' GHULAM AHMED, MEMBER (TECHNICAL-H).---By this order I intend to dispose of Customs Appeals Nos.K-666/11 and 703/11 K-670 to 677/11 filed by the appellant against Order-in-Appeal No,4977 to 5006/2010 dated 7-2-2011, passed by the Collector of Customs Appeals Karachi. These appeals have identical issues of law and facts and are, therefore, being heard, dealt with and disposed of simultaneously through this common order in the light of judgment of the Hon'ble High Court of Sindh in Custom Reference Application No,157 of 2008 S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Custom (Adjudication-1) and others, Karachi.
2. Brief facts of the case are that the principle Appraiser, Model Customs Collectorate of PaCCS, Karachi reported vide Letter No, MCC/ Misc/ Monitoring-II/188/2009 (Part-III dated 23-4-2010 Messrs Care Impex, (NTN-2766023) situated at 125-A, Fazila Colony, Ferozepur Road, Lahore, imported one consignment bearing CRN No,I-Hc-1154437 dt,280909 comprising of Wire Rod and succeeded in getting the clearance of the consignment without proper application of valuation Ruling No,1/01/2006-IV-A dated 27-3-2008. Non application of Valuation ruling has resulted in short payment of government revenue amounting to Rs,42, 9911.
3. The importer being aggrieved from the orders-in-original passed by the Adjudicating Authority had filed appeals before the Collector of Customs Appeals. The learned collector of Customs the version of the importer and passed the following order :-- "I have thoroughly examined the entire case record and given very careful consideration to the arguments advanced before me. The principal issues raised by the appellants' consultant are (i) whether a valuation ruling issued under section 25-A of the Act can be applied after release of goods and (ii) whether the orders impugned in the instant proceedings have been passed without jurisdiction The learned consultant has contended that neither the, ruling can be applied after release of goods nor the officers who passed the impugned orders were authorized under the law to do so. He has quoted number of judgments/orders passed by the superior judicial fora in support of his contentions with regard to his above-stated contentions. As per law, valuation rulings issued under section 25-A of the Act are of mandatory nature and any goods the customs Value of which has been nominated through a particular ruling have to be assessed to/taxes in accordance with the terms of that ruling if the goods have been imported between the date of issuance and the date of revision/rescinding thereof. There is nothing in the law to suggest that a valuation ruling cannot be applied after release of the goods, if the ruling could not be applied at the time of release of the goods for any reason. Therefore if application of a valuation in respect of a consignment escapes by any reason at the time of clearance of the goods, the same are required to be re-assessed even after release thereof and the amount of duty/taxes so short-paid is required to be recovered under the relevant provisions of law. However, the provisions of law contained in sections 32, 32(3A) and 195 of the Act prescribe different manners of recovery of such short-paid amounts and various officers have nominated to initiate the recovery proceedings. In the instant 39 cases, the particulars of the goods had not been mis-declared in any way and the, appropriate officers of Customs had properly assessed as well as out-of-charged the goods within the meaning of section 80 of the Act. Therefore, neither the recovery proceedings could be carried out in terms of sections 179 and 32(2) or (3) of the Act read with serial No,3(i) of Notification S.R.O.
371(1)/2002 dated 15-6-2002 nor under subsection (3A) of section 32 of the Act read with serial No, 3(ii) of Notification S.R.O., 371(1)/2002 dated 15-6-2002. Consequently, the only course of action available with the department was to proceed under section 195 of the Act for -recovery of the short-paid amount of Rs,11.765 million which had been caused by illegal/improper assessments made by the relevant appropriate officers of custom. Therefore, the officers who adjudicated these cases did not have jurisdiction to do so inasmuch as they have not been empowered under section 195 of the Act to reopen the assessments: only a Collector can reopen assessments made under the above-mentioned provisions of law. On the other hand, it is a settled law that any order passed without jurisdiction is a nullity in the eyes of law, as categorically held by the superior courts of law in the cases reported as PLD 1995 Kar 687, PLD 1975 SC 331 PLD 1971 SC 197 and PLD 1973 SC
236. I have no reason to countenance the impugned orders, having been passed without jurisdiction. The same are, therefore, set aside and the appeals are allowed in the above terms.
However, the department has the option to proceed in these cases in terms of section 195 of the Act, provided the requirements of law are fulfilled.
4. The department was not satisfied with the Order-in-Appeal and filed appeal before this tribunal on the following grounds:-
(a) That the facts and circumstances of the case and the learned Collector (Appeals)'s admittance that a ruling can be applied on the goods already cleared and in terms of section 25- A(2) of the Act, the application of Valuation Ruling is mandatory, therefore, there is no question to stop recovery of Government's legitimate revenue. The learned Collector (Appeals)'s observation/ admittance in line 5 to 19 of para 5 of the impugned Order-in-Appeal is actually confirming the stance of the department, therefore, considering the honorable Supreme Court of Pakistan's dictum/observation, in number of cases including the case of Civil Appeal No,775-K of 2003, vide order dated 10-11-2003 it is clear that merits of the case cannot be scraped on sheer technicalities and the Government exchequer should not be suffered on such accounts.
(b) That it is simple case where the appellant's consignment was not assessed as per the customs values determined by the Director (Valuation) in terms of section 25A(1) of the Customs Act, 1969, and considering the provisions of section 25A(2) of the Act, there was short payment of revenue at the original import/ clearance stage. Therefore, subsequently when it was detected ' that short revenue has been paid due to Wrong determination of dutiable customs value, therefore, by exercising the powers under sections 80, 32(3) & 32(3A) of the Act, the short levied amount was demanded from the importers. The provisions of section 80 provide powers to re-assess the goods/Goods Declarations even after release of the goods. The learned Collector (Appeals) has failed to understand the amended provisions of section 80 of the Act.
(c) That the provisions of sections 32(3) and 32(3A) of the Act, are very much clear that at subsequent post clearance stage if any revenue is found short paid for any reason, the same can be recovered from the importer within three years. Every assessment of section 80 subject to scrutiny and audit .Under sections 32 and 32A of the Act. The only exception is that the assessm ents of section 80 if involves the adjudication of section 179 for confiscation of goods or imposition of penalty then the same has to be re-opened by the competent authority under section 195 of the Act, otherwise in all other circumstances the assessment of section 80 can be scrutinized/audited to un-earth the short levy, if. Any, and thereafter the customs officers are empowered to recover the same in terms of sections 32 and 32A without any order of recourse to exercise of section 195 of the Act. Further section 80 of the Act, also permits to re-assess the goods even after clearance of the goods from the customs charge. The provisions of sections 32, 32A, 80 and 195 of the "Act, are independent of each other and have their respective area of jurisdiction.
Further, without prejudice to above, the provisions of section 195 of the Act, are discretionary in nature and not mandatory or directory. The word "may" used in section 195 denotes that the Collector or the Board, as the case may be, may exercise the said powers on case to case basis, where they deem fit.
(d) That the provisions of S.R.O. 500(1)/2009 dated 13-6-2009; S.R.O. 495(1)/2007 dated 9-6-2007 and pars 44 of CGO 12/2002 has not taken away the powers of the custom officers of the Cellectorate for recovery 'of short levied amount in terms of section 32 or 32A of the Customs Act, 1969. The aforesaid S.R.Os. Were only issued to give the powers of customs officers to the officers of Post Clearance Audit and the Directorate General of Valuation. The statutory provisions of sections 32, 32A and 80 read with Section 4 of the Customs Act, 1969, are very much clear in this regard.
That under sections 32(3) and 32(3A) read with sections 4 and 80 of the Act, the Assistant/Deputy Collector is empowered to recover the short paid revenue, thus, the provisions of any rule or CGO has no over-riding effect on the parent statutory provision of law.
(e) That the learned Collector (Appeal) has also erred in law to observe that since the assessment made by the assessing officer has attained finality and in terms of section 195 of the Customs Act, 1969, the demand can only be raised after reopening of the case by the Collector. The learned Collector (Appeal)'s observation is totally against the amended provisions of law. First of all the amended provision of section 80 of the Customs Act, 1969, allows the Assessing Officers to re- assess the goods even after clearance of the goods from their charge, thus, the Collector (Appeal)'s 'observation in this regard is incorrect, hence, vehemently denied. Secondly, the provisions of section 195 of the Customs Act,: 1969, have no over-riding effect on section 32 of the Customs Act, 1969. This position is confirmed from the periods stipulated in sections 195 and 32 of the Customs Act, 1969 respectively. The provisions of section 32 of the Customs Act, 1969, can be invoked within three years or five years, as the case may be, whereas the provision of section 195 of the, Customs Act, 1969, can only be invoked within two years, thus, it is clear that how it is possible to invoke the provisions, of section 195 of the Customs Act, 1969, if a demand for short levied amount is to be raised after two years. This sole position of the statute is confirming that the provision of section 195 of the Customs Act, 1969, has no relevancy on the provisions of sections 32 and 80 of the Customs Act, 1969. Thirdly the provisions of section 195 of the Customs Act, 1969, is discretionary in nature and it "may" only be invoked sparingly at discretion by the Collector on the matters pertaining to the adjudicated cases of section 179 of the Customs Act, 1969. If the observation of the learned Collector (Appeal) is accepted then the self-assessments made under section 79(1) of the Customs Act, 1969, would also cannot be checked/reassessed in terms of amended section 80 of the Customs Act, 1969, without re-opening by the Collector under section 195 of the Customs Act, 1969. The assessment/re-assessment is a procedural act and any decision in this regard cannot be, termed as "past and closed" final order. In the presence of sections 32, 32A and 80(3) of the Customs Act, 1969 no assessment can be termed as past and closed transaction till next five years.
(I') That under PaCCS, promulgated vide Chapter-XVIA and amended provisions of sections 79 and 80 of the Customs Act, 1969, an importer is not only required to declare all particulars of the imported goods truly and correctly but he also undertook added responsibility to assess and pay his liabilities of duty/taxes through self-assessment, thus, an importer has now the responsibility of "Assessor" as well. As per amended provisions of section 80 of the Customs Act, 1969 the task of customs officials is to check the correctness/verification of payment and declaration and in case of any discrepancy in payment or declaration of any particulars of the imported goods, the goods shall be reassessed and penal action, if warranted, for less payment of revenue shall also be taken against an importer. The post clearance audit/scrutiny of the Goods Declaration (G.D.) revealed that the assessm ent of the appellant's consignments was not made correctly and the applicable customs value, as determined under section 25-A(1) of the, Customs Act, 1969, was not applied, whereas according to the provisions of section 25A(2) of the Customs Act, 1969, duty/taxes are to be paid/ charged as per customs values determined under section 25A(1) of the Customs Act, 1969. Admittedly due to inadvertence and misconstruction at the original import/clearance stage the duty taxes were not paid/charged as per customs value determined under section 25A(1) of the Customs Act, 1969, therefore, in terms of sections 25A(2), 32(3), 32(3A) and 80 of the Customs Act, 1969, the customs authorities are duty bound to recover the short levied amount within three years from the date of release of the goods.
(g) It is prayed that this honorable Appellate Tribunal may be pleased to declare that the impugned order is incorrect, void, illegal and against the law i,e, 25-A(2) and 32 of the Customs Act, 1969, and merits of the case, therefore, the impugned Order-in-Appeal is liable to be set-aside' and respondent importer is liable to pay duties and taxes as per customs value determined under section 25-A of the Customs Act, 1969.
5. Examined the case record and heard the oral submission of both parties.
6. These appeals are barred by time by 74 days as pointed out by the office. The appellant had not filed any request for condonation of delay at the time of filing of appeal. When the Tribunal pointed out the said deficiency, the appellant filed applications for condonation, which are not permissible under law. Nevertheless despite of the fact that the applications for condonation are not permissible at this stage, these are taken up for 'disposal along with the main appeals for the sake of regularization and justice.
7. The judgments by the respondent No,4 were passed on 7-2-2011 and were dispatched through TCS consignment note No,167840 171 on 8-2-2011 and were received in the office of appellant on 9- 2-2011 as evident from the copy of the consignment note supplied by the learned of respondents.
The appellant has failed to advance cogent reasons not filing appeal timely except with plea that the order was misplaced and so the case files consequent to which they obtained an attested copy from respondent No,2 on 28-4-2011 and filed the instant appeal therefore the computation of time limit is to be taken from 28-4-2011. The plea taken by the appellant is contrary to the provision of subsection (3) of section 194-A and section 215 of the Custom Act, 1969. I am of the considered view that simply relying on loss of received order, record of the case, receipt of the certifying copy and does not suffice for enough to be considered a valid argument and that two without, fixing the responsibility for lapse after scrutiny of record. Whereas the argument as to the delay in filing appeal being a technical defect and that it does not wash 'away the right of appellant. It is not valid as the limitation is provided in the statute specifically and one has to adhere to those, nonadherence to the mandatory requirement of law is always fatal and it has been held in a plethora of reported Judgments that time limitation is mandatory obligation and any order passed in deviation thereof is nullity in law. In 1990 SCM R 1059 FOP v. Messrs Azhar Brothers Ltd. And PLD 1995 Supreme Court 396, Government of Punjab and another v. Muhammad Saleem the Hon'ble Supreme Court dismissed the appeal while holding that High Court rightly declined the condonation of delay. As delay of each day had to be explained and Government could not be treated differently than private litigants on the question of limitation under section 5, Limitation Act, 1908. Whereas in 2008 SCM R 284 = 2007 PTD 1387 Messrs Nida-e-Millat Lahore v. Commissioner Income Tax, Zone-/Lahore the Hon'ble Supreme Court refused leave for appeal by holding that the Supreme Court in exercise of jurisdiction under Article 185(3) cannot condone delay occurring in filing of appeal before Income Tax appellate authority as limitation creates a right in favour of opposite party. In 2011 SCM R 1424 Munir Hussain v. Changaz Khan the Hon'ble Supreme Court held that the petitioner had not particularized in application for condonation of delay by raising any plausible ground or disclosing date and day of his knowledge about dismissal of his appeal. Such indolence would cultivate a right in opposite party which could not be lightly dislocated to maintain judicial balance. Again in 2011 SCM R 1341 Amanullah Soomro v. P.I.A through Managing Director/Chairman and another, the Hon'ble Supreme Court refused to condone the delay while observing that "Line has to be drawn between negligence and bona fide mistake, plea raised by the petitioner might be attractive of moral plain but there was no justification for depriving opposite party of legal rights acquired owing to negligence of petitioner. The High Court of Sindh in 2007 PTD 1418 Messrs Collector of Sales Tax and Central Excise v. Evian Fats and Oil (Pvt.) Ltd. Held that "where the officials of the sales tax dept were not vigilant enough to file appeal before High Court within period of limitation and were negligent, the respondent cannot be penalized, non filing of appeal within limitation period creates a vested right in favour of respondent. In 2010 PTD 1183 Collector of Custom, MCC of Preventive Karachi v. Sheikh Nasir Ali it was held "that the respondent had neither infringed any law nor transgressed any circular/scheme, therefore the impugned order cannot be termed as a void order. After expiry of limitation period, vested rights had been created in favour of respondents which could not be taken away and dismissed the reference in limine for being hopelessly barred by limitation. In 2010 PTD 1739 Star Corporation (Pvt.) Ltd. Karachi v.
Collector of Customs Karachi the Hon'ble High Court held that under section 3 of the Limitation Act, if an appeal is barred by time and no condonation is sought, then the appeal is to be dismissed.
The said proposition of law was also validated in the reported judgments PLD 1953 Dacca 209, 1997 CLC Karachi 1332, 2007 PTD 1337, 2008 PTD 60. 2008 PTD 169, 2008 PTD 981, 2008 PTD 2025, 2010 PTD 251, PTCL 2010 CL. 12(sic) and 2009 PTD 2004.
8. Besides the cases being time barred, otherwise could not stand the test of judicial scrutiny on its merit. The fact cannot be denied that impugned goods were assessed to duty and taxes under section 25 of the Act, ibid and allowed release thereof under section 80 of the Act as final assessm ent. The competent authority has thus exercised powers under section 79 read with sections 80 and 83 of the Customs Act, read with Rules 438 and 442 of sub-chapter III of the Chapter XXI of Customs Rules, 2001. Hence the observations made by the respondent No,2 are considered to be well within law, and therefore need not any interference. This being so, the appears are dismissed being time barred and without any merit in them.
9. Order passed accordingly.
Appeal rejected.