EMRAN MOMIN TOKHI LTD. VS The PRINCIPAL APPRAISER, 2019 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 704 (2018)

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

----Ss. 129 & 180---Customs Rules, 2001, R. 473---Afghanistan Pakistan Transit Trade Agreement, 2010, Art. 3, Para 2---Transit trade---Processing of Afghan Transit---Trade---Misinformation---Show-causenotice---Procedure---Jurisdictionofcustomsauthorities---Scope---Appellant, importer of Afghanistan, imported miscellaneous goods and transmitted Transit Trade Information---Examination of goods transpired that their weight and quantity was in excess to the information---Deputy Collector of Customs (Adjudication) issued show-cause notice and ordered for confiscation of goods, for submission of insurance guarantee and imposed penalty---Collector of Customs (Appeals) dismissed the appeal against aforesaid order---Validity---If any discrepancy was found in documents or goods corresponding to Transit Trade Information during the course of scrutiny or upon examination, said fact had to be reported to Directorate General of Transit Trade for initiation of legal proceedings, by virtue of the fact that the goods had to be transited without levy of duty and taxes---No consequences flow in the entire procedure for exchequer of Pakistan---Directorate General of Transit Trade could take cognizance of any discrepancy in the documents/goods and it was competent to issue show-cause notice to the clearing agent of the importer of Afghanistan for seeking justification of the discrepancy and if no convincing explanation was given, pass an observation for preparation of complaint for submission with the Ministry of Commerce, Pakistan, for onward submission with the Ministry of Commerce, Afghanistan, for placingbeforeAfghanistanPakistanCo-ordinationAuthorityinterms of para. 2 of Art. 3 of Afghanistan Pakistan Transit Trade Agreement, 2010---Appellate Tribunal vacated the show-cause notice and set aside the orders passed thereon---Appeal was allowed accordingly.

(b) Administration of justice---

----Public functionaries---Jurisdiction---Superior officer is not empowered to exercise quasi judicial powers of his subordinate in the matter of adjudication.

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

----Ss. 2(la) & 129---"Goods Declaration and Transit Trade Information"---Distinction---Scope---Documents transmitted to the Directorate General of Transit Trade for transit of the goods through Customs Computerized System is not "goods declaration" as defined in S. 2(la), Customs Act, 1969---Documents transmitted for transit under the provision of S. 129, Customs Act, 1969 cannot be construed as a "goods declaration" under any pretext or even through inapt interpretation.

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

----Ss. 2(s), 129 & 156(1)(64)---Customs Rules, 2001, Rr. 484Q & 484D---Afghanistan Pakistan Trade Transit Agreement, 2010---Transit trade---Removing of goods from terminal---Pilferage of goods during the course of transit---Non-submission of Cross Border Certificate---Smuggling---Scope---Clause 64 of S. 156(1), Customs Act, 1969 and R. 484Q, Customs Rules, 2001 are applicable only in such situation wherein the importer of Afghanistan or his clearing agent removes the goods from the terminal/port in clandestine manner without completion of formalities of transit trade envisaged in Afghanistan Pakistan Transit Trade Agreement, 2010 or pilfered those during the course of transit or wherein Cross Border Certificate was not submitted along with verification of the Afghanistan Government as per expression of clause (b) of R. 484D(1) of the Customs Rules, 2001---Concerned person shall be charged under S. 2(s) & S. 129, Customs Act, 1969 and shall be awarded punishment for criminal intent under Cl. 64 of S. 156(1), Customs Act, 1969.

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

----Ss. 32 & 32A---Mis-declaration---Fiscal fraud---Scope---Where there is no revenue loss, provisions of S.32(1)(2) or 32A, Customs Act, 1969 cannot be invoked. [p. 716] G

PLD 1996 Kar. 68; 2003 PTD 52 and 2007 PTD 2215 ref.

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

----Ss. 168, 79 & 129---S.R.O. No. 499(I)/2009 dated 13.06.2009---Seizure of things liable to confiscation---Declaration and assessment for home consumption---Transit trade---Scope---S.R.O. No.499(I)/2009 dated 13.06.2009 has no application to the transited goods.

(g) Administration of justice---

---Thing should be done as it is required to be done or not at all.

2002 PTD 2457; PLD 1971 SC 61; PLD 1973 SC 236; PLD 1964 SC 536; 2003 SCMR 1505; Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129; PLD 1996 Kar. 68; 2006 PTD 978 and PLD 1971 SC 184 fol.

Nadeem Ahmed Mirza for Appellant.

Raja Shakeel for Respondents.

Date of hearing: 13th September, 2018.

JUDGMENT

MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I).--Through this Judgement, I intend to dispose off the instant appeal bearing No. K-980/2016 filed against Order-in-Appeal No. 130/2016 dated 23.02.2016 passed bythe Collector of Customs (Appeals), Karachi (respondent No.3), maintaining the Order-in-Original No. 419671 dated 16.09.2015 passed by Deputy Collector of Customs, Adjudication-II, Karachi (respondent No. 2) in the capacity of Principal Appraiser.

2.Brief facts of the lis are that the appellant is a importing company of Afghanistan and in the said capacity is registered with the Ministry of Commerce and Industry of Afghanistan (MOCA), during the course of his business activities he imported a consignment of 1950 cartons, comprising of 77950 Pieces weighing to 35800 kgs of miscellaneous goods (pad lock, pencil, solar battery, solar fan, plastic roll and bulb) stuffed in 2x40" containers bearing Nos. BSIU-2572091 and KMTU-7261909, valuing to US$ 11390.00 C&F Karachi in transit to Afghanistan against invoice No. EMTL-530/2015 dated 20.03.2015 B/L No. KMTCNEB0463530 dated 26.03.2015 from China. Upon receipt of documents from the shipper, he delivered those to his clearing agent Messrs Arif Associates, Karachi (CHAL No.1976) for transmitting Transit Trade Information (TTI) fortransit to Afghanistan under the provision of Section 129 of the Customs Act, 1969(Act) and Rule 472 of Sub-Chapter VII of Chapter XXI of Customs Rules, 2001 (Rules)inserted in the Rules through S.R.O. 121(I)/2014 dated 24.02.2014, with the Directorate General of Transit Trade (DGTT) which he did on the strength of the documents supplied to him by the appellant. The information so transmitted was accepted and DGTT allotted number ITTK-AT-25366 on 23.04.2015 to the TTI. After receipt of which on his desktop, the Appraiser concernedinstead of completing the TTI opted to get the goods examined, which transpired that the weight of the pad lockwas found in excess by 15200 kgs (45%) and solarrechargeable batteriesexcessby 6000 kgs(51.72%)includingadditional item namely valves 2000 kgs for tubeless tires and 200 kgs of circuit breaker i.e. cumulatively in excess by 23500 kgs, which comes to (55.64%) as against transmitted in TTI, the said fact was reported by the nominated officer to the Principal Appraiser, DGTT (Respondent No. 1) for proceeding under Sub-Rule (6) of Rule 473, whoframed contravention reportwith the allegationthatthe information of the goods transmitted in TTI is found in excessin weight, inclusive of availability of 2 excess item for which no information was transmittedthrough TTI, which is tantamount to contravention of the provision ofSections 127, 128, 129, 192and 209 of the Act and Rules 473 and 484-Q of the Rules, punishable under clauses (63) and (64)of Section 156(1) of the Act and transmitted that to the Additional Director, Law, who after assenting it transmitted torespondent No. 2, who issued show-cause notice dated 23.07.2015 in the capacity of Principal Appraiser, containing the same fact and invoked provision of the Actand Rules without any slightest change of even comma and full stop, which was replied by the consultant vide letter dated 25.07.2015, through which he challenged the power/jurisdiction of respondent No. 2 among othersin regards to levelled allegation and the invoked provisions of the Act/Rules. The respondent No. 2 ignored the submission in totality and passed order dated 23.06.2015, through which he held the charges established as levelled in the show-cause notice and ordered confiscation of the goods subject to redemption of those on payment ofredemption fine of Rs.1305385.00 being20% ofthe value of the goods in addition with the imposed penalty of Rs. 50,000.00 andsubmission of insurance guarantee for the excess found goods equivalent to leviableduty and taxes on the goodsif cleared for home consumption under Section 79(1) of theAct. Amazingly the transmitted order was comprised of 10 pages having no conclusion whatsoever of the respondent No. 2, with the exception of mention of imposed fine and penalty on the first page of the order. Since, the goods were suffering from container detention/rental and terminal demurrage/storage charges, appellant paid that despite unwarranted under law and obtained the delivery subject to assailing the order after obtainingcomplete copy from respondent No. 2, after lot of pursuance, the respondent No. 2handdelivered copy of ordercontaining no date or number on18.11.2015. On the strength of which appellant filed appeal before respondent No. 3 on 01.12.2015. Who on the date of hearings fixed for 15.12.2015, 03.01.2016, 27.01.2016 and 02.02.2016 put a specific question what kind of order is this? As this is not containing opinion and operative para, the appellant invited his attention to the supplied copy of the order by the respondent No. 2, which he accepted and thereafter raised query that the matter before him is not the same as to the appeal against which he passed orders maintaining orders of respondent No. 2 as correct. The consultant and the representative of respondent No. 1 confirmed the said fact. Consequent to which he informed that he is keeping the appeal in abeyance for decision till the time Tribunal passed an order in the appeals filed against his order irrespective of the said understanding, and to the fact that the appeal was in time, the respondent No. 3 passed order dated 23.02.2016 through which he rejected the appeal as barred by time despite not and accepting the said factas correct, on the basis of formed misconceived opinion. Para 5 is relevant which is reproduced here-in-under:--

"I have examined the case record. The appellant were penalized vide the impugned order for bringing in item which were either not declared or were found in excess the order was passed on 16.09.2015 , wherein, the appealhas been filedon 01.12.2015 and as such the same is not entertainable owing to limitation provided under section 193 of the Customs Act, 1969. The said order was transmitted to the respondents in accordance with 215(c) of the Act. The grounds for condonation of delay are therefore not plausible. There is no reason to infer with the orders the appeal failed."

3.The appellant filed the instant appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearingargued the casestrictlyin 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, deemed to be termed as cross appeal filed under subsection (3) by the department as expressed in subsection (4) of Section 194A of the Act. 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.

4.Rival parties heard and the case record perused:--

(i)Whether appeal filed before respondent No. 3 by the appellant was barred by time and whether he was in his right to reject it on the basis of limitation, without evaluating the fact that the order-in-original was not transmitted/served in totality rather half baked having no observation of respondent No. 2 and operative para, wherein charges were held as established and fine and penalty was imposed?

(ii)Whether respondent No. 2 was empowered to assume the powers of Principal Appraiser DGTT despite posted as Deputy Collector of Customs, (Adjudication-II) in the light of settled principle laid down by the Superior Judicial Fora and as to whether he has jurisdiction to adjudicate the case in derogation of para 3(d) of Notification No. S.R.O. 886(I)/2012 dated 18.07.2012? And whether the show-cause notice in the instant case has been issued by the authority defined in the proviso of Sub-Rule (6) of Rule 473 of Sub-Chapter VII of Customs Rules, 2001?

(iii)Whether Goods Declaration as defined in section 2(la) has to be filed for transit goods as to filed for home consumption under the provision of Section 79(1) of the Act?

(iv)Whether the goods found in excess during the course of examination as against reported in TTI for transit can be detained/confiscated by the respondents under Sections 186 and 179 of the Act to be read with Rule 484-Q ibid and clause (64) of Section 156(1) ibid on the presumption that these shall be smuggled back in Pakistan or pilfered during the course of transit? And whether fine as notified in S.R.O. 499(I)/2009 dated 13.06.2009 could be imposed on transit goods meant for Afghanistan akin to goods imported into Pakistan for home consumption under the provision of Section 79(1) of the Act?

5.As regard to issue No. (i), It has been observed that the opinion formed by the respondent No. 3 is without any substance that, the Order-in-Original was transmitted to the appellant by respondent No. 2 in accordance with the expression of Section 215(c) of the Act, which read as "incase of electronic orders, decisions notices or summons, when these have been sent to the recipient from Customs Computerized System". The order annexed with the appeal as Exhibit "B" although transmitted to the appellant but not complete as evident from para 6 of the order, it is completely silent in regards to the observation of the respondent No. 2 and the operative part. Resultant it cannot be termed as an order qualifying in the legal parlance transmitted to the appellant in terms of Section 155Q and Section 215(c) of the Act. Complete order was neither transmitted nor dispatched through courier to this date, instead after lot of pursuance it was hand delivered by the respondent No. 2 to the consultant of the appellant on 18.11.2015, on the strength of which appeal was filed before respondent No. 3 on 01.12.2015, i.e. within 13 days from the date of receipt of order. Resultant, the appeal before him was filed within time and not time barred as held by respondent No. 2. This alone factrendered the order-in-appeal and the preceding order without lawful authority andjurisdiction as it is settled law that mere dispatching/transmitting half bakeddocuments/Order-in-original is not enough, unless it is served with observation and concludingpara i.e.as passed to the appellant or his consultant/advocate as per judicious norms and provision of Section 215 of the Act, the service was infact made on 18.11.2015, vindicated from the order passed by the respondent No. 3 in Order-in-Appeals Nos. 417 to 462 of 2005 dated 29.02.2005 (Service Fabric Ltd., Lahore v. Assistant Collector of Customs, S.S.C.C Exports) and 188/2007 dated 26.03.2007 (Abdullah Garments (Pvt.) Ltd. v. The Assistant Collector of Customs, (Exports), Karachi. The respondent No. 3 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 order was not transmitted in totality and the show-cause notice and order have been issued/passed by respondent No. 2 in derogation of the provision of Section 179 of the Act and S.R.O. 886(I)/2012 dated 18.07.2012 and amended Sub-Rule (6) of Rule 473 of the Rules.Apparently visible on the face of the show-cause notice/order. These vital available defects render these palpably illegal and a such ab-initio, null and void. No limitation runs against such type of orders, litigant is entitled to challenge the vires of such type of orders immediately upon having the knowledge/receipt of order through any mode or manner, which appellant did. Hence, now it's a legal fiction that no limitation runs against a void and ab-initio order without any exception, akin to the half baked order transmitted by respondent No.2 the appellant and that also in the absence of availability of power/jurisdiction, which is not enforceable under law and as such ab-initio, null and void/coram non judice. The issue No. (i) is answered in negative.

6.As regard to issues No. (ii), it is imperative to reproduce proviso toSub-Rule (6)of Rule 473of theRules,andwhichis "Provided that where some discrepancy has been found, the AT GD shall be marked to the concerned Principal Appraiser for further necessary action under the law including initiation of legal proceeding." Upon bare reading of the proviso, it is vividly clear that in case of discrepancy found in the submitted documents or goods corresponding to those in any aspect in the transmitted TTI during the course of scrutiny of those or upon examination, said fact has to be reported to respondent No. 1 for initiating legal proceeding, by virtue of he fact that the goods are still lying in the terminal and have to be transited without levy of duty and taxes. No consequences flows in this entire procedure for exchequer of Pakistan. The proceeding for rectification of the discrepancy through amendment or by securing insurance guarantee for the amount ofduty and taxes levied on the excess found goods on the value determined by the Officials of DGTT on the strength of data maintained under Rule 110 of Customs Rules, 2001 or ValuationRuling issued by Director, Directorate General of Valuation under the provision of Section 25A of the Customs Act, 1969,subject to its cancellation/return upon receipt of T-1 report, as per the contemplation of clause (b) of Rule 484-D(1) of Rules, bearing cross reference of TTI filed in Pakistan and the certificate to the effect that the transit goods had crossed border and the said effect had been fed in the systemby the Cross BorderVerification Officer (CBBO). Initiation of legal proceeding in case of discrepancy against the importer of Afghanistan through his clearing agent rest with respondent No. 1. It is for him, to take cognizance of the discrepancy found in the documents/goodsand incase of need he is competentto issue show-cause notice himself to the clearing agent of the importer of Afghanistan for seeking justification for the found discrepancy and if i.e. not convincing, pass an observation, forpreparation of complaint for submission with the Ministry of Commerce Pakistan for onward submission with the MOCA for placing before Afghanistan Pakistan Co-ordination Authority in terms of para 2 of Article3ofAfghanistan Pakistan Transit Trade Agreement, 2010. In the instant case althoughthe respondent No. 1took the cognizance of the issue, instead of proceeding himselfdespite being competentunder para3(d)of S.R.O.886(I)/2012 dated 18.07.2012 opted to frame contravention report instead of complaint and forwarded to Additional Director Law, who routed it to the respondent No. 2, who issued the show-cause notice and subsequently passed order in the capacity of Principal Appraiser, to which he is not empowered being a Deputy Collector of theCollectorate of Customs Adjudication-II, who is even otherwise not empowered to adjudicate the cases where there is technical violation of import and export having no revenue loss as expressed in para 3(d) of S.R.O.886(I)/2012 dated 18.07.2012. It is settled principle of law that the Superior Officer is not empowered to exercise quasi judicial powers of his subordinate in the matter of adjudication and this has been held on countless time by the Superior Judicial Fora in reported judgment referred by the appellant in sub-grounds (e) to (g) of ground (3) of memo. of appeal and which are applicable on the instant case with full vigor. Therefore, I hold that the show-cause notice has not been issued by the authority defined in proviso of Sub-Rule (6) of Rule 473 of Rules. Hence, without power/ jurisdiction and as such void and ab-initio. The issuesNo.(ii)is answered in negative.

7.As regard to issue No. (iii), the documents transmitted to the DGTT for transit of the goods to Afghanistan through CCS is notGoods Declaration as defined inSection 2(la) of the Act reading as"means a goods declarationfiled under Sections 79, 104, 121, 131, 139, 144 or 147 and includesa goods declarationelectronically filed"i.e. for home consumption, clearance of bonded goods for home consumption, transshipment of goods without payment of duty,clearance of exportation, declaration by passenger or a crew of baggage, label or declaration in respect of goods imported or exported by post, and entry of coastal goods and online for any other purpose either for import/ export to/from Pakistan e.g.Manufacturing Bond, Export Processing Zone etc., Resultant, in the absence of availability of Section 129 of the Act in the definition of Goods Declaration given in Section 2(la), the documents transmitted for transit under the provision of Section 129 of the Act cannot be construed as a Goods Declaration under any pretext or even through inapt interpretation. The documents transmitted for transit is in fact TTI, evident from the number given on that reading as ITTK- AT (Information Transit Trade Karachi- Afghan Transit). Hence, I hold that the documents transmitted for transit to Afghanistan is not Goods Declaration as defined in Section 2(la) of the Act.The issue No.(iii)is answered in negative.

8.As regard to issue No. (vii), prior todeliberationon theissue, it isbeneficialto reproduce clause (64) of Section156(1)andRule 484Q ofSub-Chapter VIIof Chapter XXI of Custom Rules, 2001 forbetter understandingofthe essenceand spirit of theseand so the applicability.

9.From meticulous study of the above, it is observedthatthese areapplicable in such like situation, whereinthe importer of the Afghanistan or his clearing agent remove the goods from the terminal/port in clandestine manner without completion of codal formalities of transit trade envisaged in Afghan Pakistan Transit Trade Agreement, 2010 and Rules or pilfered those during the course of transitor wherein, cross border certificate is not submitted along with verification of the Afghanistan Government as per the expression of clause (b) of Rule 484-D(1) of the Rule. In these circumstances the concerned person shall be charged under Section 2(s) and Section 129 of the Customs Act, 1969 and have to award punishment for the criminal intent under clause (64) of Section 156(1) of the Act. The case in hand is not of the one deliberated upon, instead is a case where excess goods found during the course of examination as against shown in the TTI and which are lying in the terminal. It is immaterialthat the goods so foundare in excessas thosehas also to beallowed to be transited without payment of duty and taxes, upon submission of insurance guaranteeof the amount of the leviable duty and taxes on the goods imported for home consumption by a Pakistani importer under the provision of section 79(1) ibidon the valuedetermined by the Officials ofDGTT on the basis ofvalue available in datareservoirof the Clearance Collectorateunder Rule 110 of the Rulesor with the application of Valuation Ruling issued by Director, Directorate General of Valuation under section 25A of the Act.Application of Rule484Qin such like casesis out of contextdue to the factthat no contraventionof the provision ofSection 129 of the Acthas been madeby the appellant.Beside Rules framed for the clearance of transit trade goods cannot be made a tool for creating impediment in implementation of the provision of the statute. Although these are to be compliedsubstantially "but they are not to be applied and operated as "stumbling block"instead of "stepping stones"they shouldalso not beused simply to trap people by technicalities of these rulesinstead of advancing the purpose for which they are framed." This has been held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1989 Supreme Court 222 Nishat Mills Ltd. v. Superintendent of Central Excise Circle-II and 3 others. The application of Rules in the case of appellant has been made as stumbling blocks, on the presumption that the excess found goods shall be pilfered during the course of transit. No case can be initiated either on assumption or presumption, rather should be based on solid tangible evidence.The respondents were not within their right to hold the consignmentnor to detained/confiscated in the light of the judgment of theSupreme Court of Pakistan reported as PLD 1993 Karachi 93 Najab ZarabLtd v. GOP and 1996 SCMR 727 FOP v. Jamaludinto clear the stockinvolved in the petition for immediate transitto Afghanistaninspiteof the objection of the Government of Pakistanthatin thesetyresof Indian originwere importedand presumption was that that these shall be smuggled back to Pakistan and the Hon'ble High Court of Sindh in order dated 27.10.2010 in C.P. No.D-2410 of 2010 to allow transit of the seized liquor by the Directorate General of Intelligence-FBR, shown in TTI for Transit to Afghanistan as mineral water. In our view the proper course which should had been adopted by the respondent would had been to allow the transit and report the said fact to the clearance port of the Afghanistan through diplomatic channel. It is of vital importance to adduce thatnone of the Customs Authorities operatingat Karachifor clearance of the imported goods andEnforcement and even Directorate General of Intelligenceand Investigations-FBR are empowered either to hold or detain or confiscate/examine the goodsmeant for eventransshipmentfalling under the provision ofSection 121, which is synonymous toSection 129 and read as:--

"Transshipment of goods without payment of duty:-

(1) Subject to the provision of section 15 and the rules, the appropriateofficer may, on application by the owner of any goods imported at any customs station and specially and distinctly manifested at the time of importation as for transshipmentto some other customs-station or foreign destination, grant leave to transship the same without payment of duty, ifany, chargeable on such goods with or without any securityorbond for the due arrivaland entry of the goods at the customs station of destination."

10.The transshipment goods from Karachi Port to Dry Ports of Pakistan are akin to the transit to Afghanistan falling under the ambit of Section 129 of the Act.Transshipment of the goodstoDry Portsof Pakistan for clearance for home consumptionunder the provision ofSection 79(1)ibidhave to be allowed without payment of duty and taxes without any security or bond, whereas,goodsmeant for transit to Afghanistan are subject to submission of insurance guaranteeto the extent of the amount of duty and taxesleviable thereonunderFirst Schedule to the Act as are leviable on the goods imported in Pakistanfor home consumption or any other, returnableafter cancellation upon receipt ofconfirmation to the effect that the goods have been crossedborder. In a case where, the Customs Officials at Karachi detain a consignment of Messrs Famous Corporation, which was meant for transshipment, on the pretext that substantial mis-declaration has been made by the importer. The importer approached the Hon'ble High Court of Sindh which held in reported judgment 1989 MLD 2322 that "where the goods were meant for transshipment to Lahore Dry Port, it cannot be examined by Customs Officials at Karachi. Customs Officials may convey the information to the Dry Port Authority where the Customs Official can examine the question whether there has been factually any contravention of the Customs Laws or any other law and may take action against the petitioner if so warranted. If the consignment has already been examined by the Customs Officer at Karachi, the same may be released and may be forwarded to the Dry Port along with report if any. Similarly, in case relating to MessrsM. Hamidullah Khan, the Directorate General of Intelligence and Investigations detained a consignment of transshipment on the pretext that the marks and number of the packages on the bill of lading are not in accordance with the marks and number available on the packages of the goods and as such they are empowered to examine the goods for framing contravention report for the purpose of adjudication. The importer filed a petition in the High Court of Sindh which heldin reported judgment 1992 CLC 57 M. Hamidullah Khan v.Directorate General of Customs Intelligenceand 03 others that""We have already reproduced above the letter containing the instructionsissued bythe C.B.R. regarding transshipment of imported cargo toup-country dry ports. After going through the same we are of the view, that under sub-paragraph (i) of the above instruction, if the address of the party to be notified to disclosed in the bill of lading as of an up-country destination or the marks and numbers on the bill of lading indicate an up-country destination via , Karachi, then in that case the consignment cannot be detain at Karachi. However, if any mis-declaration or suspected contravention is discovered in respect of such consignments. The information is to be conveyed to the respective Collector of customs or Deputy Collector of Customs, Incharge of Dry Port or the Directorate of Intelligence at the dry port. These instructions are applicable both in cases where either the notifying party is indicated in the bill of lading is situated in up-country destination, or the shipping marks on the consignment indicate the up-country destination via Karachi. In the case before usit is admitted pointation that the bill of lading was allowed to be amended under section 45 of the Customs Act and the name of the notifying party has been shown as Allied International, Lahore and therefore in terms of the instruction referred to above transshipment of consignment to the dry Port, Lahore should have been allowed. Inour viewthe absence of shipping marks on the consignment, could not give jurisdiction to the Directorate of Customs Intelligence, Karachi to detain the consignment at Karachi Port when the address of notifying part was shown at Lahore, in such a case if the respondents had discovered any contravention of custom law by the importer they should have allowed the consignment to proceed to its destination namely the dry port at Lahore and notified by theCollector or Deputy Collector of Customs at Dry Port as was required underthe law." The High Court of Sindh in yet another judgmentreported as 2003 PTD 14 N.B. Trading Company, Sambrial, Sialkot v. Collector of Customs, Appraisement and others held that "where there is an information of contravention of Customs, Law, it is to be passed to the respective Dry Port where the imported consignment is destined to which can take action in accordance with an as warranted in law. The action of Customs Officials at Karachi detaining and reopening the said consignment is legally unsustainable, it is without lawful authority and therefore set aside. Therefore it is being held that, neither any action against the appellant was warranted under Rule 484Q or clause (64) of Section 156(1) of the Customs Act, 1969 and detention and confiscation of the goods is declared to be without power/jurisdiction and lawful authority.

11.The case in handis of transit trade,on whichno duty and taxesare either leviableor payable under theFirst Schedule to the Act,Sales Tax Act, 1990and Income Tax Ordinance, 2001and the Rules and Regulation framed there-under. Meaning thereby, thatthe question of revenue loss is non existent, validated from Serial No. (2) ofSection 1 of the Act.It is settled proposition of lawthat where there isno revenue lossprovision ofSection 32(1) (2) or 32A of the Act arenot applicableand this has been held in unequivocalterms by the Hon'ble High Court of Sindh and Supreme Court of Pakistan in judgments reported at PLD 1996 Karachi 68, 2003 PTD 52and 2007 PTD 2215, and which are applicable with full forcein the case of the appellant. I, have also noted with concern that the respondent No. 2 imposed redemption fine @ 20% of the value of the goods under S.R.O. 499(I)/2009 dated 13.06.2009, without realizing that it has been issued by the Board specifically for the imported goods, clearance of which is being sought by the importer for home consumption under the provision of Section 79(1) and Rule 433 of the Act/Rules and not for transit goods, falling under the provision of Section 129 of the Act. Therefore, S.R.O. 499(I)/2009 dated 13.06.2009 has nothing to do with the transited goods, imposing penalty under the said SRO is manifestly unwarranted. Hence, without lawful authority and jurisdiction and as such void and ab-initio and of no legal effect. The issue No. (iv) is answered innegative.

12.It is of paramount importance to adduce that it is settled proposition of law that a thing should be done as it is required to be done or not at all as held by Superior Court of Pakistan in umpteenth reported judgments .The Hon'ble High Court of Sindh held in 2002 PTD 2457 that "the thing should be done as appellant are required to be done, or not at all". Whereas, the Apex Court held in judgment PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactmentprescribing howsomething is to be done, would invalidatething being donein some other manner". InPLD1973 Supreme Court 236"it is now well established that where an inferior Tribunal or Court hasacted wholly without jurisdiction or taken any action "beyond thesphere 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 saythe 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 ofE.A Avansreported asPLD 1964 SC 536 "where it has been unambiguously and categorically heldthat 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. Thesame observation has beenmade by the Hon'ble Supreme Court ofPakistan in the CivilPetition filed by Director General of Intelligence and Investigation and others v. MessrsAl-Faiz Industries (Pvt.) Ltd. and others reportedas 2006 SCMR 129 "if the law had prescribedmethod 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 proceedings, orders or super structure built on it were also void. In reported judgment 2006 PTD 978it is heldthat "the entire proceeding initiated by the Adjudicating authorityand 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.

13. Onthestrengthoftheabovedeliberationandgainingstrength from the law laid down by the Superior Judicial Fora particularly the interpretation of law, legal propositions andobservations made thereon and to follow the ratio decidendi observed by the Superior Courts, I hereby vacate the impugned show-cause notice, and set aside the order passed thereon, during the hierarchy of the customs being illegal, void and ab-initio, appeal isallowed with no order to cost.

14. Judgment passed and announced accordingly.

SA/110/Tax(Trib.)Appeal allowed.