' ADNAN AHMED, MEMBER (JUDICIAL-II).---By this order, I intend to dispose off Customs Appeal No.K- 155 of 2014 filed by the appellant against Order-in-Original No.310 of 2013/2014 dated 26-12-2013 passed by respondent No.3.
2. Brief, facts of the case as stated in the impugned order are that a credible information was received on 4-9-2013 that smuggled/non-duty paid LED/LCD TV are brought at inter city Bus Terminal, Yousuf Goth, Karachi from Quetta for onward supply to the other cities of Sindh using a modus oprandi that the smuggled/non duty paid LED/LCD TV's are firstly taken to Saddar. Market and then refrigerators are loaded in the back of the vehicle to cover the LED/LCD TV's and also a receipt of a wholesale shop is made and kept in the vehicle to show lawful possession. It was further informed that LED/LCD TV's were being loaded on a Mazda Vehicle bearing registration No. JY-0080. Pursuant to the said information ASO Team posted at Mobile Squad Check Post Super Highway near Toll Plaza was alerted to foil the attempt. Reportedly the said loaded vehicle was taken from Yousuf Goth to Hashoo Centre, Sadder, Karachi from where 3 refrigerators were loaded on the vehicle to disguise the law Enforcement Agencies. At about 2:00 pm the said vehicle was squaded near Toll Plaza heading towards Hyderabad. Accordingly, the said vehicle Mazda bearing Regn No.JY-0080 loaded with cartons of foreign origin/assorted LCD/LED TV's and refrigerators duly covered with "Tarpal" was intercepted. The occupant/ driver/owner of the vehicle identified as Noor Muhammad son of Muhammad Bux was asked about the goods loaded on the vehicle to which he replied that refrigerators were loaded on the vehicle being dissatisfied with his statement and having specific information a search was made in the presence of Mushirs namely Farhan Khan and Muhammad Danish which revealed that the foreign origin assorted LED/LCD TV's and refrigerators were loaded/kept on the vehicle. The 3 refrigerators were kept in the back of the vehicle to cover LED/LCD TV's so as to camouflage. The Law Enforcement Agencies, therefore the driver/owner of the- vehicle was asked about the legal import documents or any other documents to substantiate lawful possession/purchase/ importation of the said goods to which he produced one receipt of Messrs Whole Sale Point A/5, Hashoo Centre, A.Haroon Road, Saddar, Karachi in the name of SS. Hyderabad dated 4-9-2013 and told that one Haji Saeed was the owner of the goods and he has loaded the goods on his vehicle against hire. However, as there existed specific information and being dissatisfied with the receipt produced the goods so recovered were taken into possession to ship the same ASO, HQ NMB-wharf Karachi along with the said occupant/driver/owner of the vehicle to complete further legal formalities. The seizing officer examined the LED/LCD TV's and refrigerators off loaded, from Mazda bearing Registration No JY- 0080 which resulted in recovery of 107 numbers of foreign Origin LED/LCD TV's and 03 Refrigerators.
The occupant/driver /owner of the vehicle was asked to call the owner of the goods but no body came forward to claim the, goods. As there existed terminal Yousuf Goth RCD, Highway, Karachi and the fact that non duty paid goods were brought into country through unauthorized routes other than the routes as declared under Sections (9) and (10) of the Customs Act, 1969, therefore aforesaid goods valuing to Rs.2,967,069.00 involving duty and taxes CD Rs. 42,998.00 Sales Tax 31675.00 AST 6540.00 and Income Tax 11227.00 totaling Rs. 1,913, 645.00 were seized along with conveyance/vehicle under section 168 of the Customs Act, 1969 for violation of sections 2(s) 16 and 156 (2) and 157(2) of the Customs Act, 1969 punishable under clauses (8) (89) & (90) of section 156(1) ibid read with section 3(1) of Imports and Exports Control Act, 1950. Notice under Section 177 of the Customs Act, 1969 was, served upon the owner of the goods care of occupant driver/owner of the vehicle and the occupant driver/owner of the vehicle accordingly.
3. The respondents Nos. 2 and 3 submitted the reply to the show-cause notice issued by respondent No. 3 substantiated with purchase receipt and verified by the seller upon receipt of notice under section 26 of the Customs Act, 1969 from the subordinate of appellant. The respondent No. 3 after conducting multiple hearing passed order-in-Original dated 26-12-2013.
Para,12.Of the order is relevant, same is 'reproduced here-in-under: "I have gone through the case record and heard the arguments of both sides in detail. The emerging facts of the case are that the department have seized LED/LCD/Plasma TV's 107 Nos. And Refrigerators 3 Nos. Along with conveyance/vehicle. It has been mainly contended on behalf of the respondent/owner of the goods that all these goods were purchased from local market in Karachi City for his sale point/retail shop which he owns in the name of S.S. Electronics, Hyderabad. He also produced various cash memos in this behalf. It has been further stated that these cash memos were produced also before the Seizing Agency on which they carried out verification as well.
However, the department did not own such verification during adjudication proceeding, therefore the department was asked to verify the memos. The department issued notices under Section 26 to the shop keepers in reply the shop keepers acknowledged that all these goods were sold by them. The department as such does not deny that the goods were bought from the local market.
However, stand of the department is this that these are foreign origin imported goods and are to be dealt under section 156(2) of the Act. According to which the onus of discharging the burden of proof rest on the respondent. It is important to observe that these goods have not been seized on the border. The department has reported the seizure at Toll Plaza, and has stated that the goods were en-route to Hyderabad having been loaded from Karachi. It is therefore clear that these were being transported from Karachi city. Keeping the seized TV's and the fridges in view it is also clear that in order these should be taken to be smuggled, prima facie these should be of foreign origin. In his context the seize goods appears to be in 2 categories. Part of the goods shows the foreign origin as Thailand, Malaysia etc. Whereas, the remaining parts only show the name of the company as "Samsung" without any indication of foreign country where it was made. It is well known that many locally made goods bearing name of foreign brands/logos are found selling openly in the market without indicating the origin. The people buy these for these brands on much cheaper price although it is also known that such goods are manufactured locally. In this case the department has initiated contravention/seizure proceeding on the charges of 2(s) i.e. Of smuggling, whereas the impugned/seized goods i.e. LED/LCD TV's etc partly show only the name of the company and do not show the manufacturing origin as such. It is also the fact that the Samsung LED/LCD TV's are being manufactured in Pakistan by Messrs Orient, Lahore. Beside this LG and Haier range of product including air conditioners and refrigerators are being also manufactured in Pakistan. Where only the name of the companies are indicated without showing manufacturing origin. The impugned TV's LED/LCD are the same as the Make and Models. Being manufactured by M/s. Orient, Lahore in the name of Samsung Co. In Pakistan. Given this position I cannot agree with the smuggling charges with respect to the items which are being made by the local manufacturer in the name of Samsung and Haier bearing the same appearance with regards to Design, Model and Logo etc. How can the section 156(2) ibid be invoked for the goods which are being manufactured locally?
How would any buyer know that these can be smuggled when the manufacturing of these goods and the' market sale is well established? In the specific circumstances/fact of this case in order to invoke section 156(2) ibid there must be some prima facie foreign origin indication with respect to foreign manufacturing country on the goods only then the goods can be differentiated from the those locally made. I therefore hold that the seized goods i.e. TV's and Fridges which do not show foreign manufacturing origins and the likes of which are already been manufactured in Pakistan, can' not be brought in the fold of Section 156(2). All such tv's, fridges were therefore identified immediately and relief. However, the other parts of the seized goods where foreign origin is indicated on the goods such as "Made in Thailand, Malaysia etc." the burden of proof lies on the respondent to bring forth the evidence that these were duty paid and brought legally in Pakistan.
The respondent hold the cash memo. Which were verified by the department from which it can be gathered that the respondent has bought these from the market in good faith, however, these goods clearly bear the foreign manufacturing origin. Therefore, the evidence for legal imports of these goods is required which he has not able to do so. Therefore, the charges raised in the show- cause notice in respect of these goods stand established, these goods are accordingly confiscated along with conveyance Mazda Truck Reg. No JY-0080.s since TV's are notified items under section 2(s) therefore these cannot be redeem on fine in terms of S.R.O. 499(1)/2009 dated 13-6-2009. The confiscation is therefore outright. A penalty of Rs.25000.00 (twenty five thousand) is also imposed on the respondent. As for the seized conveyance it is allowed to be redeemed on payment of fine equal to 20% of its assessed value in terms of S.R.O. 466(1)/2009 dated 13-6-2009. A penalty of Rs.10,000.00 (Ten thousand) is also imposed on the owner/claimant of the vehicle.
4. Being aggrieved by the order, the appellant, filed the instant appeal on the grounds reading as:- -
(i) That 107 sets of foreign origin LED/LCD TV's and three (03) Refrigerators were intercepted and subsequently seized on 4-9-2013 by the staff of Anti-smuggling organization, NMB Wharf, Karachi during transportation, at Super Highway near Toll Plaza, Karachi the aforementioned LED/LCD TV's were smuggled/non duty paid and brought at intercity Bus Terminal Yousuf Goth, Karachi from there the same were loaded on Mazda Mini Truck bearing Registration No. JY0080 for transportation to onward destination.
(ii) That the above mentioned smu ggled and non duty paid LED/LCD TV's were firstly taken to Saddar market and 03 refrigerators were loaded on the back of the vehicle to camouflage the smuggle goods and receipt of entire goods was made to substantiate the legal importation/possession of the smuggled goods to: disguise. The Law Enforcethent Agencies.
(iii) That as per facts and circumstances of the case a receipt in the name of S.S. Electronics, Hyderabad was being produced by the respondent No. 2 (occupant/driver/owner of the vehicle) on behalf of the respondent No. 1, issued by whole sale point A/5, Hashoo Centre, Abdullah Haroon Road, Saddar, Karachi having no NTN No.
(iv) That during the adjudication proceeding the respondent No. .1 had submitted 05 more sale receipt v/z (i) Messrs Surmawala, A-4, Hashoo Centre, A.Haroon Road, Saddar, - Karachi (ii)
Abdullah Nawaz Electronic, Shop No. A-3 and L-36, Hashoo Centre, Saddar; Karachi (iii) Messrs Wholesale Point Hashoo Centre, Saddar, Karachi. (iv) Messrs Crown Electronic, Hashoo Centre, Saddar, Karachi and (v) Messrs Fahad Electronics, Hashoo Centre, Saddar, Karachi which is contrary to the respondent previous act as at the time of interception only 1 receipt was issued by Messrs Wholesale point was produced, where under the whole goods.Were sold out by the said shop. This dissimilar action of the respondents shows an afterthought and clear cut involvement of possession/ transportation of smuggled/non duty paid goods in terms of subsection (s) of section 2 of the Customs Act, 1969.
(v) The sale receipts were further investigated and notice under section 26 of the Customs Act, 1969 were issued to the above mentioned seller through courier service (TCS) where under the valid legal documents pertaining to the import of seized LED/LCD/TV's and Refrigerators were sought.
(vi) The replies from the shop keeper were deposited by hand in the office of Assistant Collector, Headquarter-I through the respondents and the same were not furnished in terms of section 215 of the Customs Act, 1969 no import documents pertaining to seized goods were provided by the purported seller of the smuggled goods. The operative parts of the replies of the above mentioned seller are reproduced as under:-- a. Messrs Surmawala: ' It is submitted that we are dealing the business of LED/LCD TV's as retailer, not as an importer.
(ii) We sale purchase LED/LCD TV's locally manufactured or assembled in open market.
(iii) We also confirm that we had sold forty (40) pieces Samsung 32E-4003 Samsung LED TV's are 3 pieces Refrigerators Heir to Messrs S.S. Electronics Hyderabad vide bill Nos. 085 and 102 dated 3 Sep., 2013 which are locally manufactured/assembled in Lahore.
(iv) The information listed at "A" to "K" called from us by the Model Customs Collectorate of Preventive, Custom House; Karachi is not warranted as the goods sold to our customers are locally manufactured assembled by the companies in Lahore.
(v) As our business turn-over does not come under the threshold required for Sales Tax Registration under Sale Tax Act, 1990 therefore we do not file Sales Tax monthly. Return. b. Messrs Abdullah Nawaz Electronics :
(vi) It is submitted that we are dealing the business, of LED/LCD TV's as retailer, not as an importer.
(vii) We sale purchase LED/LCD TV's locally manufactured or assembled in open market.
(viii) We also confirm that we had sold twenty five (25) pieces Samsung 32E-4000 Samsung LED TV's to Messrs S.S. Electronics Hyderabad vide bill No. 0463 dated 03.Sep., 2013 which are locally manufactured/assembled in Lahore.
(ix) The information listed at "A" to "K" called from us by the Model Customs Collectorate of Preventive, Custom House, Karachi is not warranted as the goods sold to our customers are locally manufactured assembled by the companies in Lahore.
(x) As our business turn-over, does not come under the threshold required for Sales Tax Registration under Sale Tax Act, 1990 therefore we do not file Sales Tax monthly Return. c. Messrs Whole Sale Point :
(xi) It is submitted that we are dealing the business of LED/LCD TV's as retailer, not as an importer.
(xii) We sale purchase LED/LCD TV's locally manufactured or. Assembled in open market.
(xiii) We also confirm that we had sold ten (10) pieces Samsung 32E-420 Samsung LED TV's & 05 Pieces Sony 32 EX 330 to Messrs S.S. Electronics Hyderabad vide bill No.1949 dated 4 Sep., 2013 which are locally manufactured/assembled in Lahore.
(xiv) The information listed at "A" to "K" called from us by the Model Customs Collectorate of Preventive, Custom House, Karachi is not warranted as the goods sold to our customers are locally manufactured assembled by the companies in Lahore.
(xv) As our business turn-over does not come under the threshold required for Sales Tax Registration under Sale Tax Act, 1990 therefore we do not file Sales Tax monthly Return. d. Messrs Crown Electronics
(xvi) It is submitted that we are dealing the business of LED/LCD TV's as retailer, not as an importer.
(xvii) We sale purchase LED/LCD TV's locally manufactured or assembled in open market.
(xviii) We also confirm that we had sold twenty (20) pieces Samsung 23 F-4003 Samsung LED TV's & 5 Pieces Sony. 32 EX 330 to Messrs S.S. Electronics Hyderabad vide bill No.197 dated 2 Sep., 2013 which are locally manufactured/assembled in Lahore.
(xix) The information listed at "A" to "K" called from us by the Model Customs Collectorate of Preventive, Custom House, Karachi is not warranted as the goods sold to our customers are locally manufactured assembled by the companies in Lahore.
(xx) As our business turn-over does not come under the threshold required for Sales Tax Registration under Sale Tax Act, 1990 therefore we do not file Sales Tax monthly Return. e. Messrs Fahad Electronics:
(xxi) It is submitted that we are dealing the business of LED/LCD TV's as retailer, not as an importer.
(xxii) We sale purchase LED/LCD TV's locally manufactured or assembled in open market.
(xxiii) We also confirm that we had sold five (5) pieces Samsung 40E-5000 Samsung LED TV's and two (02),43F Samsung LED TV's to Messrs S.S. Electronics Hyderabad vide bill No. 164 4 Sep., 2013 which are locally manufactured/assembled in Lahore.
(xxiv) The information listed at "A" to "K" called from us by the Model Customs Collectorate of Preventive, Custom House, Karachi is not warranted as the goods sold to our customers are locally manufactured assembled by the companies in Lahore.
(xxv) As our business turn-over does not come under the threshold required for Sales Tax Registration under Sale Tax Act, 1990 therefore we do not file Sales Tax monthly Return.
5. That the cautious study of above mentioned replies reveals that:--
(a) The same are manipulated / fake and far from genuineness of the case;
(b) The same are identical in nature and return in same dates i.e. 28-1-2013;
(c) The same are written by one author with minor difference in para (iii);
(d) The same were provided to the Assistant Collector of Customs by the respondent other than manner as mentioned in Section 215 of the Customs Act, 1969;
(e) The no valid legal documents pertaining to the importation of the impugned goods were produced to the authority;
(f) That all the purported seller of the imported goods that they had sold locally manufactured/assembled LED/LCD TV's whereas goods were foreign origin as mentioned in the seizure report.
(g) That after submission the replies to notice under section 26 of the Customs Act, 1969 (by hand not in accordance in terms of Section 215 of the Customs Act, 1969) and during the hearing before Adjudicating Officer/respondent No.3 the respondent had also taken the plea that the seized goods were local manufactured and assembled by Messrs Orient Group of Companies, Lahore which were purchased by the respondent No.1 from open market.
(h) That according to the order of the Adjudicating Officer/ respondent No.3, Messrs Orient Electronic was approached and entire inventory of the seized LED/LCD TV's was supplied' to them for verification, whether these TV's were locally manufactured by Orient Electronics or otherwise vide letter dated 6-11-2013 they were also requested to nominate their representative to examine the whole lot of seized LED/LCD TV's at the store situated at NMB Wharf, Karachi in response to aforementioned letter a representative was s appointed by Messrs Orient Electronic (Pvt.) Ltd. To check/examined the seized goods. He physically examined the lot of the seized goods at ASO/HQ, NMB Wharf, Karachi. The Model and Serial No. Of the seized TV's sets were examined by the representative of Messrs Electronic (Pvt.) Ltd., in detail to ascertain whether seize LCD's /LED's were assembled by them or not. Messrs Orient Electronic replied vide their letter dated 8-11-2013 that "the particulars like model and serial No. Etc. Given in the inventory attached with the aforesaid letter have been carefully checked. Besides, these television sets have also been inspected physically by our representative ...It is hereby confirmed that these TV sets are not assessmbled by us." The verification letter dated 8-11-2013 issued by Messrs Orient Electronic (Pvt.) Ltd., was furnished to adjudicating officer as he directed.
(i) That in view of the narrated facts it is crystal clear that the seized tv's sets were not manufactured by Messrs Orient Electronics as claimed by respondent No.
1. It has also established that the local receipt produced by the above mentioned respondent in support of their contention were fake. They produced manipulated receipts with the view to cover the Foreign Origin smuggled TV's sets as locally manufactured/ assembled by Messrs Orient Electronic (Pvt.) Ltd., and tried to get released their goods in the garb of locally manufactured/assembled. This act of smuggling committed by the respondent No.1 (Owner of the goods, namely Haji Saeed) not only causes the loss of legitimate revenue to the government's exchequer on account of duty/taxes chargeable thereon but also it is great fact to local industry which devastate the country's Economy.
(vii) That in the light of foregoing facts, the adjudicating authority was requested that the goods be confiscated outright with exemplary penalties on the respondent and his accomplishes i.e., the shop keeper who have supplied fake / wrong replies to disguise the adjudicating authority in response to the notice in terms of section 26 of the Customs Act, 1969 dated 23-10-2013 so that they may not produced such fake/forged documents/ comments in future. Moreover, Messrs Wholesale Point A/5, Hashoo Centre, A.Haroon Road, Saddar, Karachi who produced the receipt dated 4-9-2013 covering whole of the seized smuggled/non duty paid goods which was supplied primarily at the time of interception of the seized goods may also be penalized for this act.
(viii) That the respondent No 3/adjudicating officer has erred in law and not consider evidence and arguments advanced by the department as well as confirmation report by Messrs Orient Electronics (Pvt.) Ltd., and issued the impugned order-in-original dated 26-12-2013 wherein 62 smuggled LED/LCD TV's and 3 Refrigerators were released holding that the seized goods i.e., TV's and fridges which do not show foreign manufacturing origin and the likes of which are already been manufactured in Pakistan cannot be brought into the fold of Section 156(2) ibid. All such TV's fridges we therefore identified immediately and released.
6. The respondent submitted cross objection under subsection (4) of Section 194A of the Customs Act, 1969 on the memo of appeal stating inter alias:--
(ix) That under subsection (2) of section 194A of the Customs Act, 1969 the Board or Collector of Customs is empowered to file an appeal against an order passed by the Collector (Appeal) but such appeal shall be preferred by an officer of Customs not below the rank of Assistant Collector so authorized in writing. To the contrary, the instant appeal has been filed on behalf of the Collectorate, whereas affidavit has been signed by the Assistant Collector of Customs of Preventive. Which confirms that the appeal has not been filed by the Collector of Customs or under his due authorization, instead by the Assistant Collector of Customs on his own without any valid authorization of the Collector of Customs. The appeal cannot be filed by the Assistant Collector as per the expression of Section 194-A of the Customs Act, 1969. Beside annexing of authorization with the appeal is mandatory as per the expression of subsection (2) of section 194-A ibid.
(x) To elaborate further upon examination of subsection (2) of Section 194-A, it is observed that the Board or Collector of Customs if aggrieved by an order passed by the Collector, (Appeal), it, or as the case may be, he may prefer an appeal to the Appellate Tribunal such appeal shall be preferred by an officer, not below the rank of Assistant Collector of Assistant Director so authorized in writing by Board or the Collector or the Director as the case may be Emphasis laid upon in the expression is on "aggrieved", "Collector" or "Director" and "authorized in writing" by the Board or the Collector of the Director. "Aggrieved person" Denotes a person who has got a legal grievances i.e. a person illegally or wrongfully deprived of anything to which he was legally entitled to and Collector and Director mean, head of Collectorate or Directorate, whereas authorized in writing means Board or Collector of Director are empowered to authorize in writing on it or his behalf any of the Assistant Collector of Director to prefer appeal with the Appellate Tribunal and said authorization has to be filed with the appeal. The affidavit annexed denotes that the appeal has been filed by the Assistant Collector of Customs, MCC of Preventive on behalf of the Collectorate, while putting himself in the shoes of the Collector. The fact of the matter is that the appeals have been filed by Assistant Collector of Customs-MCC of preventive in his personal capacity. The Affidavit no where speaks about the authorization by the Collector. Since he has no authorization, same was not annexed with the appeal. The Assistant Collector considered the appeal purportedly to have been filed by Collector as the nomenclature of the appellant appear as Collector of Customs but not signed or verified by him. Record demonstrate that no authorization as expressed in subsection (2) of Section 194A was obtained from the Collector of Customs while filing the appeal and this fact stood validated from the language of the affidavit substantiate the said fact that he was not authorized by the Collector of Customs despite, mandated under law, resultant, the appeal deems not to have been validly filed in accordance with law. It has been held time and again by the Judicial Fora that a thing has to be done in the same manner as has been prescribed in the statute or not to be done at all, in reported judgment 2009 PTD 1799 Additional Collector of Sales Tax Messrs Associates Industries Ltd, it has been held that "so long as an appeal in the High Court is not filed and verified by Collector, it cannot be held to be competent". Same ratio was adopted in 2008 PTD 356. The Hon'ble Supreme Court for non following the expression of the statute went far ahead and made a rigid interpretation in 2006 SCM R 129 Director Directorate General of Intelligence and Investigation- Customs and Excise, Karachi v. Al-Faiz Industries (Pvt.} Ltd. and another that - When section 196 of the Act required filing of an appeal by the Collector then it can be filed only by the Collector and none-else. The appeals filed by the Director would be deemed to be absolutely illegal, incompetent and not maintainable
(xi) That as to the ground No 1 of memo. of appeal, it is based on fact of the case, which has been aptly discussed by the respondents Nos. 1 and 2 in the Appeals Nos. K-122 and K-123/2014 filed against Order-in-Original No. 310/2013-2014 dated 26-12-2013, hence need no comments being based on presumption/assumption and fabrication.
(xii) The ground No.2 of the memo. of appeal is also based on mutilated facts and to the fact of the Appeals Nos. K-122/2013 and 123/2013, therefore need no comments.
(xiii) The grounds Nos. 3 and 4 of the memo. of appeal is also based on material fact, hence needs no comments.
(xiv)The ground No. 5 is also based on fact and has been aptly dealt ' by the respondents Nos. 1 and 2 in the grounds of memo. of Appeals Nos. K-122 and 123/2013-2014, resultant, needs no comment.
(xv) The reference to section 215 in ground No 6 is misplaced as delivering of reply in the office of Assistant Collector, Headquarter is deems to be reply and serve in terms of Section 215 of the Customs Act, 1969, beside no observation has been given to the said effect by the respondent. No. 3 in its order hence the plea of the appellant is of no legal effect as being outside the charter of order-in-original.
(xvi) The stance taken by the appellant in ground No.7 is without any basis as he failed to prove the bona fide and genuineness of the bills and the replies to notices served under section 26 of the Customs Act, 1969 on the seller through incriminating evidence as per mandatory requirement of law. Beside law is silent in regards to not submission of identical type of reply and having. - same dates, hence the ground is in valid and need no consideration under law.
(xvii) The reference to Section 215 in the ground No. 8 is out of context as evident from its expression, enumerated here-in-below:
215. Service of order, decision etc.---any order or decision passed or, any summons or notice issued under this Act shall be served-- (xviii) By tendering the order, decision, summons or notice or sending it by registered post [or the courier service or by any other mode of transmission subject to acknowledgement receipt] [***] to the person for whom it is intended or to his agent; or
(xix) If the order, decision, summons or notice cannot be served in any manner provided in-clause (a), by affixing it on the notice board of the Customs House [;or] (xx)In case of electronic orders, decisions, notices or summons, when these have been sent to the recipient from the Customs Computerized system.]
(xxi) That the plea taken in grounds Nos. 9 and 10 and the attached Annexure "E" also lend no help to the appellant as the respondent No. 2 has no where taken the plea before the respondent No. 3 and the Hon'ble Appellate Tribunal that he purchased locally assembled LED and LCD TV's manufactured by Messrs Orient Electronic, instead stated with clarity that these were purchased from the local market, the goods/item freely available in the market are deems to be duty paid as held by Hon'ble Supreme Court of Pakistan in reported judgment 1995 SCM R 387 Sikandar A. Karim v. The -State. The Double Bench of the Hon'ble Supreme Court comprised of Justice Saeed-uz- Zaman Siddiqui and Justice Mukhtiar Ahmed Junejo held in unambiguous term that "If the item alleged to be smuggled by the prosecution were freely available in the open market and the import of such goods were not banned in the country, presumption could arrive that the goods in question were lawfully brought in the country unless contrary was shown". As per dictum laid down by the Hon'ble Supreme Court the Appellate Tribunal in Customs Appeal No.339/2000 Mr. Muhammad Hanif v. The State and 301/2003 Nasser Ahmed v. Collector of Customs, Sales Tax and Excise, Quetta that held that "to produce legal import documents is nothing but to put undue pressure on the business community inspite of the fact that it has been observed number of time by the Supreme Court of Pakistan that the goods which are freely available in the market are presumed to be have been legally imported and duty paid. Even otherwise no reasonable ground has been given in the order-in-original that even for the sake of arguments, it is taken that the receipt produced by the appellant and issued by Saifullah Khan have no legal status then also it cannot be concluded that the said transaction was illegal, making way to call upon appellant to produce import documents.
(xxii) The grounds Nos. 12 and 13 are repetition of the ground above to this, which has been commented upon and as such needs no further comments.
7. On the date of hearing the representative of the appellant argued in accordance with the ground of memo. Of appeal, on the other hand the consultant/advocate of the respondents Nos. 1 and 2 contended that the filed appeal is without any substance and even not maintainable under the proviso of subsection (2) of section 194A of the Customs Act, 1969 and this has been held in several reported judgments relied upon them in the cross objection and prayed for dismissal of the appeal being of no legal effect.
8. Rival parties heard and case record conscientious perused. Upon examination of subsection (2) of Section 194-A, it is observed that the Board or Collector of Customs if aggrieved by an order passed by Additional Collector of Customs, it or as the case may be, he may prefer an appeal to the Appellate Tribunal such appeal shall be preferred by an officer; not below the rank of Assistant Collector or Assistant Director so authorized in writing by Board or the Collector or the Director as the case may be. Emphasis laid upon in the expression is on "aggrieved", "Collector" or "Director" and "authorized in writing" by the Board or the Collector of the Director. "Aggrieved person "Denotes a person who has got a legal grievances i.e. a person illegally or wrongfully deprived of anything to which he was legally entitled to and Collector and Director means head of Collectorate or Directorate, whereas authorized in writing means Board or Collector and Director are empowered on it or his behalf any of the Assistant Collector or Director to prefer appeal with the Appellate Tribunal and said authorization has to be filed with the appeal.
9. The instant appeal has been filed by the Assistant Collector on the strength of affidavit annexed with the appeal, reproduction of which is of vital importance:-- "I, Jehanzaib Abbassi son of Altaf Hussain Abbasi CNIC No.43304-6228037-1 Assistant Collector (legal), Model Customs Collectorate of Preventive, Customs House, Karachi Adult, RIO Block-9, Clifton, Karachi Flat No. 1015 Ashiyana Apartment, Karachi do hereby state on oath as under:
(1) That I am authorized to file appeal on behalf of the Collectorate in this case, as such am well conversant with the facts of the case.
(2) That the accompanying appeal as well as this affidavit has been drafted under the Collector (Preventive's) instructions and the contents of same are adopted for the purpose of this affidavit for brevity sake.
(3) That whatever stated above and in the accompanying appeal is true and correct to the best of my knowledge and belief.
Sd/- (Jehanzaib Abbassi)
Assistant Collector
10. The affidavit denotes that it has been filed by the Collectorate, which is non entity by virtue of the fact that it is a department and cannot be termed within the ambit, of the word "aggrieved person", even otherwise Collectorate cannot file appeal; as the word "Collectorate" figure no where in the expression of section 194A(2). The fact of the matter is that the appeal has been filed by Assistant Collector of Customs-MCC of Preventive in his personal capacity and signed the appeal.
Confirming that he has no authorization of the Competent Authority i.e. Collector of Customs, further validated from the Affidavit and non annexing of valid authorization within the spirit of section 194A(2) of the Act. Resultant, the appeal deems not to have been validly filed in accordance with law. It has been held time and again by the Judicial Fora that a thing has to be done in the same manner as has been prescribed in the statute or not to be done at all, in reported judgment 2002 PTD 1799 Additional Collector of Sales Tax Messrs Associates Industries Ltd., it has been held that "so long as an appeal in the High Court is not filed and verified by Collector, it cannot be held to be competent". Same ratio was adopted in 2008 PTD 356. In 2013 PTD 1026 Collector of Customs Sales Tax and Central Excise v. Hussain and Company, Islamabad held that appeal filed without authorization of the Collector by the Law Officer is incompetent, hence same is not maintainable at fall. The Hon'ble Supreme Court for non-following the expression of the statute went far ahead and made a rigid interpretation in 2006 SCM R 129 Director, Directorate General of Intelligence and Investigation Customs and Excise, Karachi v. Al-Faiz Industries (Pvt.) Ltd., and another that when section 196 of the Act required filing of an appeal by the Collector then it can be filed only by the Collector and none-else. The appeals filed by the Director would be deemed to be absolutely illegal, incompetent and not maintainable Filing of an appeal after lapse of 30 days from the date on which order under section 194-B was served on Collector. The appeals would be barred by time---The appeals were not filed in accordance with law and there was contravention and violation of the mandatory provisions of law. Such appeals would be deemed to be nullities having no legal existence. Filing of the appeals after lapse of 30 days from the date on which the order under section 194-B of the Act was served on the Collector. The appeals would be barred by time, each and every word appearing in a section is to be given effect to and no word is to be rendered as redundant or surplus.' When the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred. If the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expressum facit cessare taciturn". In reported judgment 2013 PTD 372 Collector of Sales Tax and Federal Excise, Peshawar v. Cherat Paper Sacks Ltd., that "Power of Attorney had not been signed by the Collector but by an unknown person from the Collectorate of Sales Tax. Such person could not be considered aggrieved person under Section 36C of the Central Excise Act, 1944. Term "aggrieved person", if it was referable to an Officer of Sales Tax, then the word, Collector would be a sheer 'addition tb the statute and would make it redundant legislature had purposely used and signified two different expressions, which were "Collector" and "aggrieved person" redundancy, could not be attributed to the legislature. The Assistant Collector filed these appeals without any lawful authority and as one appeal against 2 respondents, order against whom are separate, resultant, separate appeal should had been filed, therefore in fact no appeal has been filed against Mr. Noor Muhammad.
Even otherwise, the appellant has no locus standi as the expression of subsection (2) of section 194-A of the Customs Act, 1969 and law laid down by the Superior Judicial Fora. I therefore, hold that the appeals have not been competently filed and as such are not maintainable and dismissed in limine.