 of the Act in exercise of the powers delegated upon them through SRO 486(I)/2007 dated 09.06.2007. 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 has not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show-cause notice to the importer (appellant) under the provision of Section 32 as expressed in 3rd proviso to the sub section (3) of Section 193A of the Act. Instead of adherence of 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 C.P.L.A. 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 09.09.2016 as elaborated above by Respondent No. 1 on or before 08.10.2016. The transaction stood passed and closed and attained finality and cannot be disturbed. For reaching at the said conclusion I have gained strength from the reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue, wherein their lordship ofHigh Court held that "if the order has attained finality throughlimitation. A fortiori;theCentralBoardofRevenuecouldnotopenupan 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 orders passed by the forum below i.e. respondents Nos.3and4forpilinguponanexistingappealableorder arewithoutlawfulauthorityandjurisdictionandassuchvoidand ab-initio and of no legal effect. The issue No. (viii) is answered in negative.
17.As regard to issue No. (ix). Leveling allegation of contravention of Section 79(1) of the Act is erroneous by virtue of the fact that aforesaid section is not a charging section instead a machinery outlining the procedure of transmitting GD with the Clearance Collectorate under the regime of CCS, no charge under the said Section could be invoked in the show-cause notice even in general not particularly when the goods were selected for examination under the provision of Section 198 and Rule 435 and the goods were released after passing valid assessment/ clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by the authority defined in section 2(a) of the Act in exercise of the vested power delegated upon him through SRO 371(I)/2002 dated 15.06.2002 for levy of duty and taxes with the application of value of the identical/similar goods available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of the Rules. Since, the goods of the appellant were not either auto cleared by the CSS module, instead after completion of all codal formalities warranted for clearance of the goods i.e. conduction of examination under Section 198 and Rule 435 and passing of assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 of the Act by the authority defined in Section 2(a) in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002, his consignment cannot be construed to any stretch of imagination/ interpretation cleared on self assessment basis under the provision of Section 79(1) of the Act. Hence, no contravention of the said section despite machinery has been made by the appellant, invoking the contravention of section 79(1) by the respondent No. 3 in the show-cause notice is erroneous/out of place. The issue No. (ix) is answered in negative.
18.As regard to issue No. (x). One has to look into the definition of available in Section 2(kka) for the documents required for transmitting GDundertheprovisionofSection79(1)oftheActandwhichreadas:
"documents means a goods declaration, application for claim of refund, duty drawback or repayment of duty, import or export general manifest passenger manifest, bill of lading, airway bill, commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to customs, whether or not signed or initiated or otherwise authenticated, and also includes:-
(i) any form of writing on material, data or information recorded, transmitted, or stored by means of a tape recorder, computer or any other device, and material subsequently derived from information so recorded, transmitted or stored;
(ii) a label, marking or other form of writing that identifes anything of which it forms part of to which it is attached by any means;
(iii) a book, map, plan, graph or drawing, and
(iv) a photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment of being reproduced; and)]
19.From the perusal of the above definition, it has been observed by me that for filing/transmitting GD under the provision of Section 79(1) of the Act documents warranted are "commercial invoice, packing list, Bill of Lading or Air Way Bill or similar other forms or documents used for customs clearance or making declaration to the Customs, whether or not signed or initialed or otherwise authenticated, which are contract, proforma invoice, letter of credit, certificate of origin, health certificate, FTA or akin documents. Shipping bill filed by the shipper at the port of loading or the value available in the website of Indian Customs www.icegate.gov.in, figures no where in the definition of Section 2(kka) of the Act, terming the shipping bill of the exporting country as a document even not warranted for filing IGM under Section 45 or declaration under Section 79(1) despite not defined in Section 2(kka) of the Act and even by passing identical similar value within the meaning of Section 25(5) and (6) and Rules 117 and 118 of the Act/Rules available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of the Rules have no warrant of law. Resultant, contents available in shipping bill filed by the exporter at the port of shipment with the country of export or in the Indian Customs Website www.icegate.gov.in cannot deems to be construed as an "information" and or "document" under the Act and that too for the legal purpose such as framing of contravention report and issuance of show-cause notice, on the basis of such information. It have to be appreciated even otherwise it cannot be deemed to be termed as evidence on the basis of "disclaimer" available in the website reading as stating in no uncertain terms that the contents therein should not be construed as a statement of law or use for any legal purpose. The referred statement renders reliance of contents of Icegate Website alegal impossibility even in India, where it originate, much less in Pakistan, where contents there from cannot even deems to constitute "information" and or "documents" under the Act and that too for the legal purpose and even otherwise it cannot be deemed to be construed as evidence being falling short of the statutory criteria stipulated under Qanun-e-Shahadat Order, 1984, in respect of foreign documents, reliance on shipping bill of the exporting country/website www.icegate.gov.inare therefore totally misconceived and suffer from legal infirmity and cannot be made a tool for penalizing importers including appellant consignments inclusive of Appellant, the issue No. (x) is answered in negative.
20.As regard to issue No. (xi). Invoking of provision of Section 32A of the Act by the respondent No. 3 on the appellant in totality is illegal void, as no documents have been uploaded by him in the reservoir of the GD at the time of transmitting under Section 79(1) and Rule 433 of the Act/Rules, being concocted, altered, mutilated, false, forged, tampered or counterfeit as such clauses (a) (b) (c) of the Section is not attracted and is inapplicable to the extent of appellant. The clauses (b) (c) are also irrelevant as it is matter of fact that appellant never gave any information electronically or by any other mean corresponding to GD referred in the show-cause notice as such clauses (b) (c) are certainly not attracted, whereas clause (d) also does not apply on appellant as he never altered mutilated or suppressed any finding of any customs functionaries or any documents or in the computerized record, hence, the said clause is certainly not attracted and applicable. The clause (e) is also obviously irrelevant as no attempt, abatement or connivance in any action mention in clauses (a), (b), (c) and (d). The show-cause notice in this context by virtue of invoking irrelevant sections ought to be without lawful authority and as such void and ab-initio. For levelling charge for misdeclaration of value on an importer which including appellant under the provision of Section 32 of the Act, neither shipping bill filed by the exporter in the country of export nor information available in the website www.icegate.gov.in can be construed as an direct evidence within the contemplation available in paras. 78, 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of serial No. 1 of SRO 499(I)/2009 dated 13.06.2009, which is evidential invoice of the similar goods of the same period and country of export, to be suppliedmandatorilytothepersonuponwhichchargehasbeenlevelled, which is non existent, no charge of misdeclaration on the basis of value declared by the shipper in the shipping bill for Indian Customs or information available in the Indian website www.icegate.gov.in can be levelled as those least qualify to the definition of direct evidence warranted under law. Rendering the show-cause notice as of no legal effect and based on no evidence as held by Hon'ble High Court of Sindh 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". The issue No. (xi) is answered in negative.
21.As regard to issue No. (xii), the appeal before respondent No. 4 was filed by the appellant on 16.12.2016 and an order in that has to be filed as per the contemplation of Subsection (3) of Section 193A of the Act within 120 days i.e. on or before 15.04.2017 or with further extended period of 60 days by the respondent No. 4 prior to lapse of initial period of 120 days on availability of exceptional circumstances and recording of those, after serving notice to the appellant as held by Hon'ble Supreme Court of Pakistan in its judgment reported at 2009 SCMR 1881, Khalid Mahmood v. Collector of Customs. In the instant case of the appellant, no extension whatsoever was given by the respondent No. 4 prior to expiry of initial period of 120 days, evident from the Order itself, which is completely silent in this regard. The extension given by the Board vide letter C.No. 1(03)TO-II/2017 dated 14.11.2017,isnotvalidbyvirtueofthefactthatithastobegivenprior to the lapse of currency of initial period of 120 days, extension granted by the Board on 14.11.2017 is nothing more than floggingadeadhorseforgivingaleaseoflife.Thefactofmatterisanymedicationorcurehastobeundertakenpriortodemise of an issue, can't be revived even through artificial supportwhentheissuehadgonetotheannulofhistory. Hence,theorderpassed by respondent No. 4 on 22.12.2017 is barred by time by 221 days. Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held by the Judicial Fora in their judgments reported at 2017 PTD 1756 and 2017 SCMR1427CollectorofCustomsSalesTaxGujranwalaandothers v. Super Asia Mohammad Deen and Sons and others, 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 InnovativeImpexv.CollectorofCustoms,SalesTaxandFederalExcise (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. The issue No. (xii) is answered in negative.
22.As regard to issue No. (xiii), the orders passed by respondents Nos.3 and 4 shows that these are mala fide Orders based on assumptions/ presumption and conjectures finding no place in the reply to the show-cause notice and grounds of appeal of the appellant, validated from the incorporation made by respondent No. 3 of the impugned order-in-original and pages 4 to 9 of Order-in-Appeal for stretching the order. These cannot be termed as a judicial orders by any through any definition. The fact of the matter is, these are non speaking orders and do not conform to the mandated requirement of section 24-A of the General Clauses Act, 1897. They passed the impugned orders on their personal pre-determined and absurd formed opinion contrary to law and that too is also not containing substantial reasons and did not show that these were passed on objective consideration. Such type of orders are deemed to be always treated as illegal, void arbitrary and a result of misuseofauthorityvestedinpublicfunctionary.Noroomwasavailableforsuchillegal,voidandarbitrarilyordersinanysystemof law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle ofdispensationofjustice.TheOrdersareinviolationofbasicprinciple of the good governance and mandatory requirement of Section 24AoftheGeneralClausesAct,isnotonlyillegalandvoidbut also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014, 2012 PTD (Trib.) 619 and 2016 PTD 589. The issue No. (xiii) is answered in negative.
23.What has been discussed hereinabove, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio-decidendi observed by the Superior Courts, I set aside the orders passed thereon, during the hierarchy of the customs being illegal, void and ab-initio, appeal is accordingly allowed with no order as to cost.
24.Judgment passed and announced accordingly.
SA/17/Tax(Trib.) Appeal allowed.