MUHAMMAD ARIF MOTON (MEMBER JUDICIAL) - This rectification application is filed by Additional ^Collector of Customs, Model Customs Collectorate of PaCCS, Custom House, Karachi under Section 194-B(2) of the Customs Act, 1969 against the order dated 31.7.2009 passed by this Tribunal in Customs Appeal No. K-466/2008, whereby the appeal was allowed and Order-in-Original and Order-in-Appeal passed by Additional Collector of Customs, (Adjudication) Collectorate of Customs of PaCGs/Collector of Customs (Appeal) were set aside.
3. Hence this application filed by the Applicant on the grounds that:- QUESTIONS OF FACTS TO BE DETERMINED BY THE TRIBUNAL:
(i) Whether the learned Member (Judicial) of the Appellate Tribunal has correctly read the record to treat that the goods imported against a valid instrument of transaction value or whether the respondent declared value is "true payable transaction value" to be considered as customs value for the purpose of assessm ent?
(ii) Whether on the facts and circumstances of the case Member (Judicial) has not made a crucial mistake to order for the determination of value in terms of Section 25(1) of the Customs Act, 1969, whereas the importer himself prayed for assessment in terms of Section 25(6) read with 25(9) of the Customs Act, 1969, as per data and had not requested for the acceptance of declared value and rather vide their application/counter submissions dated 12.2.2009 had prayed for assessment @ USS 1.00/kg?
(iii) Whether learned Member (Judicial) of the Tribunal is justified to ignore the crucial point of excess weight upto 60% and the unit of measure (U.O.M.) as per law is also "kilogram", the same cannot be ignored on the basis of few wrongly assessed Goods Declaration (G.D.) and the Tribunal order is against the settled principle of law that two wrongs cannot . Make one right?
(iv) Whether, without prejudice to above, even if assessment is to be made on per piece basis in that case too a Glass Light Fixture of one kg weight cannot be evaluated at par with the two kg?
(v) Whether as per amended provisions of Section 79(1) read with 32(1) of the Customs Act, 1969, the respondent importer is not responsible for declaration of all particulars (which also includes weight) of the imported goods truly & correctly?
(vi) Whether the learned ' Member (Judicial)'s observation that "the evidential G.Ds. Of past and current .Clearance support the declared value" is correct?
(vii) That as far as facts and grounds of the case the applicants are adopting the facts and grounds as already submitted before the Tribunal vide Appeal No. Cus-664/12007, hence, it is requested to kindly tag the said appeal file with the subject application for rectification/review.
(viii) Lastly he prayed to straight and correct the questions of facts and kindly apply correct law thereupon.
4. The Advocate for the respondent filed preliminary legal objections:---
(i) That the application filed this application under Section 194-B(2) of the Customs Act, 1969, (hereinafter referred as the Act) for seeking rectification in the order dated July 31st, 2009 passed by this forum in Customs Appeal No. K-469/2008-MCC (Old No. K-664/2007).
(ii) As the Applicant has filed Rectification Application under Section 194-B(2) of the Act, therefore, for the proper appreciation the relevant Para of the above-referred section is reproduced below:- "The Appellate Tribunal may, at any time within one year from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other part to the appeal.
(iii) That it is undoubtedly cleared from the above section that the application for getting any mistake apparent from the record rectified must be filled by the Collector of the Customs. Whereas instant application has been filled and signed by the Additional Collector (III Model Customs Collectorate of PaCeS, and Customs House, Karachi.
(iv) That it is a settled law that where a provision of the statute confers any power to any Officer then that power must be exercised by that person only, and not by any other person until and unless such provision manifestly expresses the delegation of such powers in this regard. Our this contention further strengthened by case-law decided by learned Customs, Sales Tax and Federal Excise Appellate Tribunal, Lahore Bench, Lahore in Sales Tax Appeal No. 177/LB/2002 wherein it has been held as under:--- "Power vested in an authority could only be exercised by that authority and by none else: Exercise of that authority by any other authority would be without -jurisdiction."
(v) That in view of the above-cited dictum of the Court you would appreciate that the appellant has not complied with the very basic and root requirement contained in the above-referred section. Meaning thereby the instant application filed by the Additional Collector is liable to be set aside bn this score being filed without having proper power entrusted to him.
(vi) That it is worth mentioning that when the law requires particular things/actions to be done in prescribed manner then that things/actions must be done in that prescribed manner, otherwise any things/actions done in other manner would surely be fall being not in . Accordance with law: In this respect we place before this Hon'ble forum the following cited case-laws:- "The acts, deeds and things required to be done should be done in accordance with law or should riot, be done at all, P.C.T.L.R. 2004 Lahore 10(a).
If a method is prescribed to do a thing in particular manner, some must be followed in letter and spirit. (2003 SCMR (e) 1505) and 2004 AALD 542, (Order- 24).
Proceedings without lawful authority effect Superstructure built on proceedings conducted without lawful authority must fall down. 2004 PTD [ITAT] 838."
(vii) That keeping all the above under consideration you would appreciate that the action of the Applicant is not in consonance with the manner prescribed in the Section 194-B(2) of the Act.
Mistake Apparent from the Record: That the above-referred section clearly speaks that the Tribunal have power to rectify the mistake which is apparent from the record. However, the Application filled by the Applicant is totally raising new grounds which does not tantamount to principle of mistake apparent from the record. During the hearings and even in the Appeal memos filed by the Applicant ' before Collector Appeal as well as before this Hon'ble forum did not say any thing about this new ground taken by the Applicant through this rectification Application. Without prejudice the above legal objections was further submit our contentions as under:-
(viii) That regards to the objection of the Applicant in Para (ii), that the respondent has prayed/requested to assess the Goods under Section 25(6) read with 25(9) of' the Act. In response to this it is submitted that the Applicant has never raised this issue before the Collector (Appeal) and not even in the Appeal before this Hon'ble forum.
(ix) That this new ground taken by the Applicant at this stage under the grab of rectification/review does not come under Section 194-B(2) of the Act. Accordingly this contention of the Applicant not raise before this Application could not be termed as apparent mistake in order passed this Hon'ble forum.
(x) In response of Para (iii) it is submitted that you would appreciate that the scope of show-cause notice was restricted to allegation of excess of weight, however, the assessment was made on piece basis and this is self-evident from the Goods. Declaration filed by the respondent. Further the respondent purchase the goods in dispute on the piece basis and it is well- established general practice in the market that the lighting fixtures/fittings always be sold on piece basis and not on weight bases and contended by the Applicant; therefore the allegation of weight does not have any relevancy to this case.
(xi) That the respondent duly supported its contention with ample proof of Goods Declaration Undisputedly showing that the Customs Authority had already assessed the Goods on piece bases rather on weight bases. And in response to this evidence the Applicant failed to counter this evidence, and nothing brought in support of his contentions.
(xii) That by the filing of this Application is nothing but to block the claim of the respondent arose after passing of this order by this forum.
(xiii) . Lastly it is therefore prayed that this forum may kindly be pleased, to dismiss this Application being contrary to the law as well as decisions of the higher Courts in this regard.
5. The Deputy Collector' of Customs (PaCCS, Law) filed parawise comments dated 26.2.2010 on preliminary legal objection which are as under:-
(i) That the contents of para (1) require no comments.
(ii) That the contents of para (1) require no comments.
(iii) That in terms of sub-section (2) of Section 194- A read with Section 4 of the Customs 'Act, .1969, and serial No. 101 of SRO 371 (1 )/2002, dated 15.6.2002 the officers upto 1 not below the rank of Assistant Collector are authorized to file a rectification/review application, It is a trite law that a person who is authorized to file an appeal/petition is also authorized to file any application thereof including the application for review of any order, It is pertinent to mention here that in Section 196 of the Customs Act 1969, the Additional Collector is empowered to file a reference application/appeal before the High Court; thus, it is also within his domain to file a review/rectification application.
(iv) That in the light submissions made above the contents of para 4 requires no further comments.
(v) That in the light submissions made above the contents of para 5 requires no further comments.
(vi) That in the light submissions made above the contents of para 6 requires no further comments.
(vii) That in the light submissions made above the contents of para 7 requires no further comments, hence, denied.
(viii) That the mistake is apparent from the record that there is not a single corroborative document to prove the transaction of even the suppressed value declared by the respondent importer. Even the importer himself vide his counter submissions dated 12.2.2009, submitted in reply to appeal before this Tribunal, has asked for assessment @ US$ 1.00/kg as per data of valuation maintained by the Collectorate in terms of subsections (9) & (13)(a) of Section 25 of the Customs Act, 1969 read with Rule 107 of the Customs Rules, 2001, therefore maintaining the order of Collector Appeal for acceptance of declared invoice price which is around @ US$ 0.40/kg is clearly a mistake apparent from the record. Secondly the importer is aware of the fact that the "weight" is a crucial factor for assessm ent/evaluation of the said commodity thus giving premium in fine/penalty despite clear mis-declaration of weight is also a mistake apparent from record.
(ix) That in the light of submissions made above and considering the ground No. 4 of the appeal the contents of para 9 are incorrect hence denied.
(x) That in the light of submissions made above and considering the para No. 5 (FACTS) of the appeal the contents of para 10 are incorrect hence denied, It is also submitted one piece having one kg cannot be equated/evaluated at par with one piece having two kg, therefore, even if G.Ds assessed on piece basis in that case too the weight of raw material (Glass) used In its manufacturing is also taken into consideration.
(xi) That in the light of submissions made above and considering the cardinal principle of law that two wrongs .Cannot make one right the argument build by the respondent Importer on few isolated wrongly assessed G.Ds. Cannot be used as rescue for the importers.
(xii) That the contents of para 12 are incorrect - hence denied.
(xiii) - Lastly he prayed to rectify the order dated 31.7.2009 and straight/correct the questions of facts involved and kindly allow appeal bearing No. K-664/2007.
At the time of hearing on 22.5.2010 the Appraising Officer argued as under:--
(i) That fine and penalty have been correctly imposed by Additional Collector and values of different light fixture are different and value of one light fixture cannot be applied as a single Criterion on all other light fixture.
(ii) That cases of evidential imports decided by the respondent .Have been re-opened and that unit of measurement for the subject items in Pakistan Customs. Tariff is kilogram and not as per piece or quantity.
(iii) That the value of these light fixture is less than value of raw-material.
7. The respondent advocate argued as under:-
(i) That the respondent has been treated differently by the appellant either due to misconception or mala tides.
(ii) That initial allegation of excess weight has been levelled at against the respondent. There is no mention of allegation of misdeclaration of transaction value.-
(iii) That the allegation of excess weight originally ^ incorporated in the show-cause notice and Order-in-Original has not been taken up by applicant in the rectification application.
(iv) That original assessm ent has been piece basis in the G.D.
(v) That the respondent has submitted a number of evidential invoices before the lower forums as well as this forum where assessm ent by concerned customs authorities/Group has been finalized on piece basis and which imparts an element of discrimination to the determent of the appellant,-
(vi) That Collector (Appeals) has himself observed that the departmental practice is on piece basis as per evidence produced.
(vii) That departmental practice cannot be ignored in terms of the judgment of Hon'ble High Court in case reported as 2010 PTD 443.
(viii) That rectification Application has been filed to defect refund application of the importer which, is pending since 2007 with the relevant Group.
(ix) That rectification Application has been filed on 19.10.2009 whereas the date. Of the judgment by the Appellate Tribunal is 31.7,2009 since the application in this case cannot be filed in time, recourse to rectification has been resorted by applicant when no mistake of fact or law is apparent from the fact of the record or- floating of the surface of the judgment.
(x) That the rectification Application has been filed with mala fide to beat time bar.
(xi) That last but not the least the rectification application is not maintainable since it has not been filed by the competent authority, i.e. Collector of Customs in terms of sub-section (2) of Section 194-B of the Customs Act, 1969.
(xii) He referred to a judgment of Hon'ble Supreme Court in Civil Petitions Nos. 287-K, 288, 291, 292, 872, 873-K/2004 in C.P. No. 307, 308, 314, 326, 330 to 333, 339, 343 to 363-K, 461, 462, 503 and 530-K of 2005 decided by the Hon'ble Court on 17.10.2005 which in clear words expressed that if the law requires a particular thing or a particular act to be done in a particular manner, all other acts or modes of doing that thing or act are unlawful and illegal and hence ab initio void.
8. The Appraising Officer was confronted as to whether any recovery has been made in the evidential cases stated by him to be re-opened by the Collectorate, he could not produce any evidence to the effect regarding re-opening of the cases of the evidential import or regarding any recovery made so far. He could not even point out any mistake apparent from the fact of the judgments which needed rectification since this Court has thoroughly considered and dealt with air the issues of facts and law on the basis of evidence on record and judgment of the superior Courts, It was proper course for the applicant to have filed a reference to the Hon'ble High Court against the judgment of this forum which was not followed due to reasons best known to the appellant.
9. I have heard the arguments of the both parties at length and carefully examined the record of the case. The meaning of the word "mistake" in its true legal sense and in its common parlance, according . To the Black's Law Dictionary (Sixth Edition at page 1001)includes a 'mistake of fact' and 'mistake of law' in its broad based spectrum, the department/applicant is yet to pull the curtain down, to place its contention within it to be on track in line with Section 194- B(2) of the Customs Act, 1969 as none of the meaning either in plain words as mistaken or technically as mistake of fact or even legally as mistake of law could be stretched favourably by the applicant. Section 194-B(2) ibid., thus would not come to the rescue of the department or applicant nor it would cover the committed lapse and illegality in the process of adjudication and appeal. The applicant has failed to establish the mistake if any committed by the Tribunal in the impugned judgment dated 31.7.2010 in view of Full Bench judgment of august Supreme Court of Pakistan delivered by their lordship Mr. Justice Saeed-uz-Zaman Siddiqui, Mr. Justice Mukhtiar Ahmed Junejo and Mr. Justice Khalil-ur-Rehman Ramday in the case of Mian Rafiq Sehgul & others v. Bank of Credit & Commercial International (Overseas Limited) and others bearing Civil Review Petitions Nos. 44 to 46 of 1996 (PLD 1997 SC 865), wherein it was observed that: "If a Court has taken a conscious or deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or- order cannot be obtained on the grounds that the Court took an erroneous view or that another view on consideration is possible (and that way) only such error in the judgment would justify a review which are self-evident, found floating on the surface are discoverable without much determinant and have a material bearing on the final result of the case."
In yet another case "Spin Bacha and 9 others v. Mst Neelam and others (Review Petition No. 1400/2000 with Civil Miscellaneous No.- 20/2000, dated 5.11.2002) reported as 2003 YLR 1306 (Peshawar) Honourable Chef Justice Mr. Justice Mian Shakirullah Jan and Mr. Justice Qazi Ihsanullah of the Peshawar High Court have observed that:- "Arguments of the petitioner in support of their Review Petition had already been discussed by the Court in judgment under review. No error apparent from the face of the record was pointed out nor any other sufficient reasons were advanced to justify review of the Petition and the same was dismissed in the circumstances."
10. That against the theory of continuation of trial . Or proceedings is not conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of review and when this legal aspect of the matter is juxtaposed with the judicial pronouncement of the Superior Courts then the very rectification application so filed stands nowhere except with a razor thin marginal scope of review, when there is any 'mistake' as described by the statute, floating on the face of the record and could be rectified in terms of Section 194-B(2) of the Customs Act, 1969, which is not so in the case in hand.
11. In yet another case 'Pakistan Oilfield v. Customs and Central Excise Mr. Justice Imtiaz Rasheed Siddiqui and Mr. Justice Syed Asghar Haider of Lahore High Court have observed that:- "If anyone opts for a recourse to section 35C(2) of the Act and seeks amendment of the final order of the Tribunal passed under this section then in fact he accepts the main theme of the order/Judgment but only seeks an amendment thereof, In such an eventuality, he is precluded to file an appeal subsequently under Section 36C of the Act, even otherwise Section 36C of the Act does not provide for an appeal against an order passed under Section 35C(2) thereof, since such an order does not finally dispose off the appeal but only relates to a requested amendment."
12. Apart from the merits of the case discussed supra the subject rectification application has been filed by the Additional Collector of Customs which is. Against the provisions of sub-section (2) of Section 194-(B) of the Customs Act, 1969 which reads as under:- 194-B. Order of Appellate Tribunal.- [The Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit confirming, modifying or annulling the decision or order appealed against. The Appellate Tribunal may record additional evidence and decide the case but shall not remand the case for recording the additional evidence: Provided that the appeal should be decided within sixty days of filing the appeal or within such extended period as the Tribunal may, for reasons to be recorded in writing fix: ................... ...................
(2) The Appellate Tribunal may, at any time within [one] year from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section
(1) and shall made such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal. .................... ....................
The aforesaid provisions of sub-section (2) of Section 194-B. Of the Customs Act, 1969 in unequivocal and unambiguous terms clearly state that the mistake needs to be brought to the Tribunal's notice of Collector of Customs or other party to the appeal. The Collector of Customs is the competent authority who can file the rectification application in terms of this sub-section and is different for appeals filed to the Appellate Tribunal in terms of sub-section (2) of Section .194- A ibid, the competent officer should not be below the rank of Assistant Collector or Assistant Director so authorized in writing by Board of Collector or Director as the case may be on the ground alone the rectification application of the applicant Additional Collector not filed by the Collector is not maintainable in terms of the judgment of the Hon'ble High Court of Sindh in Special Customs Reference Application No. 83 of 2009 dated 18.5.2010.
13. In view of the foregoing Tribunal's Judgment dated 13.7.2009 calls for no rectification as envisaged in Section 194-B(2) of the Customs Act, 1969. As such the ^instant Rectification Application being devoid of material substance stands dismissed.