' MUHAMMAD ARSHAD, MEMBER (TECHNICAL).---This order will dispose of Customs Appeal No,K-562 of 2011 filed by the appellant against Order-in-Appeal No,5378 of 2011 dated 30-5-2011 passed by the Collector of Customs (Appeals), Karachi.
2. Brief facts of the case as stated in the impugned order are that the appellant imported a consignment of waste paper declared to contain (i). Test Liner Board (3500 Kgs.) (ii) White Kraft (1500 Kgs,) (iii) Duplex Board with Kraft Back (4000 Kgs), (iv) Waste paper of all sorts (3000 Kgs) (v)
Printed/Mis-printed Duplex Board (26700 Kgs) (vi) Butter Paper in Reels (400 Kgs) (vii) Kraft Paper (1000 Kgs) (viii) Poly Coated Paper 100 Kgs) from Canada and filed a Good Declaration (GD) for home consumption bearing Machine No, KAPR-HC-58023 dated 15-1-2011 (IGM No, 776 of 2010 dated 30-12-2010 Index No, 01) through his authorized clearing agent Messrs Syed Shah Muhammad Associates CHAL No, 2033). The GD was processed under 1st Appraisement System and on examination of the consignment the Shed Staff reported that the impugned goods from Serial Nos. 1 to 6 of the GD were not waste paper as declared by the appellant instead, the same were reported to be job lot/stock-lot quality. The matter was ,referred to a committee consisting of seven (07) officers/officials including one Deputy Collector, two Assistant Collectors and a representative of the All Pakistan Paper Merchants Association (APPMA). The aforesaid committee, after examining the goods under dispute, ruled that the same were job lot/stock-lot quality and, as such banned for import in terms of Serial No, 7 of Appendix-A (Negative List) of the Import Policy Order, 2010-2011 read with Para. 5(A)(i) ibid. A show-cause notice dated 9-2-2011 was issued to the appellant under the relevant provisions of the Customs Act, 1969 (hereinafter the Act) for having attempted to clear banned goods. The appellant challenged the allegation through reply to the show cause notice dated 10-2-2011, which failed to convince respondent No, 1 and he passed impugned order in original dated 5-3-2011 through which the goods were ordered to be confiscated outrightly. The Para 8 of the order is relevant and reproduced here-in below:--
(8) I have examined the case record as well as the written and verbal arguments of the consultant.
In terms of Serial No,7 of Table to Appendix-A read with paragraph 5(A)(i) of the Import Policy Order, 2010-2011. Import of job-lot/Stock-lot quality goods is not allowed, hence charges levelled in the show-cause notice stand established. Therefore, I am inclined to order for outright confiscation of the consignment."
3. The order was challenged before respondent No, 2 who also vides his order dated 30-5-2011 rejected the appeal. 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) That the show cause notice in the instant case has been issued by the Assistant Collector of Customs, Group-II, despite of the fact that the amount of duty and taxes in the instant case is Rs,679,600.00, which falls within the domain of Deputy Collector of Customs in terms of section 179 of the Customs Act, 1969. Nobody is allowed to usurp the powers of his subordinates or superiors; rather each and every official has to remain within his monitory territorial jurisdiction. The said defect render the show-cause, notice ab inito, null and void by virtue of suffer of lack of power/jurisdiction.
(ii) That irrespective of the said legal deficiency it is appropriate to invite attention to the fact that the respondent No, 1 was also not empowered to pass a' judgment on an ab-inito void show-cause notice. In support of his stance, the appellant invites the attention to the fact that the order can be passed by the show cause issuing authority and none else under the provision of section 179 of the Customs Act, 1969, unless the issued show cause notice is canceled or with-drawn and the authority passing the order re-issue a show cause notice with his own signature. In the instant case no such show cause notice exist, meaning thereby that no show cause notice was issued, resultant, no order can be passed by the respondent on the show cause notice issued by an official subordinate to him as per settled preposition of law. The super structure built subsequent on the infield show cause notice issued by Assistant Collector, Group-II also became automatically ab initio and coram non judice on this score alone as held by the Superior Court of Pakistan.
(iii) That the appellant further states it support of his stance that in the instant case show-cause notice was issued by the Assistant Collector despite no jurisdiction under section 179 of the Customs Act, 1969 and subsequently, the impugned order was passed by the Deputy Collector, who indeed has jurisdiction if he would had issued show cause notice tinder his own signature. In the absence of that the Assistant Collector issuing the show cause was the only authority to proceed in the matter instead of respondent because it is settled elementary principal of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. If the opinion advanced invariably by the respondents are to be accepted that the adjudicating authority was empowered under section 179 of the Customs Act, 1969, in that case there was no cause or reason for the legislature to incorporate section 179 in the Act regarding the jurisdiction of the respective officer, the hierarchy of distribution of jurisdiction explicitly provided by section 179 of the Act 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 provision of law, the special provision shall prevails (reference is invited to the case of Lt. General (Retd.) Shah Rafi Alam v. Lahore Race Club 2004 CLD 373. The power of adjudication, as already observed, is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i,e, that the courts can supply construction with a view to avoiding 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. 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 (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this 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 this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar 587 is referred.
(iv) That while dealing with the powers of adjudication, it is needless to observe, that our 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 power of the CBR as to prescribed guideline were not, relevant for the exercise of judicial function. To similar effect is the judgment of Supreme Court reported as Central Insurance v. CBR 1993 SCMR 1232. In this case the CBR issued direction for the reopening of Income tax Assessm ent under section 65 of the Income Tax Ordinance, 1979. It was held by the Supreme Court that the CBR did not figure in the hierarchy of the officer provided in the statute for the purpose of assessm ent and adjudication. On the basis of this it was held that the direction of the CBR to reopen the assessm ent was without jurisdiction and the adjudication officer was directed to apply its own mind. Reliance is placed on the order of the Tribunal in SIT. Appeal No, 5 of 2007 Messrs Muller and Phipps Pakistan (Pvt.) Ltd. v. The Collector of Sales Tax Enforcement LTU, Karachi.
(v) That in support of his stance, the appellant further draws attention of the Hon'ble Tribunal that it is, a settled principle in Article 4 of Constitution of Islamic Republic of Pakistan that "If the law had prescribed a method for doing something in a particular manner such provision of law is to be followed in letter and spirit achieving or attaining the " objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same view was subsequently fortified by the Hon'ble Supreme Court of Pakistan in its reported Judgment 2006 SCMR 129 Director, Directorate General of Intelligence and Investigation and others v. Al-Faiz Industries (Pvt.) Ltd and others while holding that "section 196 requires filing of an appeal by the Collector and none else, the appeal filed by the Director of Customs would therefore be absolutely, illegal, incompetent and not maintainable. In the light of clear hand unambiguous expression of provision of section 179 of the Customs Act'1969 the adjudication process, can only be undertaken by Assistant Collector of Customs Group-II and none else. The passed order-in-original by the Deputy Collector, Group-II is therefore absolutely, illegal, incompetent and not maintainable under law.
(vi) That it is also pertinent to add further that cases where orders are made without jurisdiction/powers were declared as of no legal authority as held by their Lordship of Supreme Court of Pakistan that it is an element to principle that is a Mandatory condition for the exercise of jurisdiction by the Court, Tribunal Authority is not fulfilled then the entire proceeding which follows become illegal and suffer from want of jurisdiction/ powers. Any order passed in continuation of these proceedings which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings in adjudication or appeals equally suffers from illegality and are without jurisdiction Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation), (1992 ALD 449 (I) 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, Nowshehra and others v. Sarfrhz Khan and others.
(vii) That the respondent No, 1 was not empowered to pass an order penalizing appellant or any person without issuance of show cause notice under his own signature as per mandated requirement of law. Since, no show cause notice was issued by the respondent No, 1 in the case of appellant, resultant no order can be passed or recovery proceeding can be effected as per laid down law by the Supreme Court of India and Pakistan. The Hon'ble Supreme Court observed that:
(i) "Showing Cause" --- the foundation of natural justice; The concept of showing cause against anything is the ground norms of natural justice, the foundation of the seamless garments of human civilization, a 'violation of principle of natural justice, by a State action was declared to be a violation of Article 14 of the Indian Constitution [Satavir Singh v. U.O.L. AIR 1986 SC 555].
(ii) In the evolution of the rule of law, the two rules against bias and the right of being heard have acquired the status of inalienable rights of man. The roman put them in the two maxim "Memo Judex in Casua Sua" and Audi Alteram Partem". The judicial committee of the Privy Council examined the foundation of the principles of natural justice in the case of B Surinder Singh Kanda v.
Government of the Federation L.R. 1962 (A.C) 322.
(iii) When executive officers are invested with statutory powers of a special or drastic nature, before exercising those powers, they must strictly comply with the provisions of the Act, Rules and natural justice (PLD 1968 Kar.599).
(iv) "In the absence of service of such notice on importer, entire proceeding initiated by the adjudicating officer and further superstructures thereon would become without jurisdiction, void and inoperative. Their lordship of High Court accepted the appeal and struck off entire proceedings" [2006 PTD 978 in the case of Messrs Forte Pakistan (Pvt.) Ltd., Karachi v. Director- General Intelligence and Investigation (Customs and Excise), Karachi and another.
(viii) The Assistant Collector of Group-II also committed a grave illegality while issuing the show cause notice in the capacity of Adjudicating Authority on the strength of a report, which was signed by him as one of, the Member of the Committee which examined the goods, while doing so he lost his impartiality, fairness and judicious approach, rendering the impugned show cause notice patently illegal, ab-inito and void by virtue of the fact that one cannot be judge of his own cause and the said proposition of law hold strength from reported judgment 2011 PTD (Trib) 788.
(ix) That entertaining an anonymous complaint forwarded to President of Pakistan is of no legal effect as it is settled preposition of law that no action can be initiated on anonymous complaint, rendering the action contrary to the preposition of law and settled principle that no action is warranted on any anonymous complaints, which are invariably forwarded by unscrupulous persons for hindering the smooth working of the department and to exert pressure to fulfill their nefarious design. Rendering the whole procedure as void, ab-inito and suffer from legal infirmity.
(x) That for investigation of the contents of the complaint formation of committee for conducting joint examination is also illegal and void as there is no provision in the Customs Act, 1969, wherein a committee can be constituted for preparation of any report. Hence, any report so prepared by the said committee is also nullity in law as it is without substance and contrary to the provision of the section 198 of the Customs Act, 1969. Beside there also least exist any notification Public Notice or Standing Order authorizing the committee to conduct examination of the consignment as per the expression of section 198, of the Customs Act, 1969. Resultant, reliance on the report of committee is of no legal effect as it is in the absence of any legal sanction and as such having no binding force as held by Superior Court of Pakistan in its reported judgments 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, 2006 PTD 674 Pakistan Dry Battery Manufacturers Association v.
Federation of Pakistan and 2010 PTD (TRIB) 787 B.F.J. Enterprises v. Additional Collector of Exports.
(xi) The authority for conducting examination under Section 198 of the Customs Act, 1969 is notified at Serial No, 95 of the Notification No, 371(1)/2002 dated 15-6-2002 is "Examiner. Who in the case of appellant no-where confirmed the goods as job-lot or stock-lot, rather he endorsed the examination report reading as: "Desp. (1) Test Liner paper/Board App.7000/kgs (2)One side coated duplex Board App. 4000/kgs With Kraft back (3)Brown Kraft Paper Card/App. 1,000/kgs (4)White Kraft paper App. 1,500/Kgs (5)One side poly coated paper. App 100/kgs (6)Butter paper App. 400 Kgs (7)Printed/misprinted designed paper waste. App 3000/kgs
(8) Rest in printed/misprinted Duplex Board waste App. 25194/kgs Confirmed the goods are waster paper except items Nos. 1, 2, 3, 4, 5, 6, check weight at the time of loading ' Note: ' Goods were imported declaring waste paper. However goods at Serial Nos. 1, 2, 3, 4, 5, 6, of examination report are not waste paper as the condition of the above mentioned paper in above para are not apparently good. However R/sealed sample of paper of each item is forwarded to the group as well as to AIB to determine whether the goods/paper on Serial Nos. 1 to 6 may be treated as standard or otherwise. Confirm from their own end, Goods are ready for inspection to confirm all aspects
(xii) The official conducting the examination at no place categorized the goods of appellant as job-lot or stock-lot. To the contrary, he categorized the goods numbering from 1 to 6 as "Standard and 7 and 8 as Waste" both are importable and not restricted under any Appendix to the Import Policy Order, 2010-2011. The remarks given as regards to "Job-lot" are not of his rather of some other person, who never examined the goods and as such his opinion cannot be considered for every practical purpose under law and as held by Division Bench of Hon'ble Appellate Tribunal in Customs Appeals Nos. K-1292 and K-680 of 2000 Daily Mehran v. Collector of Custom (Adjudication) Karachi.
(xiii) That irrespective of the said fact it was mandated upon the said officials to submit comprehensive report in context with the definition of stock/job lot given in. Sub-Paras (5) and (6) of para ,1 of CGO 12/2002 as directed by AIB instead of forwarding a report of committee dated 4-1- 2011 summarily holding the goods of the appellant simultaneously "job-lot" and "stock-lot", despite distinctively of different attributes. Irrespective of the said fact that the said report was prepared without the association of the appellant and complied by a committee, formed without backing of legal sanction and nullifying the report endorsed on the reverse of GD on the basis of inventory prepared under section 79(1) of the Customs Act, 1969 prior to filing of GD, it is appropriate for the appellant to comment on that for the sake of regularization and for enabling your authority for reaching at a judicious decision and to proceed with the verbatim of the word job-lot given in para 1 of CGO 12 of 2002: "Job Lot: Job lot is a collection of odds and ends for sale as one lot. Normally these are goods of inferior quality. To cater to the needs of different customers a supplier varies specifications, colour schemes etc. It is a normal practice to produce slightly more than the order placed so that after rejection, damage etc., there is still enough quantity left to meet the demand of the customer. After selling the goods to a few buyers, the supplier has an assortment of goods with slight modification or differences. These when put into a lot are called "job-lot" and are generally sold at low prices."
(xiv) The criteria laid down in the said definition for determination of any product as "job-lot" is based on two attributes i,e, (i) the goods should be collection of "odds" and "ends" and put for sales as one lot and (ii) those should be of inferior- quality. Since, neither the section 2 of Customs Act, 1969 nor Chapter-I of Customs Rules, 2001 or para 1 of CGO 12/2002 contain the definition of the words, "odds and ends". The definition given in Dictionary has to be taken into consideration, the 20th Century Dictionary was consulted, which defines the words "odds" as "a material unpaired or not matching" and "ends" as "last point or portion of any good". Meaning thereby the, collection of "odds" means that none of the goods should be in pair or matched with to/with each other.
Whereas the word "ends" means last point of portion of any product e.g. 1/4 meter of the product.
Any product falling under the said definition answer to the 1st condition of the definition of word "Job-lot". For considering the goods as job-lot it should be also of inferior quality as per condition No, 2.
(xv) That if the examination report is considered, the Examiner has segregated the goods in question in two items (i) standard goods and (ii) as waste paper. Whereas, to the contrary in the note, he endorsed 2 confusing observation i,e, (i) Despite considering items Nos. 1, 2, 3, 4, 5 and 6 of the examination report as standard and 7 and 8 as waste. Despite the said categorical opinion the further opined that "the condition of the said goods is apparently not good (ii) drew sample and forwarded those to Group and AIB simultaneously to determine their quality, whether those are standard or otherwise. In his note he never formed any opinion, hence, through any figment of imagination, it cannot be considered that the goods of the appellant are "job-lot" and "stock-lot" or both simultaneously. Resultant, the endorsed examination report/note and remarks has to be examined in the light of definition of job lot given in clause (v) of para I of CGO 12/2002. The goods in questing, does not provide answer to the definition of job-lot, "odds" and "ends" and neither the goods mentioned at Serials Nos. 1 to 7 of the examination report can be considered as of inferior quality. Hence, the goods in question are not attracted by the definition of "job-lot" or "stock-lot" or both and stance of the appellant stood vindicated from the umpteenth judgment of the appellant authority and Order-in-Original No,17 of 2008 dated 23-10-2008 passed by Deputy Collector of Customs Appraisement AIB, Custom House, Karachi and order-in Customs Appeal No,K-1037 of 2004 Messrs Markatiya Corporation v. The Collector of Customs, Sales Tax and Central Excise (Adjudication) Karachi-I.
(xvi) The said judgment was assailed in the High Court of Sindh by the Collector of Customs (Appraisement) through Customs Reference No, 62 of 2008 under the provision of section 196 of the Customs Act, 1969. The Hon'ble High Court of Sindh dismissed the reference in limine, while holding that the charges of mis-declaration in regards to quality of the goods stood washed away from availing the option of provision of section 79(1) of the Customs Act, 1969 and so the importability under Import Policy Order. Resultant the order of the Tribunal attained finality and has to be used as reference on the cases identical/similar to the facts and law of the order of the Tribunal. The appellant case falls within the four corners of the said judgment and has to be decided in the light of the said precedent holding field firmly,
(xvii) That the words "stock-lot" is defined in sub-para (vi) of para 1 of CGO 12/2002, reading as "the goods of this description are different from the goods of job-lot in the sense these are not different in sizes, specification or colour etc. These are the goods which are kept in stock un-sold because of change in taste, market condition or slide depreciation in quality because of age etc." The goods of appellant even does not answer the said definition as these are not finished goods, rather these are raw material, the goods produced from these shall be the ultimate product and out of which stock-lot goods will emerge after sale, attracting the definition given in sub-para (vi) of para 1 of CGO 12/2002. It is imperative to state further that in the ends product of the paper, there exist no terms of "stock-lot" because "change in taste is never exist, neither market condition affect those nor the goods so produced are depreciated in quality because of age." Therefore, intermediately raw material imported by appellant in the shape of paper/board or waste least fall within the preview of stock-lot rendering the observation/ opinion of the committee having no legal sanction washed away, which was otherwise contrary to the endorsed examination report having legal effect under the provision of section 198 of the Customs Act, 1969. Reliance is placed on order of the Tribunal in Customs Appeal No, 118 of 2007.
(xviii) That irrespective of the above fact, it is imperative for the appellant to add further that the custom has no mandate to check the quality of the imported/exported goods, unless any restriction has been laid down by the Pakistan Standard Quality Control Authority, which has issued S.R.O. Nos. 818(I)/82 dated 29-8-1982, 1203(1)83 dated 31-12-1983, 979(I)/87 dated17-12-1987, 267(I)/88 dated 13-4-1988, 983(1)188 dated 29-10-1988, 157(KE)/92 dated 29-6-1992, 453(I)/93 dated 26-5-1993, 454(I)/93 dated 27-5-1993, 451(I)/93 dated 31-5-1993, 452(I)/93 dated 31-5-1993, 638(I)/2001 dated 12-9-2001, 705(I)/2001 dated 10-10-2001 and 6(I)/2002 dated 4-1-2002 issued under section 9 of Pakistan Standard Institution Ordinance, 1961 and subsequent promulgation of the Act. None of the notification issued to this date by the PSQCA are in regards to paper and paper product, resultant objecting to the quality or determination of the quality of the imported goods i,e, paper or its products suffer from lack of power as held by Hon'ble High Court of Sindh in its reported judgment PLD 1992 Karachi 199 Tawakkal General Export Corporation v. The Collector of Customs, Exports.
(xix) That as per dictum laid down by the High Court, in the absence of any notification for checking the quality of the imported goods of the appellant i,e, paper is without jurisdiction and lawful authority and of no legal effect. Rendering the formed opinion other than the officer who conducted the examination and endorsed report on the reverse of GD and of the Committee are also of without jurisdiction, and lawful authority and of no legal effect and should not had considered valid under law by the Assistant Collector of Customs, Group-II for issuance of show cause notice and respondents for passing order-in-original/ appeal.
(xx) That it is imperative for the appellant to state that his foods mentioned at Serials Nos. 1 to 6 of the examination report as "standard" and 7 and 8 as "waste" has to be assessed under section 80 of the Customs Act, 1969, on the basis of data of import maintained under Rule 110 of the period given in Rule 107(a) of the Customs Rules, 2001 of the identical/similar goods transaction value expressed in section 25(6) of the Customs Act, 1969 with the application of clause (d) ibid as per policy decision given by the worthy Collector in file No, SI/ MISC/10/1999-PA (CY) W.W. While holding "that when the goods are assessed for standard goods value, the goods are to be treated as prime quality and no action in regards to ITC may be taken in view of the past practice". While adhering the said direction, the Additional Collector of Customs, Appraisement-II vacated the show cause notice in a similar case vide Order-in-original No, ITC/06/2000-IV dated 22-8-2002, wherein contravention was framed while considering the goods as joblot/ stock-lot.
(xxi) That the identical/similar goods has been allowed clearance in the past and even now without being treated those as joblot/stock-lot as evident from GD No, KPQI-HC-15336 dated 18-5- 2010, KPQI-HC-15615 dated 21-5-2010, KAPR-HC-88986 dated 24-5-2010 KPQI-572 dated 13-7-2010, KPQI-HC-1490 dated 28-7-2010,KPQI-HC-1920 dated 5-8-2010, KPQI-HC3810 dated 31-8-2010, KPQI- HC-3852 dated 1-9-2010, KTQIHC-62 dated 1-10-2010, KAPR-HC-54703 dated 5-1-2011, therefore as per principle of natural justice his consignment should had been allowed clearance as per existing practice in vogue as the precedent has to be adhered as held by Lahore High Court Lahore in reported judgment PLD 1977 Lahore 1392 Nazir Ahmed Tajdin v. Deputy Collector of Customs, Lahore and 2 other respondent, while allowing the Petition No, 585 of 1977 on 23-7-1977. That by issuance of show cause notice by the Assistant Collector and passing of order-in-original by respondent No, 1 has treated the appellant differentially, which is prohibited under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. The Honourable Superior Court of Pakistan in reported judgment 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts have observed that "there exists no power to target incidence of tax in such a way that similarly placed person be dealt not only this similarly, but discriminatingly". Whereas, in reported judgment 2005 SCMR 492 the Hon'ble Supreme Court held that "A facility allowed to someone and denied to other is discrimination"
(xxii) That despite supply of all the authorities and the GDs showing clearance of identical goods and the order of the respondent No,2, wherein he allowed appeals in similar nature of case, and policy decision taken by the Collector of Customs (Appraisement) in file No,SI/Misc/118/2011-II dated 23-4-2011, wherein it was decided that henceforth no consignment of paper shall be termed as job-lot or stock-lot as the paper fails to provide the answer to the said definition, the respondent No,2 rejected the appellant appeal and showed his mala fide inconsistency and discrimination, which needs to be noted by the Hon'ble Tribunal for taking an appropriate action permitted under law and for reporting the said fact to the Chairman, F.B.R. And Customs Appellate Tribunal.
4. The department representative Mr. Mir Alam supported the order passed by the respondents, argued strictly in accordance with the written comments inter-alia:--
(i) The allegation is not relevant. It would be seen that order-in-original was issued by the appropriate officer.
(ii) Contents of this Para are not admitted. There is no legal lapse because orders were passed by the competent authority.
(iii) This is repetition of ground No, (ii) so same comments for this Para also.
(iv) Without prejudice, it is stated that the consultant has misinterpreted the Court's judgment. It is understood that under section 223 of the Customs Act, 1969 the judgment prohibited the Board from giving guidelines or directions for adjudicating quasi-judicial cases. In fact FBR can't give guidelines or pressure to adjudicating officer for adjudicating any case. The concerned authority is at liberty to decide any case following/observing provisions of section 179 without hearing any pressure whatsoever and even from the FBR. Provisions of section 223 have separate interpretation than the provisions of section 179 of the Customs Act, 1969.
(v) Without prejudice, it is stated that the officers of Directorate General of Intelligence and Investigation FBR are not delegated with power of adjudication under section 179 of the Customs Act, 1969. What is the correct detail of the cited case is not known whereas the DCA-III is empowered to adjudicate the case of his jurisdiction.
(vi) No comments can be offered on this ground which is continuity of other grounds. It is stated that Customs Act, 1969 is a special statute and legal provisions of the same have been adhered to accordingly.
(vii) From the contents of these examples, it is stated without prejudice that perhaps these matter related to those who were not having vested jurisdiction.
(viii) The consultant has not realized the gravity of offence which has been directly reported by someone to President of Pakistan which upon verification by a committee comes true rather he is pleading case against the Government cause. He has stick to the centre that show cause notice was issued by ACA-II having no jurisdiction and order-in-original was passed by DCA-II. They had at the initial stage complained about delay in clearance of consignment. Now pleading for jurisdiction. It is against reiterated that the order-in-original was passed by the officer of respective jurisdiction hence legal.
(ix) No comments are required to be given as the said complaint had come true on physical verification. He has perhaps not thought about the revenue loss and foul play of the appellant. It is also felt that moving application under section 79 before filing of GD was willful act and was done on knowing about the said complaint from insiders.
(x) It is again repletion of Ground No, (ix) and the consultants want to help the importer who has willfully miss-declared the contents/description and falling that it is going to checked in pursuance of an information be changed the modus operation by seeking shelter under section 79 of the Customs Act, 1969.
(xi) The whole provisions of section 198 along with it provisions has to be kept before while arguing about this Section. Complete provisions of section 198 have not been produced. Reliance has been placed at S.No, 95 of S.R.O. 371(1)/2002. Hence no comments can be offered.
(xii) The report of the committee is above all authentic and a member of Paper Merchant Association had also witnessed the examination.
(xiii) The action taken is part of job of relevant authority in order to satisfy him about the genuineness of the declaration of importer.
(xiv)The definition of job-lot and stock-lot in given Para 2(t) & (g) read with S.No, 7 of Appendix of an Import Policy Order, 2009-2010 which is most relevant.
(xv) Same comments as for ground No, (xiv) above.
(xvi) Same comments as for ground No, (xiv) above.
(xvii) Same comments as for ground No, (xiv) above.
(xviii) Beside comments on ground No, (xiv), it is stated that Ministry of Commerce governs import of goods through Import Policy Order customs has to follow the provisions of Import Policy Order.
(xix) Same comments as for ground Nos. (xiv) and (xviii) above.
(xx) No comments can be offered in this ground because neither any proof has been given nor any evidence produced in support of alleged past clearance.
(xxi) No comments can be offered in this ground because neither any proof has been given nor any evidence produced in support -of alleged past clearance.
5. We have heard the rival parties and perused the case record. Following observations are made by, this forum:-
(i) That the goods can be either "job-lot" or "stock-lot" not both simultaneously because both have distinctive and different attribute.
' Para (v) "Job Lot: - Job lot is a collection of odds and ends for sale as one lot. Normally these are goods of inferior quality. To cater to the needs of different customers a supplier varies specifications, colour schemes etc. It is a normal practice to produce slightly more than the order placed so that after rejection, damage etc., there is still enough quantity left to meet the demand of the customer. After selling the goods to a few buyers, the supplier has an assortment of goods with slight modification or differences. These when put into a lot are called "job-lot" and are generally sold at low prices."
(ii) The criteria laid down for the term job-lot in the definition is for determining of any product as "job-lot" is based on two attributes i,e, (i) the goods should be collection of "odds" and "ends" and put for sales as one lot and (ii) those should be of inferior quality. Any product falling under the said definition must answer to the 1st condition of the definition of word "Job-lot". For considering the goods as job-lot it should be also of inferior quality as per condition No,
2. The examination report of the consignment in question does not answer the said definition as the examination conducted by the examiner and subsequently by the committee at no place stated that the goods imported are collection of odds and ends and of inferior quality confirming that these stood excluded from the definition of "Job-Lot".
(iii) That to the contrary, the examiner segregated the goods of the consignment in two categories
(i) standard papers goods and (ii) waste paper and thereafter, he endorsed a note containing confusing observation i,e, (i) despite considering items Nos. 1, 2, 3, 4, 5 and 6 as standard and 7 and 8 as waste despite not warranted in the presence of categorical opinion above in the examination report i,e, "the condition of the said goods is apparently not good (ii) drew sample and forwarded those to Group and AIB simultaneously to determine their quality, whether those are standard or otherwise. In his note he never formed any opinion in regards to the term "job-lot" or "stock-lot".
Hence, through any figment of imagination, it cannot be considered that the goods of the appellant are "job-lot". Resultant, the endorsed examination report/note and remarks has to be examined in the light of definition of job-lot given in clause (v) of para 1 of CGO 12/2002. The goods in question does not provide answer to the definition of job-lot which is the collection of "odds" and "ends" and neither the goods mentioned at Serials Nos. 1 to 7 of the examination report can be considered as of inferior quality. .Hence, the goods in question are not attracted by the definition of job-lot.
(iv) The goods of appellant even does not answer the definition of "stock-lot" as these are not finished goods, rather raw material, goods produced from these shall be ultimate product and out of which stock-lot goods will emerge after sale, attracting the definition given in sub-para. (vi) of para. 1 of CGO 12/2002. The term of "stock-lot" dos not exist in paper because of "change in taste is never there, neither market condition effect those nor the goods so produced are depreciated in quality because of age." Therefore the goods imported by appellant in the shape of paper/board or waste does not fall within the purview of stock-lot rendering the observation/opinion of the committee without any substance.
(v) That renewed policy decision taken by the Collector of Customs (Appraisement) in file No,SI/Misc/118/2011-II dated 23-4-2011, wherein it was decided in principle that hence forth no consignment of paper shall be termed as job-lot or stock-lot as the paper fails to provide the answer to the said definitions.
6. In the light of foregoing it is concluded that the impugned orders are unlawful, illegal coram non- judice, discriminatory and being issued without jurisdiction and based on inapt interpretation of sub-Paras (v) and (vi) of Para 1 of CGO 12/2002 dated 15-6-2002 and in contravention of the infield policy decision of the collectorate. The impugned orders are therefore, set aside and subject appeal is accordingly allowed.