' GHULAM AHMED, MEMBER (TECHNICAL-II).---By this order, we intend to dispose off Customs Appeal No,K-1199 of 2011 filed by the appellant against Order-in-Appeal No, 6945 of 2012 dated 1-1- 2013, passed by the Additional Collector of Customs, Karachi.
2. Brief, facts of the case as stated in the impugned order are that the appellant submitted a good declaration No, 2715 dated 13-7-2012 through their clearing agent Messrs Al-Barakaat Corporation (CHAL No,1540) for export of Food Stuff destined to Sharjah. The declared value of the aforementioned items is Rs,875,130.00 with a net weight of Rs,4.9013MT. On physical examination, the following contraband items were also found among the declared goods, stuffed in the container No, APHU712586-0.
S. No. Description Qty in Ctns/BagsKilograms Export Status 1 Mix Grams 200 gm x 608 Jars26 Ctns 121.6 Kgs Banned 2 Roasted Grams 400 gms x 238 jars21 Ctns 95.2 Kgs Banned ' The export of above mentioned goods is not permissible vide serial number 7 of schedule 1 of Export Policy Order 2012 read with S.R.O. 767(1)/2009 dated 4-9-2009. Accordingly, the goods were detained under the relevant provisions of law and the adjudicating officer held that the charges against the appellant had been proved. The operative part of the impugned order reads as under:- - "I have gone through the record of the case and also considered the written request of the Exporter for summary adjudication. The charges levelled against exporter vide contravention report stand established. I, therefore, order for outright confiscations of the contraband goods enumerated in the above table of his order vide para 3. A personal penalty amounting to Rs,50,000.00 is also imposed upon the exporter under the afore cited provisions of law. However considering that export of other goods permissible under the Export Policy Order, 2012, the shipment of non- contraband items is allowed keeping in view the nature of the goods. The exporter's is also warned to be careful in future."
3. The appellant against Order-in-Original No, 5 of 2012 dated 11-8-2012 filed an appeal before the respondent No, 2 who disposed it vide order dated 1-1-2013 , the operative Paras 6 and 7 of the impugned order read as under:- "6. I have carefully considered the written as well as verbal submission mode from both sides, in the instant case appellant submitted a Goods Declaration No, 2715 dated 13-7-2012 through their clearing agent Messrs Barkaat Corporation (CHAL No,1540) for export of Food Stuff destined to Sharjah the declared value of the aforementioned items is Rs,875,130 with a net weight of 4.9013MT.
On physical examination, the following contraband items were also found among the declared goods stuffed in Container No, APHU 712586-0.
S. No. Description Qty in Ctns/BagsKilograms Export Status 1 Mix Grams 200 gm x 608 Jars26 Ctns 121.6 Kgs Banned 2 Roasted Grams 400 gms x 238 jars21 Ctns 95.2 Kgs Banned ' The export of above mentioned goods is not permissible vide serial number 7 of Schedule 1 of Export Policy Order, 2012 read with S.R.O. 767(1)/2009 dated 4th September 2009. The main plea of the learned counsel is that even issuance of a proper show cause notice to a person is an essential ingredient of the expression "audi alterem partem" which literally means that nobody shall be condemned unheard. The right of being issued with a show cause-notice and the right of being personally heard on inseparable and inalienable rights of the defendant and cannot be denied to the person concerned under any circumstances.
7. In my opinion the appellants arguments carries weight and the ends of justice would be best met if the case is referred back to the adjudicating authority having jurisdiction with the directive to look into the facts of the case afresh with an open mind and giving the appellants ample opportunity to explain their view point in depth, in case a fresh valuation advice is required than there should be no hesitation to refer the case to the Valuation Department for new or revised valuation advice thus the value of the goods should be assessed properly and with a view to deliver justice to the claimants. The case is accordingly referred back with the said directives."
4. That on 9-1-2013 the respondent No, 2 issued a corrigendum under section 206 of the Customs Act, 1969, wherein he substituted the order at pages 8 and 9 (eight and nine) starting in line 5 (five) of para 7 (seven) the words of Order-in-Appeal No, 6945 of 2012 dated 1-1-2013 with the para reading as:-- "Moreover since the case relates to export of goods, it should be re-determined as to whether the goods are admissible for exports or otherwise after giving due consideration to the fresh grounds and arguments submitted by the appellants Ordered accordingly."
5. The appellant has now challenged the above order by way of this appeal on the strength of grounds taken in the memo of appeal reading inter alia:--
(i) That prior to proceeding for adjudication either properly or summarily, it is pre-requisite to issue statutory show cause notice under section 180 of the Customs Act, 1969, enabling the person. To know the levelled charges and the applicable contravened provision of the Act and the attracted penal clauses. The respondents have no right to ignore the said mandated requirement of law. The FBR through Para 78 of Customs General Order 12 of 2002 dated 15-6-2002 laid emphasis on the said statutory provision. For laying stress on the same date the FBR separately renewed the proposition of law and natural justice vide letter C.No, 730-M(L)/2002. Sub-Para (iii) of Para 2 is relevant in this regard, which read as " show cause notices should contain the brief facts of the case, the offence(s) committed and the evidence (s) on the presumption of which the allegation are based, the law that has been violated and the penal clauses that are attracted: The main objective of show cause notices is that the person to whom the notice is given is enable to fully know what are the charges levelled against him." (Exhibit "I" & "J").
(ii) That in the instant case of the appellant no show cause notice had been issued, on the plea that the appellant himself requested for summary adjudication. The said plea is of no substance rather devoid from legal infirmity as no adjudication can be undertaken unless show cause notice is served under section 180 of the Customs Act, 1969. "The said proposition of law further stood validated from the reported judgment 2004 PTD (Trib.) 1324 wherein the Hon'ble Tribunal held, "that it is not understood as to under what law such right which is primarily duty of the Adjudicating Officer under section 180 of the Customs Act, 1969 to issue show cause notice before confiscation of goods or imposition of penalty could be waived off by the owner of the goods or person for imposition of penalty on him. A fair reading of the section would reveal that there are 3 mandated condition to be fulfilled by the Adjudicating Officer before confiscation of the goods or imposition of penalty. The provision of section 180 of the Customs Act, 1969 do not absolve the adjudicating officer of discharging of his responsibility to comply with the given charter". Admittedly in the instant case no show cause notice was issued under the provision of section 180 of the Customs Act, 1969. Rendering the order-in-original without powers/jurisdiction, hence void and ab initio. The Apex Court in reported judgment PLD 1976 Supreme Court 37, wherein it is held that impugned order in excess of jurisdiction of authority passing order and thus void in 2001 SCMR 838' held that, "no show cause notice as required under subsections (2) and (3) of Section 32 of the Act was given to the respondents to show cause as to why they should not pay the defaulted amount, therefore demand notice in the absence of statutory show cause notices were without lawful foundation. It is well settled proposition of law that a thing required by the law to be done in a certain manner must be done, in the same manner as prescribed by law or not at all. Since pre- requisite show cause notice as required by the law have not been served on the respondent, therefore no straight forward demand notice for payment of alleged short levy could be issued.
Therefore in the absence of statutory notice demand notices were without lawful authority and thus of no legal effect." On the same anology the Hon'ble High Court of Sindh in reported judgment 2006 PTD 978 held that "if the show cause notice is not issued the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative."
(iii) That for laying emphasize on the well settled proposition of law that if a thing is required by law to be done in certain specific manner it must be done in the same manner as prescribed by law or not at all as per maxim "Expression Facit Cessare taciturn" as observed by the apex Court in their judgments report as PLD 1964 SC 536, 2003 SCMR 1505, 2006 SCMR 129. The appellant further add that:-
(a) Violations of principle of natural justice can be equated with violations of provisions of statutory instruments.
(b) It is the common principle which governs the administration of justice in Islam that in case of liability with penal or quasi penal consequences and/or deprivation of basic rights, a notice as well opportunity of hearing is absolutely necessary. This by itself has to be recognized as a basic right as observed by Honorable Supreme Court, Shariat Appellate Bench in the case of Pakistan v. Public at large reported as PLD 1987 Supreme Court 304.
(c) Even issuance of a proper show cause notice to a person is an essential ingredient of the expression "audi alterm partem" which literally means that no man shall be condemned unheard.
The right of being issued with a show cause notice and the right of being personally heard are inseparable and inalienable rights of the defendant and cannot be denied to the person concerned under any circumstances.
(d) In one case, the suspension without issuance of a show cause notice was quashed by Dhaka High Court and was later confirmed by the Supreme Court that the rule of natural justice applies though there may not be any positive words in the statute, for such requirements and such rules are minimum requirements of fairness as reported in the case of University of Dhaka v. Zakir Ahmed PLD 1965 Supreme Court 90. This has also been followed by the Honourable Supreme Court of Pakistan in their judgment reported as 1994 SCMR 2232. As observed by the Honourable Supreme Court in the judgment M.D the Bank of Punjab v. Syed Shahzad Hussain reported as 2006 SCMR 1023, it is also a settled principle of law that principle of natural justice must be read in each and every statute unless and until it was prohibited by the wording of the statute itself as the law laid down by this Court in Sir. Edward Snelson's case PLD 1961 SC 237, Fazal-ur-Reham's case PLD 1964 SC 410, Zakir Ahmed's case PLD 1965 SC 90, Pakistan Crome Mines' case 1983 SCMR 1208 and Pakistan's case PLD 1987 SC 304.
' That in view of the above judgments of the superior Courts the order-in-original/Appeal passed/issued by the respondent are ab initio, null and void and if any super structure built upon those orders shall also be of no legal effect.
(1) That under subsection (3) of section 193-A of Chapter XIX of Customs Act, 1969 the Collector of Customs (Appeals) is empowered to only "extend, confirm, modify or annul the decision or order appealed against but has no power to remand the case while using any word like "referred back" to the original authority as this is not permitted under law as held by the Superior Judicial Fora instead said act amount to mutilation of the statute, which is not appreciated upon. The respondent No, 2 while referring the case back to the respondent No, 1, despite of the fact that the order passed by him was an ab initio void order played havoc with the provision of section 193A of the Act. Rendering the order on the face of it based on malice and contrary to the provision of Act, hence without power/ jurisdiction and as such ab initio null and void.
(2) That the appeal before respondent No, 2 was submitted on 3-9-2012 and order-in-appeal was issued on 9-1-2013 as the corrigendum is integral part of the order and it is dated 9-1-2013 hence for all practical purpose for calculating limitation, said date is to be taken as the date of order. With consideration of that the order is barred by 10 days as evident from the fact that no extension was given by the respondent No, 2 prior to expiry of initial period of 120 day. Rendering the order passed by respondent No, 2 without power/jurisdiction as held by the Superior Court in umpteenth judgment e.g. 1998 MLD 650, (sic) SCMR 1126, 2002 MLD 180, 2003 PTD 1354, 2003 PTD 1797, 2004, PTD 369, 2004 PTD (Trib.) 2898, 2005 PTD 23, 2003 PTD 2821, 2007 PTD 2092, 2008 PTD 60; 2008 PTD 578, 2009 PTD (Trib.) 1263, 2009 PTD 762, 2009 PTD (Trib.) 107, 2009 PTD 1978, 2010 PTD 465, 2011 PTD 235, 2011 PTD 1185, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 987, 2011 PTD 79, 2012 PTD (Trib.) 1650 and 2012 PTD 980.
(3) That the order-in-appeal/corrigendum passed/issued by respondent No, 2 in the present shape are void of all legalities as these are not based on the fact of the case (exportability of roasted/sugar coated grams) instead on the basis of imported facts (valuation) by the respondent No, 2 himself, beside he failed to specify the provision of the Act and even valid reasoning for passing the said order. Rendering, the order nullity to law as per laid down dictum by the Superior Court of Pakistan, hence ab initio, null and void.
(4) The competency, integrity and independence of the respondent No, 2 is highly questionable and stood apparent from the Order-in-Appeal, which is fraud in law. Subsequently, he tried to cure committed illegalities by him in the order by issuing corrigendum dated 9-1-2013 under section 206 of the Customs Act, 1969. In that also he miserably failed as corrigendum is also illegal by virtue of the fact that the order dated 1-1-2013 is complete in all respect and contains no "clerical or arithmetical error", permitted to be corrected under section 206 of the Act. Rendering the corrigendum also illegal, being nullity to the provision of section 206 ibid. Nevertheless, the act of issuing corrigendum by the respondent No, 2 substantiated the fact that he passed the instant order in very cursory, wonton and perfunctory manner without application of mind, instead with mala fide intention and intellectual dishonesty.
' That irrespective of the above grave illegalities committed by the respondent No,1 , it is appropriate for the appellant to state that he is at loss to understand that how the respondent No, 1 termed the "Sugar Coated Roasted and plain Roasted Grams" exported by the appellant are banned under the Export Policy Order, 2012 while ignoring the fact that the "Grams" anticipated to be exported were "Roasted". The Chapter 7 of the Pakistan Custom Tariff speaks about only "Fresh or Dried Grams in Skin or skinned, whether whole or split and of preserved or stabilized through moderate heat/treatment and these are banned to be exported under serial number 7 of Schedule - I of the Export Policy Order, 2009 as evident from the mentioned PTC headings 0713.2000, 0713.9010, and 0713.9020. (Export "K" & "L)
(6) That the appellant Grams were "Sugar Coated Roasted Grams and Plain Roasted Grams". To elaborate the same reliance is placed on Dictionary meaning of "Roast", which is (1) To Cook in a dry oven or by exposure to an open fire or hot coal and (2) To dry and brown by exposure. Whereas the dictionary meaning of coated "a layer of one substance covering another" The "Grams" in question anticipated to be exported by the appellant were roasted on sand bath at 180C for 20 min and through this process, the skin of those stood exposed for removing and the color of Grams became Yellowish the natural color of "brown" and it taste also changes, it becomes Crunchy.
Whereas, the sugar coating on that is clone subsequently while dipping the roasted grains in the "Hot sugary syrup" and these became fit for "human consumption" through the said process the entire Grams characteristics changes i,e, sugar coated and plain roasted grams become sweet, beside change occurs in its characteristics i,e, in terms of amino acid and minerals than raw, so nutritionally sugar coated/roasted grains are better, in terms of available protein, lipid and fiber. To elaborate further the appellant is tempted to reproduce tables here in under: ' Table 1: Proximate composition of raw, roasted seeds of grams (chickpea)
Components (g/100 g) Raw Seed Roasted Seed Moisture 7.70+0.17a 5.52+0.10b Crude Protein 21.27 + 0.46a 20.13+0.15b Crude Lipid 6.29+0.61a 6.375+0.22a Crude Fiber 9.89+0.11a 9.13+0.13b Ash 3.53+0.09a 3.24+0.21ab Each value is the mean SD of two independent determination Means across the column with different superscripts are significantly different (P < 0.05)
Table II: Minerals composition of raw, roasted seeds. Of grams (chickpea)
Minerals (g/100 g) Raw Seed Roasted Seed Sodium 100.3+2.08a 99.0 + 1.73a Potassium 11.71+25.42a 1165+21.79a Phosphorus 252.7+2.89a 252.0+2.65a Calcium 194.0+5.29a 193.7+2.52a Amino Acid Raw Seed Roasted Seed Whole Egg Protein Arginine 8.99+0.12a 8.700.10b 6.1 6.1 Histidine 3.07+0.06a 2.870.02b 2.04 2.04 Isolecucine 4.82 + 0.02a 4.69 + O. 06b 6:3 6.3 Leucine 7.71+0.01a 7.580.06b 8.8 8.8 Lysine 8.04 +0.05a 7.61 0.02b 7.0 7.0 Methionine 1.58+0.01a 1.46+0.04b 3.4 3.4 Phenylalanine 5.06 + 0.15a 4.91 +046a 5.7 5.7 Threonine 4.36+0.03a 4.22+0.11a 5.1 5.1Iron 2.93+0.11a 2.71 +0.35ab Copper 11.370.21a 11.30+0.44a Zinc 6.87+0.12a 6.70+0.17a Manganese 1.93+0.31a 1.87+0.06a Magnesium 4.70+0.10a 4.67+0.12a Each value is the mean SD of two independent determination Means across the column with different superscripts are significantly different (P<0.05)
Table III: Amino Acid composition of raw, roasted seeds of grams (chickpea)
Amino Acid Raw Seed Roasted Seed Whole Egg Protein Tryptophan 1.73+0.02a 1.57 +0.09a 1.7 Valine 4.85 + 0.03a 4.40 + O. 07b 6.9 Total 50.21 48.01 Alanine 4.77+0.21a 4.64+0.10a 5.9 Aspartic Acid 11.52+0.03a 11.41+0.0sa 9.6 Cystine 0.940.04a 0.69+0.0sb 5.9 Glutomic Acid 17.67+0.02a 17.63+0.03a 12.7 Glyne 3.26+0.04a 3.23+0.02a 3.3 Proline 3.89+0.02a 3.78+0.09a 4.2 Serine 3.43 + 0.06a 3.42 + 0.08a 7.6 Tyrosine 3.35 + 0.04a 3.18 + 0.045b 4.2 Total 48.83 47.98 E-NE Amino Acid ratio1.028 1.000 Each value is the mean 4- SD of two independent determination Means across the column with different superscripts are significant different (P < 0.05) Whole Egg protein (FAO 1970).
Table IV: Essential Amino Acid scroe of raw and roasted seeds of grams (chickpea)
Amino Acid Reference Pattern Raw Seed Essential Amino Acid ScoreRoasted Seed Histidine 1.9 161.58 151.05 Isolecucine 2.8 172.14 167.50 Leucine 5.8 138.62 131.21 Lysine 5.8 138.62 131.21 Methionine 2.5 63.20 58.40 Phenylalanine 6.3 80.32 77.94 Amino Acid Reference Pattern Raw Seed Essential Amino Acid ScoreRoasted Seed Threonine 3.4 128.24 124.12 Tryptophan 1.1 157.27 142.73 Valine 3.5 138.57 125.71 E-NE Amino Acid ratio 1.028 1.000 FAO/WHO (1991) Amino Acid Reference Pattern of protein for human;
(7) That by virtue of the above submission and Tables, the characteristics of the raw grams change drastically and are excluded from Chapter 7 of the Pakistan Customs Tariff and correctly classifiable under Chapter 18 i,e, PCT Heading 2008.1100 and 2008.1900 for "plain roasted grams" and "sugar coated grams" and export of such type of "grams" are not banned and for that reason the said PCT heading is not included in the Schedule-I of Export Policy Order, 2009. Terming the export of sugar coated roasted grams and plain roasted grams by the respondent No,1 is based on inapt interpretation of the Export Policy Order, 2009 and Chapter 7 and 20 of Pakistan Customs Tariff. Rendering the confiscation and imposition of penalty patently illegal, hence void and ab initio.
(8) The order passed by the respondent No, 2 shows that it is an order without application of judicial mind and provision of the Act. Instead it is non-speaking orders and did not conform to the mandated requirement of S.24-A of the General Clauses Act, 1897 and this stood validated from the referred in above grounds Nos.(i) to (vii). Orders which did not contains rebuttle on the ground advanced (reference is made to para 3 at pages 2 to 7 of order) and decision/judgments relied upon by the appellant and also not ,.Containing substantial reasons and did not shows that it was passed on objective consideration shall always be treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrary without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication/ Appellate orders are being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said 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 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib.) 619.
(9) The appellant craves his right to add any fresh grounds at the time of hearing besides placing any valid incriminating evidence/ documents
6. No cross objection on the memo. Of appeal under section 4 of Section 194 of the Customs Act, 1969 were either filed by the respondent Collectorate. Nevertheless, during the course of hearing the departmental representative supported the orders of the respondent while submitting that all type of grams, weather fresh roasted or sugar coated roasted are not permissible to export in terms of schedule 1 of Export Policy Order, 2012.
7. Rival parties heard and case records perused and the following issues are framed for consideration:--
(i) Whether the mandatory requirement of issuance of show cause notice prescribed under section 180(a) of the Customs Act, 1969 for the purpose of adjudication is dispensed with where the incumbent files a request for summary adjudication?
(ii) Whether corrigendum issued vides dated 3-9-2012 by the respondent No, 2 is valid as per the expression of section 206 of the Customs Act, 1969?
(iii) Whether the Order-in-Appeal is barred by time and without powers/jurisdiction in terms of subsection (3) of section 193-A of the Customs Act, 1969 being issued after 10 days of the initial period of 120 days?
(iv) Whether roasted grams or sugar coated grams are restricted for export under Serial No, 7 of Schedule-I of Export Policy Order, 2009?
8. As regards issue No, (i), we find that prior to proceeding for adjudication either properly or summarily, it is pre-requisite to issue statutory show cause notice under section 180 of the Customs Act, 1969, enabling the person to know the levelled charges and the applicable contravened provision of the Act and the attracted penal clauses. The adjudicating authorities have no right to ignore the said mandated requirement of law. The F.I.R. Through Para 78 of Customs General Order 12/2002 dated 15-6-2002 laid emphasis on the said statutory provision. For laying stress on the same date the FBR separately renewed the proposition of law and natural justice vide letter C.No, 730- M(L)/2002. Sub-Para (iii) of Para 2 is relevant in this regard, which read as " show cause notices should contain the brief facts of the case, the offence(s) committed and the evidence(s) on the presumption of which the allegation are based, the law that has been violated and the penal clauses that are attracted. The main objective of show cause notices is that the person to whom the notice is given is enable to fully know what are the charges levelled against him." In the instant case no show cause notice had been issued, on the plea that the appellant himself requested for summary adjudication. The said plea is of no substance rather devoid from legal infirmity as no adjudication can be undertaken unless show cause notice is served under section 180 of the Customs Act, 1969. This proposition of law stood validated from the reported judgment 2004 PTD (Trib.) 1324, wherein the Hon'ble Tribunal held, " that it is not understood as to under what law such right which is primarily duty of the Adjudicating Officer under section 180 of the Customs Act, 1969 to issue show cause notice before confiscation of goods or imposition of penalty could be waived off by the owner of the goods or person for imposition of penalty on him. A fair reading of the Section would reveal that there are 3 mandated conditions to be fulfilled by the Adjudicating officer before confiscation of the goods or imposition of penalty. The provision of Section 180 of the, Customs Act, 1969 do not absolve the adjudicating officer of discharging of his responsibility to comply with the given charter." Admittedly in the instant case no show cause notice was issued under .The provision of section 180 of the Customs Act, 1969. Rendering the order-in-original and subsequently passed order-in-appeal without powers/jurisdiction, hence void and ab initio. The apex Court in repotted judgment PLD 1976 Supreme Court 37, wherein it is held that impugned order in excess of jurisdiction of authority passing order and thus void in 2001 SCMR 838 held that no show cause notice as required under subsections (2) and (3) of section 32 of the Act was given to the respondents to show cause as to why they should not pay the defaulted amount, therefore demand notice in the absence of statutory show cause notices were without lawful foundation. It is well settled proposition of law that a thing required by the law to be done in a certain manner must be done in the same manner as prescribed by law or not at all.
Since, pre-requisite show cause notice as required by the law have not been served on the respondent, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore in the absence of statutory notice demand notices were without lawful authority and thus of no legal effect" On the same anology the Hon'ble High Court of Sindh in reported judgment 2006 PTD 978 held that "if the show cause notice is not issued the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The judgment relied upon by the appellant at sub-paras (2) and (3) of para 5 are also relevant on this point. The issue No, (i) is answered in affirmative
9. That as regards issue No, (ii), it is appropriate to reproduced provision of section 206 of the Customs Act, 1969 for ease of reference:-- 206: Correction of clerical error etc.---Clerical or arithmetical errors in any decision or order passed by the (Federal Government], the Board or any, officer of customs under this Act, or errors arising therein from accidental slip or omission may, at any time, be corrected by the [Federal Government], the Board or such officer of customs or his successor in office as the case may be.
Upon perusal of the provision of section 206, it can be observed that the Federal Government, the Board or any officer of the Customs can correct clerical or arithmetical error arising therein from accidental slip or omission in any decision or order passed, this does not means that the authority defined in the said section can change or replace an existing para of an order with the fresh para as this does not fall within the ambit of "clerical or arithmetical error". In the instant case of the appellant the respondent No, 2 completely changed the order dated 1-1-2013 through corrigendum dated 9-1-2013, which is not permissible under law, this shows that the respondent has acted in very cursory, and, perfunctory manner, rendering the corrigendum as of no legal effect as the same least cured the defect of order dated 1-1-2013 passed by respondent No, 2 on the basis of his own perspective having no nexus with the fact of the case or order passed by respondent No,1, instead without power/jurisdiction as held in reported judgments referred in the answer of issue No, (ii), the issue No, (iii) is answered in negative
10. As regard issue No,(iii) relating to time barred of the order of the respondent No,1, upon perusal of the copy of filed appeal by the appellant with him shows the date of filing as 3-9-2012 and an order under the proviso of subsection (3) of section 193-A of the Customs Act, 1969 should had been passed within 120 days from the date of filing appeal i,e, by 1-1-2013 or within further extended period of 60 days prior to expiry of initial period of 120 days with reason to be recorded for extension in writing. No extension was granted by him prior to expiry of initial period of 120 days and opted to issue a corrigendum dated 9-1-2013, which replaced the order dated 1-1-2013 to 9-1-2013, therefore for calculation the limitation the said date has to be considered and from that the order is barred by time by 10 days hence without power/jurisdiction as such void and ab-initio as held in reported judgments 2007 PTD 117, 2008 PTD 60, 2007 PTD 2092, ,2010 PTD (Trib.) 1636, 2010 PTD (Trib.) 2117; 2009 SCMR 1126, 2002 MLD 180, 2003 PTD 1354, 2003 PTD i797, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 107, 2010 PTD 465, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.)
1146 and 2012 PTD (Trib.) 165Q. As such issue No, (vi) is answered in affirmative.
'11. That as regards issue No, (iv) the grams referred at serial No, 7 of Schedule I of the Export Policy Order, 2009 are of PCT heading 0713.2000, 0713.9010 and 0713.9020 i,e, of Chapter 7 of section II of Pakistan Customs 'Tariff, meant for vegetable product and Chapter 7 is for edible vegetable and certain roots and tubers, meaning thereby that these should be fresh or dried or skinned in any condition whether wholes or spilt or preserved or stabilized through moderate heat/treatment, export of these has been restricted by the Federal Government under Serial No, 7 of Schedule I of the Export Policy Order, 2009 for preventing scarcity in the local market but sugar coated roasted grams or plain roasted grams exported in the instant consignment are not the grams which are banned under Serial No, 7 of Schedule I of the Export Policy Order, 2009 as these are sand bath at 180 degree centigrade for 20 minutes and thereafter those were dipped in sugar for coating, through this procedure these becomes fit for human consumption and their nutrition changed mani-fold as against to raw, this fact has been elaborated in detail by the appellant in sub-para
(9) of para 5, resultantly, the "plain roasted grams" and "sugar roasted grams" exported by the appellant are not the grams listed at 7 of Schedule I of the Export Policy Order, 2009 instead exportable freely as these fall under PCT 2008.1100 and 2008.1900 respectively. As such issue No,(v) is answered in negative.
12. In view of the foregoing the order in this appeal is based upon proceeding which are infested with patent illegalities as discussed herein above, which is declared to be null and void. This being so, the impugned order of the respondents Nos.1 and 2 are set aside. The subject appeal is accordingly allowed as prayed as no order to cost.
13. Order passed accordingly.