' MUHAMMAD ARIF MOTON (MEMBER JUDICIAL-II).--This order will dispose-of Customs Appeal No, K- 293 of 2009, filed by the appellant against Order-in-Appeal No,1603 of 2009 dated 4-3-2009, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi.
2. The brief facts of the case are that Messrs Wawa Garments Industries (Pvt.) Ltd, Karachi exported a consignment of "Blended Bed Sheets " to Singapore vide GD No, KEXP-54329 dated .4-11-2003.
Subsequently duty drawback claim was filed for an amount of Rs,467903.00 vide S.R.O. No, 65541 dated 10-5-2007 under S.R.O. No, 406(I)/2002. At the time of examination, it was observed by the examination staff that the declared value was on higher side. Since at the time of examination, the goods are physically available, the examination staff is in a better position to assess the value of the goods. Accordingly rebate Section was advised to process the duty drawback claims @ US$.0.60/100gms in the light of Additional Collector's Order No,SI/ MISC/01/2001/ADC-I (Export).
Thus, while processing the claim, declared value was slashed down and duty drawback claim was processed on the assessed value and sanctioned for an amount of Rs,328,281.00 Messrs Wawa Garments filed supplementary claim for the balance amount i,e, Rs, 139,622.00 vide ID No, 99 dated 7-5-2008. In the light of endorsed examination report and Circular No, SI/MISC/01/ 2001-ADC-1 (Export) issued by the Additional Collector, the duty drawback amount was sanctioned correctly and the filed supplementary claim for the differential amount prima facie does not merit consideration. Resultantly the appellant was called upon to show-cause notice by the respondent No, 1 as to why their supplementary claim should not be rejected. The appellant replied to the show-cause notice but the same did not find the approval of the respondent No, 1 and she passed Order-in-Original No, 03/08.EXP dated 31-5-2008. The operative part of the impugned order read as under:- "The exporter's representative have failed to produce any documentary evidence in favour of his contention of fair declared value. It is a fact that Customs Staff at exporting station examined the goods physically. Abnormal values are specifically referred to the rebate groups. If exporter or his agent objects to such observation; representative sample is forwarded to price Check Committee for valuation check. Price Check Committee, being a legal body, in the presence of exporter/his representative, determines fair value. At many occasion declared value is ascertained to be fair in the Price Check Committee. Exporter at the time of export had this option available which he did not desire to opt. Now in absence of any representative sample, it is not possible to accept declared value as fair. Therefore, I conclude that the original claim was processed correctly at US$.
0.60 per 100 gms on the recommendations of examination staff and in the light of circular SI/MISC/01/ 2001-ADC-1 (Exports) dated 3-10-2003. Supplementary claim therefore, does not hold merit and is accordingly rejected."
3. The order was challenged before respondent No, 2 who also vide his order dated 4-3-2009 rejected the appeal by observing that:-- "I have examined the case record and given due consideration to the arguments made before me.
It is evident from the record that customs, value of the exported goods involved in the instant case was reduced to US$.
0.6 per 100 grams in accordance with Circular dated 3-10-2003 issued by the Additional Collector of Customs (Exports), Customs House, Karachi as per practice and there is nothing on record to suggest that the appellants had raised any objection to that at the time of examination/export of the goods. Obviously, had the appellants objected to the above mentioned reduction in value of the exported goods, the Collectorate would have made necessary enquires to deal with the appellants' claim accordingly. It appears that the appellants avoided to confront any such situation: instead, they raised the issue when the goods had been exported and the department was not able to make any further enquiry with regard to valuation of the goods. This attitude itself indicates the not so-straight mindset of the appellants. Therefore, the learned counsel's objections regarding the Circular dated 3-10-2003 are not tenable. Similarly, the learned counsel's arguments regarding lack of jurisdiction of the adjudicating officer is not well founded the relevant provisions of law state that an Additional Collector of Customs is empowered to decide cases the amount involved certainly did not exceed Rs,1,000,000.00 and in this case the amount involved certainly did not exceed Rs,1,000,000.00, even otherwise under section 4 of the Customs Act, 1969 an officer of Customs has been authorized to exercise powers of the officers working under him. Therefore, even if the adjudicating officer (an Additional Collector) exercised the powers vested in an Assistant Collector working under her administration control she did not act unlawfully. All in all, I do not see any weight in the arguments advanced by the learned counsel. Therefore, I hold that the impugned order is correct in law and on facts and there is no reason to interfere with the same. The appeal is rejected accordingly."
4. The appellant has now challenged the above order by way of this appeal. The consultant Nadeem Ahmed Mirza appeared on behalf of the appellant who reiterated the arguments incorporated in the memo of the appeal and emphasized that:-
(i) The show cause notice issued to the appellant is silent about the allegation, the law that had been violated and penal clauses that are attracted meaning thereby that the appellant was not charged for any contravention of law/rules, rather he was asked by the respondent to justify the unilateral/arbitrary act of the Collectorate of Exports for slashing his original duty drawback claim, despite admissible under law. Since no charges have been leveled against the appellant the show cause notice and order-in-original issued/ passed by the respondent are ab-initio void as per the dictum laid down by Supreme Court of Pakistan in its reported judgment 2001 SCMR 838 wherein their Lordships of the honourable Supreme Court held:-- "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 the law or not at all. Since the show-cause notices are vague and not conformity with the law, therefore the same had no legal effect and as such the appeals have no merit and dismissed as the learned counsel of the appellant (which was Assistant Collector of Customs, Dry Port Peshawar and others) has not been able to point out any legal infirmity in the impugned judgment in as much as, notices are concerned."
(ii) That the order-in-original has been passed- in excess of the jurisdiction of the authorities passing orders. For rejection of a supplementary claim a show-cause notice has to be issued under para 47 of CGO 12 of 2002 dated 15-6-2002 i,e, by competent sanctioning authority. Since the amount of the claim of appellant is 139,622.00 and the competent authority to adjudicate the subject case in terms of para 47 is Assistant Collector. Wherein, in the instant case the order-in- original was passed by the Additional Collector of Customs having power to adjudicate case of duty drawback not below to Rs,300,000.00 and above Rs,1,000,000.00. Simultaneously, under any section of the Act the respondent was not empowered to transgress the jurisdiction of her subordinates, as held by the Superior Courts of Pakistan. Resultantly, the instant show cause notice and order-in-original suffer from lack of powers and, are therefore, null and void ab initio.
(iii) That the respondent No, 2 is at fault in interpreting the provisions of the Act in an absurd manner i,e, under section 4 of the Customs Act, 169 empowers the respondent No, 1 to issue show- cause notice and pass order-in-original, while encroaching the jurisdiction of her subordinates. If that is the essence of section 4 ibid, then there was no need for incorporating section 179 in the Act fixing monitoring limit of the customs officers for adjudication of the contravention cases and direction vide Para No, 47 of CGO 12 of 2002 dated 15-6-2002, wherein amount of claim was made the basis of rejection of claim by the authorities empowered under the said para to sanction/reject the claim. None of the officer empowered under section 179 or para 47 can transgress or encroach jurisdiction of their subordinates or higher authorities. The opinion formed by the respondent No, 1 is nothing more than forced construction of law.
(iv) The appellant also derived strength from the reported judgment of Superior Court (Major Syed Walayat Shah v. Muzzafar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation) (1992 ALD 449 (1) Karachi) AAA Steel Mills Ltd., v. Collector of Sales Tax and Central Excise, Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfaraz Khan and others wherein, their lordships of Supreme Court of Pakistan held "that it is an element to principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled than the entire proceeding which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings in appeals or revisions equally suffers from illegality and are without jurisdiction"
(v) That the respondent totally ignored the provisions of law and opined that the ADC can fix value of the exported goods for payment of duty drawback claim amount with the consideration of respective Associations of the exporters. The said contention is not valid, rather void ab-initio besides being unilateral and arbitrary, being done under the prohibited method of Rule 110 of Customs Rules, 2001.
(vi) No assessm ent or valuation of the consignment can be made on the recommendation of any committee or association as the same is nullity in the eyes of law as held by Appellate Tribunal and High Court in their judgment Customs Appeal No,1048/99 (H.M. Abdullah v. Collector of Customs (Appeals), PLD 1996 Karachi 451 the Collector of Customs and another v. Abdul Razzak, 2004 PTD 2993 Collector of Customs (Appraisement) v. H.M. Abdullah and another 2005 PTD 21 Yousuf Enterprises v. The Collector and 2006 PTD 674 Pakistan Dry Battery Manufacturers Association v.
Federation of Pakistan.
(vii) That only the C.B.R. Or any authorized officer can fix minimum customs value of goods specified in the, 1st schedule and 2nd schedule through a notification under subsection (14) of section 25 of the Customs Act, 1969 (as stood prior to omission through Finance Act, 2005). For ease of reference, the expression is narrated below: "Notwithstanding anything contained in subsections (1), (5), (6), (7), (8) and (9), if the board or such officer as is authorized by the Board in this behalf is satisfied that it is necessary or expedient so to do the board or the officer may, by notification in the official Gazette, for the purposes of levying customs duties under this Act or any other law for the time being in force, fix the minimum customs value of goods specified in the First Schedule and the Second schedule, having regard to the trend of value of such or like goods and subject to such conditions or limitations as the Board or such officer may deem fit. The Board or such authorized officer may fix different customs values for different classes or different description of the same type of goods. A notification issued under this subsection shall be effective from the day specified there in, notwithstanding that the officials Gazette in which such notification appears is published at any time after that day."
(viii) The circular issued by the ADC vide No,SI/MISC/01/2007 fixing the maximum export price of bed sheets sets on the basis of per 100 grams is void ab initio as he was not empowered under section 25(14) of the Customs Act, 1969, unless he was empowered to do so through a Gazette Notification. Since he was well aware that he was not authorized, he intentionally and willfully fell short of mentioning his vested power under the Act in the said order. Therefore, the said circular is of no legal effect as, it was issued in the absence of availability of powers and to issue a show cause notice by the respondent on the strength of that is itself a serious illegality and appellant stands stood fortified from the reported judgments of Lahore High Court 2005 PTD 67 and 2005 PTD 86 in the cases of Messrs Sohrab Global Marketing (Pvt.) Ltd and Messrs Punjab Arms Co., Lahore v.
Deputy Collector of Customs and 4 others. Their Lordship of the High Court while allowing the petitions held that "under the provision of subsection (14) of section 25 of the Customs Act, 1969, Central Board of Revenue or any other authorized officer can fix the minimum value of the goods specified in the 1st schedule and 2nd schedule through a notification. Since, the impugned advise/letter and any other further proceeding order passed their upon are held to be without lawful authority and of no legal effect.".
(ix) That for determination of export price no alien method can be adopted, except the mechanism provided in the expression of section 25(15) of the Customs Act, 1969. Since the endorsed examination report in the case of appellant is silent in regards of determination of price under the provision of section 25(15) ibid, hence, the declared value is deemed to be fair and cannot be objected upon at belated stage i,e, at the time of processing/ sanctioning duty drawback claims.
Resultant, deduction of duty drawback claim at the time of processing and sanctioning on the basis of a void order was erroneous and so the issuance of show cause notice against supplementary claim, which the appellant applied after deduction, to which he was entitled under the respective duty drawback notification from the day of departure of the vessel on which the captioned goods of the appellant were loaded. The opinion of the appellant was endorsed by the Customs, Excise and Sales Tax Appellate Tribunal while issuing judgfrent in Customs Appeals No, K- 322 of 2003 dated 26-9-2003 (Collector of Customs (Export) v. Bilal International) in the following words:- "The very preparation of contravention report is not only violation of the direction of C.B.R. But also is against the statuary provisions of section 25(15) of the Customs Act, 1969 which clearly specify the customs value of the exported goods shall be the value at the prescribed time, on the sale in the open market for the exportation of the country to which the goods are consigned"
(x) That in case of doubt in correctness of the declared value, the objection should be based on concrete evidence in the shape of evidential invoice of the same category of goods, exported to the country consigned by the exporter, whose consignment is under scrutiny, like the appellant and the said invoice has to be supplied to the effected person (appellant) in terms of para 78 of the CGO 12 of 2002 dated 15-6-2002, reading as: "In cases involving mis-declaration of value the precise basis on which the declared values are held to be mis-declared should be clearly stated and copy of the evidence on the basis of which it is so held should also be supplied to the party after omitting the names of the local importers of identical goods which are not required to be divulged to them."
(xi) That in line with the directions contained in para 78 of CGO 12 of 2002 dated 15-6-2002, the Customs, Excise and Sales Tax Appellate Tribunal held in its judgment in Appeal-No,K-1281 of 2005 dated 22-0-2006 (Muhammad Farooq and Sons v. The Collector of Customs, Sales Tax and Central Excise (Appeals)Karachi-II)
"The charge of misdeclaration. Of value cannot be leveled in the absence of any evidence as directed by Board in Sr. 78 of CGO 12 of 2002 dated 15-6-2002, and neither on the basis of value ascertained in another case through a Committee formed contrary to the provisions of section 25(5) of the Customs Act, 1969 and the rules and regulation framed there under".
' Whereas, the Supreme Court of Pakistan in its reported judgment 2007 SCMR 1357 = 2007 PTD 1858 Collector of Customs, (Valuation) and another v. Messrs Karachi Bulk Storage and Terminal Ltd.
Held that:-- "Rejection of declared value of goods and fixation of its enhanced value without disclosing adequate material or reason is arbitrary, whimsical and incomplete disregard of section 25 of the Customs Act, 1969, which requires the relevant authorities to disclose evidence and adequate material for rejecting the declared value and enhancing the same."
(xii) That as regards the observation of the respondent No, 2 that the appellant has not objected to the remarks at the time of shipment is patently out of context as the customs officials endorsed the opinion without consulting with either exporter or their clearing agent, resultant they are left high and dry in this regard. Irrespective of that, it is appropriate for the appellant to submit that he can assert his right that his exported goods has to be assessed in accordance with the legal requirement any mistaken belief as to amount payable will not preclude the petitioner for asserting such legal right despite of the fact whether he agitate at the time of assessment or not or received duty drawback amount voluntary as held by the, Lahore High Court in its reported judgment 2008 PTD 1481 (Messrs Shafique and Company v. Assistant Collector of Customs and 2 others their lordship of High Court observed that: "Learned counsel for the Department, states that the petitioner was a contributory in the whole matter. This assertion is made on the grounds that the payment of the enhanced amount of fiscal levies on the basis of the higher valued assessed by the Customs Department was made voluntarily and without protest. This contention does not have much force because the petitioner is entitled to all remedies under law. Even if it is, for a moment conceded that he made payment voluntarily, he can at any time, assert his right to be assessed in accordance with legal requirement. Any mistaken belief as to the amount payable will not preclude the petitioner from asserting such legal right."
(xiii)That in terms of subsection (3) of section 193-A of the Customs Act, 1969,an appellate authority has to decide an appeal within 90 days or within such extended period as the Collector (Appeals) may for reasons to be recorded in writing, extend, confirms, modify or annual the decision or order appealed against, meaning that in any case an order-in-appeal has to be passed and issued within maximum 180 days.
(xiv) That appeal was filed by the appellant on 9-6-2008 and order-in-appeal was issued by the respondent No, 2 on 4-3-2009 i,e, after the expiry of initial 90 days and the period to be extended i,e, further 90 days (no extension was made in the instant appeal by the respondent No, 2 as evident from the contents of the order-in-appeal), meaning order was passed after the expiry of maximum stipulated period of 180 days rendering the order-in-appeal is time barred by 88 days and as such cannot be enforced as held in the judgments of High Court of Lahore reported vide 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala. Wherein, their Lordship of High Court held that the prescribed limit for adjudication and appeal under the respective section of the Act are mandatory not directory while observing that:-- ' Provision of law prescribing time limit for revenue to create liability against taxpayer would, be deemed to be mandatory--Principles.
' Where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen, the prescription of time is deemed directly. However, where a public functionary is empowered to create liability against a citizen 'only within the prescribed time, it is mandatory.
When the prescribed limit is beneficial for the citizen and restrict the executive power to touch the pocket of a tax payer thereby creating certainty, then after its expiry, even if there was a good case for creation of liability, he will not be dragged in."
(xv) That it is now well settled principle of law that whereas statute prescribes a particular mode or mechanism to do an act, the same is to be done in the same manner and within the frame work of relevant legal provisions. As such the issuance of show cause notice by an in competent authority would be in act lacking jurisdiction to do so in the case of Chittaranjan Cotton Mills Ltd. v. Staff Union reported as PLD 1971 SC 197, their lordship of the Supreme Court had observed:-- "Whereas the court is not properly constituted at all the proceeding must be held to be coram non judice and, therefore, non-existent in the eyes of law. There can also be no doubt that in such circumstances "it could never be too late to admit and give effect to the plea that order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Treahon v. Chief Kwame Tawia"
' In Raunaq Ali's case (PLD 1973 SC 236), their lordships of the Supreme Court did observe in the following terms:-- "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 the law recognizes a privilege or err", then such action amounts to a "usurpation of power unwarranted by law" and such an act is a nullity; i,e, to say, "the result of a prescribed 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, particularly where the appeal is to the later discretionary jurisdiction. The courts would refused to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
(xvi)That irrespective of the above fact, it is not out of place for the appellant to submit further that the respondent Collectorate on one hand deducted duty drawback claim of the appellant at the time of sanction of original claim and subsequently 'opted to issue show cause notice upon filing of supplementary claim as against to the vital fact that bulk of claims of the bed sheet of various exporters were sanctioned on the price indicated by the appellant in their invoices or more than that without any let, hitch and hindrance an in case any amount was sanctioned, on submission of supplementary claim e.g. Export effected by Messrs the Export Company; Karachi against GD No, 121607 dated 9-0-2003 against which a claim was filed vide S.R.O. No,5289 dated 29-5-2003 for Rs, 368,777.00 which was paid to the extent of Rs,180,373.00 and deduction was made for Rs,188,404.00 against which a supplementary claim bearing ID No, 17 dated 15-12-2005 filed and the same was sanctioned and was forwarded to bank for payment of the sanctioned amount. The differential treatment of the Collectorate with the appellant amounts to discrimination, which is not permitted under the articles of Constitution of Islamic Republic of Pakistan.
5. The departmental representative Mr.Hyder Pirwani, Appraiser, appeared on behalf of the respondent and furnished their comments on above cited grounds of appeal inter-alia as under:--
(a) That the show-cause notice is quite exhaustive as it contains view point and based on facts of the shipment and the status of filing supplementary claim. It is a valid and legal documents issued under section 180 of the Customs Act, 1969, therefore, having no comments thereon.
(b) That the Additional Collector was competent to issue show cause notice and to pass order-in- original subsequently in the subject case by exercising powers of his subordinate as per expression of section 4 of the Customs Act, 1969 stating that an officer of Customs is also competent to exercise all powers and discharge all duties conferred or imposed upon any officer subordinate to him.
(c) That as per procedure and working of the Collectorate, it can fix value of the exported goods and the said fixation of value is based on the adopted practice.
(d) The valuation of the claim was done on the basis of Circular dated 3-10-2003 which is legal and has taken into consideration for calculation of duty drawback at that time for processing of that particular claim.
(e) Section 25(14) of the Customs Act, .1969 (which has been omitted since 2005) authorized Board or its authorized officer for fixing of value regarding levy of customs duty on the goods in Schedule I or II of the Customs Act, 1969. Customs duty is levied under section 18 of the Customs Act, 1969. This is a case of duty drawback and not, levy of customs duty on the goods in a schedule I or II. Duty drawback is paid under section 21(c) and section 37 of the Customs Act, 1969. Thus reference to the said section is incorrect and misinterpretation of laws and established practice.
(t) Reliance upon judgment of Messrs Punjab Arms Company v. Deputy Collector, Lahore (2005 PTD 86) is relevant, as it is judgment about the levy of Customs Duty at import stage. Reliance PLD 1976 SC 37 relates to the judgment of a case of transfer of property and has no relevance to the subject case.
(g) The copy of Circular dated 3-10-2003 was circulated earlier, which is in accordance with para 78 of CGO 12 of 2002.
(h) That in case the exporter/clearing agent has any objection with regard to the remarks of the examining official he should had adduced his observation on the reverse of Goods Declaration
(GD) prior to allow of shipment, which he had not been done earlier.
(i) The customs has acted in accordance with the established practice derived from the provisions of Customs Act and allied Rules, hence the relied judgments are not relevant to this case.
(j) Respondent has referred to two duty drawback cases in the memo. Of Appeals, for which it is stated that in these cases the date of shipments in the case of these two claims was much earlier than the subject case as the relied upon cases were of different nature, beside these have no binding effect; even otherwise each case has to be dealt separately keeping in view its facts. No discriminatory treatment was given to the appellant.
7. Rival parties heard and case record perused. Following observations are made by this forum:--
(i) The show-cause notice in question is not keeping in with the principles enunciated by the Hon'ble Supreme Court in the judgments reported as 2001 SCMR 238 and 2005 PTD 580. In the present case the show-cause notice is deficient, vague and defective for want of necessary particulars. The show-cause notice does not contain specific allegations and is silent in respect of contravention of relevant provisions of the Customs Act, 1969 and penal clauses attracted there to.
Judgments of the Superior Courts cited in para 4 (i) supra are relevant to this point. As such the show cause notice and all subsequent proceedings including order-in-original and order-in- appeal based on such defective and deficient show cause notice are unlawful, illegal and coram non-judice.
(ii) A plain reading of the impugned order-in-original and order-in-appeal issued by the adjudicating and appellate authorities shows that these are not speaking orders in which all issues raised by the appellant have been discussed and dealt with properly. Such orders have been deemed to be without jurisdiction in which the competent authorities have not discussed questions of facts and questions of law addressed by the taxpayer. This position has been discussed at length in the case of National Bottlers decided by the Hon'ble Lahore High Court reported as 1994 CLC 2181, wherein it has been ruled that orders passed by the authorities were not only laconic and sketchy but there was no application of mind by either of the two authorities. It was further observed that it is now a well settled law that authorities exercising statutory powers of appeal and revision affecting valuable rights of the parties act in quasi-judicial if not judicial capacity and it must pass a speaking order duly supported by reasoning showing due application to facts and law applicable while disposing of the case before it. Orders lacking this criteria have been declared to be without lawful authority and of no legal effect and hence beyond jurisdiction and coram non judice. The operational portion of the subject Order-in-Original No, 03/08-EXP dated 31-5-2008 incorporated in its para 7 which contains inherent legal infirmities deficiencies and substantive illegalities discussed herein under other issues dealt in by this forum in this judgment. The Order- in-Appeal No, 1603 of 2009 dated 4-3-2009 in para 5 also incorporated certain interpretations by Collector (Appeals) which are in direct contradiction with the judgments of the Superior Judicial Fora and which have been vehemently contested by the Advocate for the appellant. The above position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369. As regards non-speaking orders the Hon'ble Supreme Court of Pakistan has time and again disapproved the passing of such perfunctory orders in the cases invoking valuable rights of the parties. It is settled law that the judicial order must be a speaking order manifesting by itself that the Court has applied its judicial mind to the issues and the points of controversy invoked in the causes. Furthermore, when the reasons would not be forthcoming, obviously the Appellate Court would be deprived of the views of the subordinate Court. In any way the impugned order, which is not a speaking order and' devoid of reasons is not sustainable in law being in contravention of law declared by the Hon'ble Supreme Court of Pakistan in various cases reported as PLD 1995 SC (Pak.) 272, PLD 1970 SC 158, PLD 1970 SC 173 and 1984 SMCR 1014.
(iii) That in the instant case show-cause notice was issued by the Additional Collector despite of the fact that the amount under dispute is Rs,139,622.00 falling under the domain of Assistant Collector as per wording of section 179 of the Act and para 47 of CGO 12 of 2002 dated 15-6-2002. It is well settled elementary principle of law that action of executive functionaries are to be restricted to specific spheres permitted by the statute. If the opinion offered by the respondent was to be accepted that an officer of customs appointed under section 3, which includes respondent, is competent to exercise all powers and functions of an officer subordinate to him under section 4 ibid the hierarchy of distribution of jurisdiction explicitly provided by section 179 of the Act and para 47 of CGO 12 of 2002 dated 15-6-2002 shall be rendered redundant. Also the consequent result would be a total anarchy where the superior officers would be making all efforts to exercise the adjudication powers clearly conferred by law upon their subordinates. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provisions of law, the special provision shall prevail in terms of judgment reported 2004 CLD 373. The power of adjudication as already observed is special in nature. This cannot be eclipsed by any other general provisions. Even otherwise there is another settled principle of interpretation of statutes i,e, that the courts can supply construction with a view to avoid absurdity (reference is invited to the case of Khalid Qureshi v. UBL 2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179 and para 47 of CGO 12 of 2002 dated 15-6-2002. The Supreme Court in the case of East West Steamship v Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case-law on the point that where there is a conflict between two provisions of statute, the later provision prevails and has to be given precedence in terms of judgment reported as 1984 CLC 1517. Apart from these considerations, law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity in terms of the judgment reported as PLD 1995 Kar. 587 wherein their lordships observed as under:-- "It is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void, ab-initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation of power warranted by law (the Chief Settlement Commissioner Lahore v Raja Muhammad Fazil Khan and others PLD 1975 @ p.339) an act done which the person doing, it has no jurisdiction at all to do or which was clearly outside the scope of his activities (The State v. Zia-ur- Rehman PLD 1973 SC 49) and a judgment or order delivered by a court or a judicial or a quasi- judicial authority not competent to deliver it (Muhammad Saleh and others v. Messrs United Grain and Fooder Agencies PLD 1964 HC 97). The Constitution jurisdiction can thus be exercise when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No, 1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own cost."
(iv) That while dealing with the powers of adjudication, it is needless to observe, that the Honourable Supreme Court has jealously guarded the same. In Assistant Director v. B.R. Herman Mohata Ltd. PLD .1992 SC 485' a full Bench of Supreme Court was pleased to observe that section 223 of the Customs Act, 1969 could not be employed so as to interfere with the judicial or quasi- judicial functionaries. It was clearly observed that the L power of the C.B.R. As to prescribe guidelines were not relevant for the exercise of judicial functions. To similar effect is the judgment of Supreme Court reported as Central Insurance v. C.B.R. 1993 SCMR 1232. In this case the C.B.R.
Issued direction for the reopening of Income tax Assessment under section 65 of the Income Tax Ordinance, 1979. It was held by the Supreme Court that the C.B.R. Did not figure in the hierarchy of the officers provided in the statute for the purpose M of assessment and adjudication. On the basis of this it was held that the directions of the C.B.R. To reopen the assessment was without jurisdiction and the adjudication officer was directed to apply its own mind. That as per laid down dictum, the respondent No, 1 was not empowered to issue show-cause notice and pass order-in-original as this amounts to usurpation of N powers and consequently the entire proceedings which followed became illegal and nullity in law being coram non-judice.
(v) As regards the value aspect the provisions of section 25(15) of the Customs Act, 1969, clearly specify that the. Customs value of any exported goods shall be the value at the prescribed time, on a sale in open market of the country of exportation for the country to which the goods are consigned. The said Section and even section 25A of the Act nowhere states that the values of the exported goods can be fixed by Additional Collector. Resultantly the fixing of values through a circular is violative of section 25(14) and section 25A of the Customs Act, 1969 and 0 Chapter IX of Customs Rules, 2001 because the Act and Rules did not empower the Additional Collector to fix values of either imported or= exported goods. The act of issuance of Circular fixing the price is in the absence of legal mandate and is, therefore, tantamount to transgression of authority and forced construction of law. The judgment relied upon by the appellant in para. 4(vi) (vii) supra are relevant and depreciate such unilateral and arbitrary determination of export values which render the valuation of the subject goods fixed as a nullity in the eyes of law.
' The appeal in this case was filed on 9-6-2008 and the 'respondent P. No, 2, passed the order on 4- 3-2009. The provisions Of subsection (3) of section 193A of the Customs Act, .1969 require that the appeal should be decided within a period of 90 days from the date of filing of appeal or within further extended period not exceeding 90 days by the Collector of Customs (Appeals) with reasons to be recorded. The initial period of 90 days expired on 7-9-2008 whereas the entire stipulated period of 180 expired on 6-12-2008 rendering the order-in-appeal barred by limitation period totaling 178 days rendering it as unlawful and void as held by Superior Judicial Fora in judgments reported as Sales Tax Appeal No,K-255/04 (New No,K-286/04) and K-309/01, 2006 PTD 340 and PTCL 2005 CL 841 finding/decision in Complaint No,958-L/2005, 1998 MLD 650, 2004 PTD (Trib.)
2898, 2004 PTD 369, 2005 PTD 23, 2007 PTD 2092, 2008 PTD 609, 2008 PTD 578, 2008 PTD 60, 2009 PTD (Trib.) 1263, 2009 PTD 762, 2010 PTD (Trib.) 23, 2010 PTD (Trib.) 81, 2010 PTD (Trib.) 1146, 2010 PTD (Trib.) 1469, 2010 PTD (Trib.) 1631, 2010 PTD (Trib.) 1636, 2010 PTD (Trib.) 2117.
8. In the light of foregoing it is concluded that the impugned orders are unlawful, illegal, coram non judice and being issued without jurisdiction and based on deficient and defective show-cause notice and in contravention of the judgments of superior judicial fora which explicitly depreciate the fixing of value of the exported goods through administrative circulars in the absence of availability of legal sanction in the Act and Rules. The impugned orders are, therefore, set aside and the subject appeal is accordingly.