HAFEEZ MOTOR STORE VS DEPUTY COLLECTOR OF CUSTOMS
2019 P T D (Trib.) 187
[Customs Appellate Tribunal]
Before Muhammad Nadeem Qureshi, Member (Judicial-I)
Messrs HAFEEZ MOTOR STORE and another
versus
DEPUTY COLLECTOR OF CUSTOMS and another
Customs Appeals Nos.K-1507 to K-1511 of 2015, decided on 20/07/2018.
(a) Customs Act (IV of 1969)---
----Ss. 80, 83, 29, 155Q, 215, 32, 180, 193 & 194A---Customs Rules, 2001, Rr. 438 & 442---S.R.O. No.371(I)/2002 dated: 15-06-2002---Checking of goods declaration by Customs---Clearance of goods---Restriction on amendment of goods declaration---Show-cause notice---Electronic notice---Manual service of order--- Right to file appeal---Limitation---Scope---Appellant imported consignment of wind shield glasses and filed goods declaration--- Appraiser examined the goods and found the goods as per declaration---Software of WeBOC passed clearance order and the appellant obtained delivery of goods from the terminal---Deputy Collector of Customs (Appraisement) passed reassessment order after a lapse of 10 months and created recovery by amending the existing assessment order---Reassessment order was not communicated to appellant, instead it was communicated verbally by the Deputy Collector of Customs (Appraisement)---Appeal by appellant before Collector of Customs (Appeals) was dismissed on the ground of limitation---Validity---Clearance of consignment had been made under Software of WeBOC regime and after passing of clearance order appellant had obtained delivery of goods from the terminal---Any correspondence under the said regime had to be transmitted online without any exception---Officials of customs were bound to intimate in regards to passing of reassessment order and creating of recovery manually after clearance of goods through the software of WeBOC regime---Importer had to be served so as to enable him to avail the remedy under the provisions of S. 193 or S.194A, Customs Act, 1969---View message as contemplated in Ss. 155Q & 215, Customs Act, 1969 for payment of created recovery amount was not transmitted/served, instead reassessment order was kept as guarded secret and surfaced only when the appellant intended to file fresh goods declaration for his newly arrived consignment at the terminal---Appellant obtained reassessment order and filed appeal before Collector of Customs (Appeals)---Office of Collector of Customs (Appeals) entertained the appeal without any objection of the same being time barred, meaning thereby that it was admitted for regular hearing on merits---Appellate Authority had to examine the reason for delay sympathetically when appellant was proceeded against ex parte during adjudication proceedings---No limitation ran against ab initio void order---Recovery was created in isolation without issuance of show-cause notice and in usurpation of powers delegated to the Principal Appraiser---Reassessment order was held to have been passed without lawful authority and as such null, void ab initio and coram non judice.
Rehmat Bibi and others v. Punno Khan and others 1986 SCMR 962; Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1996 SCMR 2296; 2002 PTD 2457; PLD 11971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2001 SCMR 838; 2003 SCMR 1505; PLD 1996 Kar. 68 and PLD 1971 SC 184 ref.
2010 PTD (Trib.) 1491; 2010 PTD (Trib.) 1359; 2012 PTD (Trib.) 637; Laser Praxis Deplix Clinic Lahore v. Customs Central Excise and Sales Tax Appellate Tribunal 2002 PTD 549; Controller of Land Acquisition v. Mst. Khatiji and others (1987) 56 Tax 130; Ali Muhammad v. Hussain Bux and another PLD 1976 SC 37 and FOP v. Metropolitan Steel Corporation 2002 PTD 87 rel.
(b) Limitation---
----No limitation runs against void ab initio order.
Rehmat Bibi and others v. Punno Khan and others 1986 SCMR 962 and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1996 SCMR 2296 ref.
Ali Muhammad v. Hussain Bux and another PLD 1976 SC 37 and FOP v. Metropolitan Steel Corporation 2002 PTD 87 rel.
(c) Customs Act (IV of 1969)---
----Ss. 3DD, 26A, 80, 179, 180, 193 & 195---Customs Rules, 2001, R. 438---S.R.O. No. 500(I)/2009 dated: 13-06-2009---Directorate General of Post Clearance Audit---Audit---Checking of goods declaration by Customs---Power of adjudication---Jurisdiction---Procedure---Past and closed transaction---Appeal by Customs Authorities---Scope---Appellant imported wind shield glasses and filed goods declaration---Software of WeBOC passed clearance order and the appellant obtained delivery of goods from the terminal---Deputy Collector of Customs (Appraisement) passed reassessment order after a lapse of 10 months and created recovery by amending the existing assessment order---Validity---Legislature had inserted S.3DD in Customs Act, 1969 through which Directorate General of Post Clearance Audit was created 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 it to the Clearance Collectorate which shall 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) assumed the jurisdiction of Directorate General of Post Clearance Audit under S.26A, Customs Act, 1969---Only course left for the Deputy Collector of Customs (Appraisement) was to file an appeal before Collector of Customs (Appeals)---Deputy Collector of Customs (Appraisement), instead of the prescribed method, reopened the assessment/clearance order under S.195, Customs Act, 1969 which powers were either vested with the Federal Board of Revenue or the Collector of Customs---No appeal had been filed against the assessment order within the stipulated period of 30 days resultantly, it attained finality and could not be disturbed being a past and closed transaction.
Messrs Paramount International (Pvt.) Ltd. Karachi v. Secretary Revenue Division 2014 PTD 1256 rel.
(d) Customs Act (IV of 1969)---
----S. 80---Assessment of duty---Checking of goods declaration by customs---Reassessment---Post clearance---Scope---Reassessment under S. 80(3), Customs Act, 1969 after release of goods is permitted only after documents have been called for as expressed in subsection (2) of S. 80 and upon receipt of documents or the information so transmitted/ submitted or the statement given by the importer to the Customs Authoritiesfoundtobeincorrectinrespectofearlier assessment.
(e) Customs Act (IV of 1969)---
----Ss. 205, 79(1), 80, 83 & 131---Customs Rules, 2001, Rr. 438, 442, 444 & 450---Amendment of documents---Goods declaration---Checking ofgoodsdeclarationbyCustoms---Clearance of goods---Clearanceof goods for export---Assessment by customs---Release of imported goods---Filing and validity of declaration for export of goods---Examination of goods for export---Scope---No amendment under S.205, Customs Act, 1969 is allowed in the columns of the declared value, quantity or description after removal of the goods from the Customs for home consumption as contemplated in S. 79(1), Customs Act, 1969 after passing of valid assessment/clearance order under Ss.80 & 83, Customs Act, 1969 & Rr. 438 & 442 of Customs Rules, 2001 or after shipment of the exported goods through goods declaration for export transmitted under S. 130 & R. 444 after completion of codal formalities defined in S. 131 & R. 450 or wherein customs reference number is allotted to the goods declaration electronically.
(f) Customs Act (IV of 1969)---
---- S.32(2)---Show-cause notice---Mandatory requirement---Scope---Deputy Collector of Customs (Appraisement) after clearance of goods passed reassessment order and issued demand notice for recovery of short paid amount of duty and taxes due to inadvertence of Customs officials---Validity---Such type of recovery could only be made by passing an order after issuance of show-cause notice under S. 32(3), Customs Act, 1969---No show-cause notice had been issued, in the present case, despite mandated under the law, issuance of show cause notice being a pre-requisite could not be dispensed with under any circumstances---Recovery/demand notice communicated through reassessmentorderhavingbeenissuedinisolation/vacuum,suchwas without any lawful authority hence, null and void ab initio.
Forte Pakistan (Pvt.) Ltd., Karachi v. The Director General of Intelligence and Investigation (Customs and Excise), Karachi and another 2006 PTD 978 and Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electric Lamp MFG Co., Ltd., Peshawar 2001 SCMR 838 rel.
(g) Customs Act (IV of 1969)---
----S. 180---Sales Tax Act (VII of 1990), S. 6---Income Tax Ordinance (XLIX of 2001) S. 148---Show-cause notice---Recovery of Sales Tax and Income Tax---Power to adjudicate post clearance---Scope---Customs officials were empowered to collect Sales Tax and Income Tax leviable on imported goods in the capacity of collecting agents in exercise of powers vested under S. 6, Sales Tax Act, 1990 and S. 148, Income Tax Ordinance, 2001---Customs officials were not authorised to create recovery of Sales Tax and Income Tax at post clearance stage.
Nadeem Ahmed Mirza, Consultant for Appellants.
Nisar Ahmed, A.O. for Respondents.
Date of hearing: 19th July, 2018.
JUDGMENT
MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I).--Through this common order, I intend to dispose off 05 Appeals bearing Nos. 1507-1511/2015 filed under Section 194A(1) of the Customs Act, 1969 (Act) against the Orders-in-Appeals Nos.10520 to 10524/2015 dated 24.08.2015 passed by Collector of Customs (Appeals) (Respondent No. 2) maintaining the Re-assessments Orders dated 27.09.2014 passed by Deputy Collector of Customs, Group IV, MCC of Appraisement East, Custom House, Karachi (Respondent No. 1) in Goods Declaration (GD) Nos. KAPE-HC-36033 dated 30.10.2013, KAPE-HC-45179 dated 26.11.2013, KAPE-HC-66834-29.01.2014, KAPE-65479 dated 25.01.2014 and KAPE-HC-52860 dated 18.12.2013.
2.Since, these (5) appeals are based on similar facts and questions of law, therefore, it is needless to reproduce facts of each case separately. Hence, for reference the facts of Appeal No. K-1507/2015 is taken into consideration for decision, which are. The Appellant imported a consignment of 6442 kgs of Auto Parts namely Wind Shield Glasses of Indonesian and his clearing agent transmitted GD under section 79(I) of the Act and Rule 433 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 (Rules) and deposited upfront duty and taxes of Rs. 371854.00 vide cash No. C-KAPE-008288-30.10.2013 with the MCC of Appraisement East. Consequent to which GD was numbered as KAPE-HC-36033 dated 30.10.2013. Upon receipt of GD on his desktop the nominated Appraiser instead of passing assessment order on the basis of declaration and uploaded documents opted to get the goods examined first under 198 of the Act and Rule 435 ibid, wherein, goods were found as per declaration and the report so prepared was uploaded in the reservoir of GD. The competent authority as defined in Section 2(a) thereafter perusal of the declaration and examination report and uploaded documents forming integral part of the declaration as defined in Section 2(kka) of the Act, in compliance of view message transmitted to the appellant under Rule 437, in exercise of the powers vested upon him through S.R.O. 371(I)/2002 dated 15.06.2002 passed assessment order dated 03.11.2013 with the application of value available in Valuation Ruling issued by Director, Directorate General of Valuation, under the provision of Section 25A of the, which was not in accordance with the declaration/legal filed review before Principal Appraiser as per the contemplation of Rule 441, who after consideration of that rectified the assessment and passed reassessment order dated 04.11.2013 while adducing remarks reading as "declared Wt was 6442 kgs, whereas found as per KICT weighment slip 5450 kgs therefore, after deduction of tare and keeping in view the mode of packing and in the light of scanned P/list net weight is justifiable, moreover port of shipment and supplier as per B/L and invoice is also of Indonesia, therefore GD completed accordingly as per VR" and transmitted view message of even date for payment of additional amount of duty and taxes of Rs. 96,091.00, which appellant paid along with penalty of Rs. 5,000.00 imposed for non pasting of invoice in terms of Rule 389 of the Rules in the NBP on 04.11.2013, consequent to which the inbuilt authority of the WeBOC passed clearance order under Section 83 and Rule 442 ibid by the notified authority and the appellant obtained delivery of the goods from the Terminal. Subsequent after lapse of more than about 10 months, respondent No. 1 passed yet another reassessment order dated 27.09.2014 under the provision of Section 80(3) of the Act through which he created recovery of Rs. 431,844.00 by amending the existing assessed quantity and value as against original assessed vide assessment order dated 04.11.2013 passed under Section 80(1), in negation of the provision of the Section 29 of the Act, while adducing remarks "Re-assessed in the light of FBR's letter C.No. 4(31)/S.Val/2014 dated 19.08.2014." Ironically the said reassessment order was not transmitted to the appellant as the same was not available on his home page, instead was communicated verbally by respondent No. 1, resultant, after obtaining copy of the reassessment order/note, appellant preferred appeal before Respondent No. 2 on 05.06.2015, which he rejected on the basis of limitation, without controverting the grounds of appeal, despite mandated under law vide order dated 24.08.2015. Para 3 is relevant, hence reproduced here-in-under:--
"3. From the record of the case, I observed that the appeal is time barred by about two hundred and twenty two days, the impugned order was passed on 27.09.2014 and the appeal against the aforesaid order was required to be filed by 27.10.2014 (i.e. within 30 days) in terms of the time limit stipulated under Section 193 of the, whereas the same was filed on 05.06.2015. Thus the appeal is time barred. No cogent reason have been given by the applicant to explain the delay in filing the appeal within the prescribed time period. They have also not sought condonation of delay in the appeal. Under the circumstances I have no reason to condone the inordinate delay in filing the appeal. Therefore, the case is accordingly rejected as time barred."
3.Rival parties heard and case records perused and so the relied upon citations, on the strength of which following issues are framed for decision:
(i)Whether appeal filed before respondent No. 2 by the appellant was barred by time and whether respondent No. 2 was in his right to reject it on the basis of limitation, without evaluating the circumstances in which reassessment order was passed for creating recovery in isolation by the authority not empowered under the provision of Section 32(3) of the Act and Serial No. 3(ii) of S.R.O. 371(I)/2002 dated 15.06.2002?
(ii)Whether respondent No. 1 is empowered to reassess the GD under Section 80(3) of the Act, in derogation of the expression of Section 3DD ibid, S.R.O. No. 500(I)/2009 dated 13.06.2009 and Section 193 ibid?
(iii)Whether reassessment by respondent No. 1 was made strictly as per the spirit of Section 80(2) & (3) of the Act?
(iv)Whether recovery can be created in isolation through a view message without issuance of show-cause notice despite of clear expression enunciated in Section 32(3) of the Act and whether respondent No. 1 was empowered in passing order for creating recovery under section 32(3) of the Act to be read with Serial No. 3(ii) of S.R.O. No. 371(I)/2002 dated 15.06.2002?
(v)Whether the respondent No. 1 was empowered to create recovery of Sales Tax and Income Tax under Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001?
4.That as regard to issue No. (i), the clearance of the consignment in the instant case has been made under the regime of WeBOC by the competent authority defined in Section 2(a) of the Act after passing of valid/legal appealable assessment/clearance order in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002, under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules, consequent to which the appellant obtained delivery from the terminal. Any correspondence under the said regime has to be transmitted online without any exception. In case of contravention or short payment, even show cause is transmitted online and reply to that is pasted by the importer in the space allotted in the said module as "Trader Reply" and order so passed by the adjudicating authority is also transmitted online in consonance with the Section 155Q and Rule 546 of the Act/Rules prior to passing of clearance order. However, in case any contravention is framed after clearance on the strength of audit of the record of the importer by the Directorate General of Post Clearance Audit (DGPCA) or by any other allied department of the FBR, contravention report and connected show-cause notice and order-in-original are issued/passed by the competent authorities manually as the software of WeBOC lacks the such facility after clearance of the goods. The importers (appellant) invariably log in software of WeBOC, when they imports consignments and transmit GD for home consumption under the provision of Section 79(I) and Rule 433 of the Act/Rules and keep tracking the status of the GD for payment of additional duty and taxes if any after passing of assessment order under Section 80 and Rule 438 and subsequently passing of clearance order by the defined authority under the provision of Section 83 and Rule 442 of the Act/Rules. Thereafter they seldom log in for knowing or having information of the already cleared consignments, being passed and closed transaction if in any case the logged in and saw message popping on their home page corresponding to the already cleared consignment, specifically reading as "B/L No. JKT32158160030 dated 14.10.2013 has been sent to cashier for payment. You are requested to pay Rs. 431,844.00" Importers invariably ignore those as the goods had already been cleared and no clearance had to be obtained by him, hence payment of duty and taxes least exist. Instead of completing assessment vigilantly at the time when the goods were at the terminal and under clearance, the Officer of Customs/respondent No. 1 have made a habit to reassess the GDs at the back of the importer/appellants for creating recovery and they keep those as guarded secret, till the time the importer/appellant transmit GD with the Collectorate against their consignment arrived at the terminals and then pressurized them to pay the recovery created by them in isolation, then the importer/appellant came to know about the same and files appeal after retrieving the reassessment order before the respondent No. 2. Although the entire exercise carried out by the Officer of Customs and the respondent No. 1 is without lawful authority and as such of no legal effect. It was/is mandated upon them to intimate in regards to passing of reassessment order and creating of recovery manually in accordance with the adopted procedure of framing contravention report and issuance/ passing of show-cause notices/order-in-original after clearance of the goods through WeBOC regime as enunciated in Section 215 of the Act that Service of Order, decision, etc. shall be served (a) "by tendering the order, decision, summon or notice or by sending vide registered post or the courier service or by any other mode of transmission subject to acknowledgment receipt to the person for whom it is intended or to his agent or (b) if the order, decision, summon or notice cannot be served in any manner provided in clause (a), by affixing it on the notice board of the Custom House", for making the service good/valid and enabling the importers /appellants to avail the remedy under the provision of Section 193 or section 194A of the Act. To the contrary, the aim of the Officers of Customs including Respondent No. 1 keeps the importers/ appellant in dark, for snatching the right of appeal and making the created recovery good/valid, despite having no warrant of law.
5.Upon perusal of the reassessment order dated 27.09.2014, I have observed that despite mandated under law, view message as contemplated in Sections 155Q and 215 of the Act for payment of created recovery amount of Rs. 431,844.00 was not transmitted/served, instead the reassessment order was kept as guarded secret and surfaced only when the appellant intended to file fresh GD for his arrived consignment at the terminal and he was pressurized to pay the recovery created through reassessment, to which he agitated and asked the respondent No. 1 to supply him with the copy of reassessment order and view message through which recovery has been created. He was supplied with the reassessment order sans view message of recovery. On the strength of which he filed appeal before respondent No. 2 on 05.06.2015 as evident from the affixed stamp on the memo of appeal, without any objection of time barred by his office, meaning thereby it was admitted for regular hearing on merit. Hence, it was mandated upon respondent No. 2 to decide the appeal on merit, in consonance with the appeals filed with him by other importers against the reassessment orders detail of which has been incorporated by the appellant in ground 1 of memo. of appeal, which were although barred by time, but were decided on merit, without raising the objection of time barred or rejecting those summarily as time barred. The said act of his was just and in consonance with the Article 10A (Fair Trial) of the Constitution of Islamic Republic of Pakistan. Even otherwise, it is principal of law that Appellate Authority have to examine the reason for delay sympathetically when admittedly registered person was proceeded ex-parte during the adjudication proceeding, as held by ITAPTP in reported judgment 2010 PTD (Trib.) 1491. The case of the appellant is on the same footing as reassessment order was passed by respondent No. 1 ex-parte and in isolation without adherence of due process of law. Likewise in 2010 PTD (Trib.) 1359 it has been held that "Collector was bound to have condoned such delay for the sake of justice and fairplay" and in 2012 PTD (Trib.) 637, it has been held that "the rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and, unless they are un-surmountable; ends of justice always out way the manner of practice and procedure". In the same judgment further held that "there is no doubt that the appeal filed before the First Appellate Forum was time barred by 127 days yet the higher Court has repeatedly held that the cases should be decided on merit instead on technical grounds and technicalities of law and fact should always be avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done". The respondent No. 2 in fact abused vested discretionary powers, which are to be invariably exercised for the benefit of tax payer and that also without evaluating the fact that the registered person/importer does not stand to gain, neither any thing nor a delay on his part give rise to or create a valuable right in favour of the Revenue-department and the judiciary is respected not on account of its power to legalized injustice under the garb of technicalities, but because, it is capable of removing injustice and the tax payer being citizen of Pakistan has a right under its Constitution to expect so. Whereas, the Hon'ble Lahore High Court held in reported judgment 2002 PTD 549. Laser Praxis Deplix Clinic Lahore v. Customs Central Excise and Sales Tax Appellate Tribunal held that delay in filing appeal of the litigant has to be condoned on the strength of the observation made in Controller of Land Acquisition v. Mst. Katiji and others [1987] 56 Tax 130 (S.C. India) by Mr.M.P.Thakkar, J. Speaking for the Court favoured adjusted oriented approach by finding that (i) A litigant does not stands to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happened is that a cause would be decided on merits after hearing the parties. (iii) "Every day's delay must be explained" does not means that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense and pragmatic manner. (iv) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice reserved to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala-fides a litigant does not stand to benefit by resorting to delay infact he runs a serious risk. (vi) It must be grasped that judiciary is respected not on account of its powers to legalized un-justice on technical ground but because it is capable of removing un-justice and is expected to do so" The respondent No. 2 through rejection of appeals of the appellants as time barred, not only gave harsh and unjust treatment. Instead, additionally gave differential treatment, which is tantamount to discrimination and barred under Articles 4 and 25 of the Constitution despite standing on the same pedestal as other importers, whose appeals were decided on merit, without touching the aspect of limitation, validating that he has no urge, will, passion and ability to decide the case/dispute put before him on merit.
6.The respondent No. 2 intentionally and willfully also ignored the settled principle of law by the Superior Judicial fora that no limitations runs against ab-initio void order, despite admitted and apparent position that the recovery was created in isolation without issuance of show-cause notice under Section 180 as contemplated in Section 32(3) of the Act and in usurpation of the powers delegated to the authority under the said provision of Act through clause 3(ii) of S.R.O. 371(I)/2002 dated 15.06.2002, namely Principal Appraiser. These vital defects available in the reassessment order, render it palpably illegal and a such ab-initio, null and void, no limitation runs against such types of orders, litigant is entitled to challenge the vires of such orders immediately upon having the knowledge, which appellant did. I have arrived on the said opinion, while driving assistance from reported judgment 1986 SCMR 962 Rehmat Bibi and others v. Punno Khan and others, 1996 SCMR 2296 Syed Haji Abdul Wahid and another v. Syed Sirajuddin and PLD 1976 Supreme Court 37 Ali Muhammad v. Hussain Bux and another, wherein, the Hon'ble Judges of the Supreme Court of Pakistan "On the question of limitation, referred to a number of decision of Apex Court and held that if an order is without jurisdiction and void then it needs not to be formally set aside. In Yousuf Ali v. Muhammad Aslam Zia and others in reported judgment PLD 1958 SC (Pak.) 104 (1) it was said by this Court "Where the legislature clothes an order with finality, it always assume that the order which it declares to be final is within the power of the authority making it and no party can plead as final and order made in excess of powers of the authority making it, in the eyes of law, such order being void and non existent". In PLD 1965 SC 68 Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (2) it was said that an order without jurisdiction is a nullity in law and it does not require to be set aside formally. Again in PLD 1967 SC 294 Syed Ali Abbass and others v. Vishan Singh and others (3) it was observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalized for not throwing himself again by way of revision or review on the mercy of the authority who were responsible for such excess this being the rule firmly established, the dismissal of writ petition by the learned single judge on finding that the appeal before the Additional Settlement Commissioner was barred by time and in dismissing it he had acted with jurisdiction was not warranted in law." The Hon'ble High Court of Sindh in adherence of the ratio decidendi held in reported judgment 2002 PTD 87 FOP v. Metropolitan Steel Corporation held that "when a Court or a Tribunal assume jurisdiction not vested, its order is void and nullity to law and no limitation runs against a void order". Hence, now it's a legal fiction that no limitation runs against a void and ab-initio order without any exception, akin to the reassessment order passed in the appellant case without lawful authority/jurisdiction. Hence, not enforceable under law and as such, ab-initio, null and void / 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 General of Post Clearance Audit (DGPCA) has been created and its official had been delegated powers through S.R.O. No. 500(I)/2009 dated 13.06.2009 for conducting audit of the importer books of account maintained under Section 211 of the Act under the provision of 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 Act/Rules and prepare audit observation and forward to the importer for clarification and if the reply fail to settle the issue, frames contravention report and forward it 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 respondent No. 1 assumed the powers of officials of DGPCA and conducted the Audit Post Clearance of the Goods Declaration of the appellant under Section 26A while exercising the powers specifically delegated to the officials of the DGPCA. Neither he nor his higher officials are empowered to encroach the sovereign jurisdiction of DGPCA under any circumstances as this will render the formation of DGPCA by the legislature under Section 3DD of the Act, and the powers delegated under SRO No. 500(I)/2009 dated 13.06.2009 as redundant. I have observed with concern that the respondent No. 1 and his higher officials are running a parallel department to the DGPCA in derogation of Section 3DD ibid. This is not permitted under law, by virtue of the fact that if it is left to be perpetuated, anarchy will prevail within the different organs of FBR to encroach powers/jurisdiction of each other, despite having no lawful authority/jurisdiction. This type of intention/act cannot be validated under any circumstances and has to be crushed in the initial stages for maintaining the integrity and sanctity of the different sovereign organs of FBR. Therefore, the re-assessment made by the respondent No. 1 of the Goods Declaration of the appellant after clearance amounts to conduction of audit under section 26A of the to which he is not empowered, rendering his act without power/jurisdiction as such void and ab-initio and coram non judice.
8.Upon passing of assessment order under section 80 and Rule 438 of the Act/Rules, and thereafter passing of clearance order under Section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Act, S.R.O. 371(I)/2001 dated 15.06.2001, it cannot be disturbed by any authority for the purpose of re-assessment, preparing contravention report and adjudication proceedings. The only course left for the respondent No. 1 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Act which empowers an officer of customs below the rank of Additional Collector to file an appeal and in that he could incorporate all of his apprehensions, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, upon receipt of the appeal and after 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 assessed earlier for clearance, is empowered to issue show-cause notice under section 32 ibid to the respondent (importer) as expressed in 3rd proviso to the subsection (3) of Section 193A of the Act. Instead of the prescribed method the respondent No. 1 reopened the assessment/ clearance order under section 195 of the Act, under which powers are either vested with the Board or the Collector of Customs. Even otherwise, 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." In the instant case no appeal has been filed against the assessment order passed by Principal Appraiser dated 04.11.2013 within the stipulated period of 30 days resultant, it attain finality and cannot be disturbed being a past and closed transaction. Therefore, the act and commission of respondent No. 1 is also in derogation of Sections 193 and 195 of the Act, and as such of no legal effect, hence coram non judice. Therefore, I answer to issue No. (ii) in negative.
9.That as regard issue No. (iii), it is beneficial to reproduce Section 80(2) and (3) of the:
(2)An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of the Customs;
(3)if during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment, the goods, shall, without prejudiced to any other action which may be taken under this Act be reassess to duty.
Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), unless subsection (2) is not complied in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re-assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in Section (2) ibid. Upon receipt of documents or the information so transmitted/submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessment. Upon perusal of the import documents, examination report and assessment order by appellant/passed by Appraiser, it has been observed that description and quantity are the same as declared as evident from examination report validating it with the exception of weight found as 5450 kgs as against declared 6442 kgs, on the strength of which Principal Appraiser passed assessment order dated 04.11.2013 while observing in assessment note "declared weight was 6442 kgs whereas found as per PICT weighment slip 5450 kgs therefore, after deduction of tare and keeping in view the mode of packing and in the light of scanned P. List net weight is justifiable, moreover port of shipment and supplier as per B/L and invoice is also Indonesia therefore GD completed accordingly as per VR". No visible misdeclaration in any aspect has either been made by the appellant in material particular nor any illegality has been committed by the Principal Appraiser. In the instant case no re-assessment was warranted under Section 80 (3) of the Act. Even otherwise the remarks of the Respondent No.1 also speaks volumes about playing havoc with the provision of Subsection (3) of Section 80 of the Customs Act, 1969 and which reads as "remarks "Re-assessed in the light of FBR's letter C.No. 4(31)/ S.Val/2014 dated 19.08.2014." I fail to digest that from where the Board derived powers, for issuing orders to the field formation to pass reassessment order under the provision of Section 80(3) of the Act, despite figuring no where in the provision of Sections 25, 80 of the Act and SRO 371(I)/2002 dated 15.06.2002 and Section 179 ibid and 223, which bars the Board from issuing any order/instruction/direction to the adjudicating authority. Hence, it was not mandated upon respondent No. 1 to comply with the order of the Board issued without lawful authority/jurisdiction manifestly in nullity to the provision of Sections 80, 179, 193, 195 and 223 of the Act. He has to act independently without any influence and no authority can direct him to act contrary to the law. It is also amazing to note that how the Respondent No.1 reassessed the goods under Section 80 of the Act despite not being an Appropriate Officer under Section 80 to be read with SRO. 371(I)/2002 dated 15.06.2002. However, the appropriate Officer is indeed empowered to re-assess the GD in case the called documents are proved to be false and so the declaration transmitted under Section 79 (1) of the Act, 1969 and Rule 433 ibid after clearance of the goods but not in the absence of the basic ingredient defined in Section 80 (2) and (3) ibid.
10.The respondent No. 1 also acted in nullity to the provision of Section 29 of the Act. It is of vital importance for reaching at a just decision to visit and understand essence and spirit and constitutional and legislature construction of Section 29 containing expression "Restriction on amendment of goods declaration" reading as:--
Section 29 : except as provided in section 88 no amendment of goods declaration relating to goods assessed for duty on declared value, quantity or description thereof shall be allowed after such goods have been removed from the port area or assigned Customs Reference Number electronically, as the case may be." (Emphasis supplied)
The rationale and legal construction of the above expression is that no amendment under section 205 of the Act, is allowed in the columns of the declared value, quantity or description after removal of the goods from the customs area for home consumption as contemplated in Section 79(I) after passing of valid assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 ibid, or after shipment of the exported goods through GD for export transmitted under Section 130 and Rule 444 after completion of codal formalities defined in Section 131 and Rules 450 of the Act/Rules or wherein Customs Reference Number is allotted to the GD electronically. A cap has been laid on the importer/exporter for obtaining amendment after out of charge of the GD in case of import or shipped in full in case of GD for export or post filing of GD. The phrase "assessed for duty" used in the expression lays restriction on the Customs not to amend itself the contents of Goods Declaration after clearance under Sections 83 and 130 and Rules 442 and 450 of the Act/Rules on the strength of valid assessment orders for levy and duty and taxes under Sections 80 and 131 and Rules 438 and 442 ibid by the appropriate authority defined in Section 2(a) in exercise of the powers vested upon him through S.R.O. No. 371(I)2002 dated 15.06.2002. That the respondent No. 1 while making reassessment of the appellant's GD after clearance of the goods infact amended value to Rs. 1118729 as against assessed Rs. 659,915/- and quantity as 6442 as against 3600 kgs in the GD under Section 205 of the Act, which is in derogation of Section 29 and as such not valid and fail the test of judicial scrutiny. In principle if it is considered for the sake of arguments that the customs is empowered to reassess a GD after clearance of the goods under provision of Section 80(3) without adhering the procedure laid down in Section 80(2), there was no need for the legislature to frame subsection (2) for inserting in Section 80 of the Act. The intention of legislature was not as interpreted by the respondent No. 1. The fact of matter is no reassessment is permitted under Section 80(3) of the Act, once the goods are cleared for home consumption or shipped on board for export. The reassessment is permitted prior to passing of Order of clearance/shipment under Sections 83 and 130 and Rules 442 and Rule 453 of the Act/Rules upon filing of review by the importer/exporter under Rules 441 and 450(3) ibid against the assessment orders of Appraiser/Principal Appraiser before the Principal Appraiser and subsequently before Assistant/Deputy Collector of the Group as the case may be. Therefore, I hold that the reassessment made by Respondent No.1 is tantamount to amendment under Section 205 post clearance /out of charge of the goods, hence, in nullity to the provision of Sections 29, 80(2) and (3) of the Act, besides without any power or jurisdiction under Sections 80, 131 and Rules 438 and 450 of the Act/Rules and S.R.O. 371(I)/2002 dated 15.06.2002 and as such without any lawful authority, hence void and ab-initio. That issue No. (iii) is answered in the negative.
11.That as regard to issue No. (iv), upon transmitting view message dated 04.11.2013 to the appellant for payment of Rs. 101,091.00 on the strength of reassessment order made under Section 80 and Rule 438 of the Act/Rules for obtaining delivery of the consignment, which appellant paid on 04.11.2013, consequent to which clearance order under Section 83 and Rule 442 was passed by the competent authority expressed therein and in SRO. 371(I)/2002 dated 15.06.2002 and view message to the said effect was transmitted on 04.11.2013 reading as "GD: KAPE-HC-36033-30.10.2013 has been sent to gate staff for gate out." Consequent to which the appellant clearing agent obtained the delivery on the same date. After lapse of about 11 months the respondent No. 1 after reassessing the GD created recovery of Rs.431,844.00 sans transmitting of view message, which would had invariably contain the direction to the appellant reading as "B/L No. JKT32158160030 dated 14.10.2013 has been sent to cashier for payment. You are requested to pay Rs. 431,844.00", when infact the act of clearance stands concluded on 04.11.2013. This view message after post clearance is by all means falls within the definition of demand notice for recovery of short paid amount of duty and taxes due to commission of inadvertence by the Officials of Clearance Collectorate. Such type of recovery can only be created upon passing of an order after issuance of show-cause notice under Section 32(3) of the Act, expression of which read as:--
"Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice".
In the instant case no show-cause notice has been issued despite mandated under law, issuance of show-cause notice is pre-requisite and cannot be dispense with under any circumstances. While creating recovery through view message the respondent No. 1, infact committed violation of the provision of Section 32(3) of the and principle of natural justice rendering the recovery so created without any lawful authority and as such void and ab-initio in the light of reported judgment referred by the appellant in grounds incorporated in para 5(h) supra and the reported judgment 2006 PTD 978 Forte Pakistan (Pvt.) Ltd., Karachi v. The Director General of Intelligence and Investigation (Customs and Excise ), Karachi and another, wherein it has been held that "service of notice under section 32 of the is a condition precedent for initiation of proceedings, in the absence of notice under section 32 on the importer the entire proceeding initiated by the Adjudicating officer and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction, void and in operative. The entire proceeding are accordingly struck off" and the Hon'ble Supreme Court of Pakistan in judgment reported as 2001 SCMR 838. Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electric Lamp MFG Co. Ltd., Peshawar held that "demand notices in the absence of statutory show-cause notices were without lawful foundation. It is well settled proposition of law that a thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all since pre requisite show-cause notices as required by law have not been served on the respondents, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore, in the absence of statutory notice, demand notices dated 25.07.95 and 26.07.95 were without lawful authority and thus of no legal effect." In accordance with the ratio decidendi by the judicial fora. I therefore hold that the recovery/demand notice communicated through reassessment order dated 27.09.2014 is being issued in isolation/ vacuum and as such without any lawful authority, hence, null, void and ab-inito and the structure built upon this order has no legal value. Therefore, I answer to issue No. (iv) in negative.
12.That as regard to issue No. (v), since the recovery so created by the respondent No. 1 falls within the ambit of Section 32(3) of the Act, the authority enjoying the powers under this section is Principal Appraiser under Serial No. 3(ii) of S.R.O. 371(I)/2002 dated 15.06.2002. To the contrary, the respondent issued recovery/demand notice through view message dated 24.03.2013 by usurping the powers of his subordinate, which is not permitted under law. Nobody is allowed to usurp the powers of his subordinates as held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others and 2009 PTD 1083 that "Superior authority cannot exercise the power of his subordinates for adjudication purpose ..powers of sub-ordinate exercised by superior authority is held as to be without jurisdiction beside usurpation". Rendering the transmitting of view message for creating demand/recovery in the garb of reassessment under section 80(3) is without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517, PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, 2004 CLD 373, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636,, 2011 PTD (Trib) 2114, 2011 PTD (Trib) 2557, 2014 Supreme Court 514. The answer to the issue No. (v) is in negative.
14.That as regard to issue No. (vi), the respondent No. 1 through view message dated 24.03.2013 also created recovery for the short paid Sales Tax and Income Tax due to inadvertence, while reassessing the GD under Section 80(3), while ignoring the fact that section 80(3) only speaks about "duty" not the taxes for which the appropriate authorities as expressed in Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance are "Officer of Inland Revenue". Customs officials figure nowhere. Resultant, he is not empowered to create recovery of Sales Tax and Income Tax Post Clearance. To the contrary, customs is infact empowered to collect Sales Tax and Income Tax leviable on the imported goods in the capacity of collecting agent in exercise of the powers vested under section 6 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. Through the view message he created recovery of Sales Tax and Income Tax despite having no power, rendering the view message dated 24.03.2013 for recovery of taxes without powers/jurisdiction, by virtue of exercise of powers not vested to him under Section 11 and the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, therefore same is not correct and valid, hence void and ab-initio. The exercise of powers by the authority has to be within the expressed provision of the Act/ Ordinance as per laid down principle by the Hon'ble Supreme Court of Pakistan in 2002 PTD 2457 that " the thing should be done as they are required to be done, or not at all", PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner", PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A. Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted." The super structure built on such foundation no matter how strong it is has to fall. Refer to PLD 1996 Karachi 68, which laid down that "where the initial order or notice was void all subsequent preceedings, orders or super structure built on it were also void. In reported judgment 2006 PTD 978 it is held that "the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The Apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---all successive orders based upon it illegal and liable to be quashed. The issue No. (vi) is answered in negative.
14.To what have been stated/discussed and observed herein above, particularly the interpretation of law and legal preposition discussed in the light of prescribed law and observations made thereon and to follow the ratio decidendi, I hold that the re-assessment orders/view messages passed/transmitted by the respondent No. 1 in GDs of the appellants and as well as the orders in appeal passed by the respondent No. 2 suffers from grave legal infirmities, therefore are declared to be illegal, null and void and hereby set-aside and appeals are accordingly allowed with no order as to cost.
15.Judgement passed and announced accordingly.
SA/74/Tax(Trib.)Appeals allowed.