' ADNAN AHMED, MEMBER (JUDICIAL-II).---Through this common order, I intend to dispose off 07 Appeals bearing Nos, 729 to 735/2014 filed under Section 194A(1) of the Customs Act 1969 against the Orders-in-Appeals Nos, 8740 to 8746/2014 dated 13.06.2014 passed by Collector of Customs (Appeals) (here-in-after to be referred as respondent No, 2) maintaining the Assessments Orders dated 24.03.2013 passed by Deputy Collector of Customs, Group IV, MCC of PaCCS, Custom House, Karachi (here-in-after to be referred as respondent No, 1).
2. Since, these appeals are being decided through this common order, which are based on similar facts and questions of law, therefore it is needless to reproduce facts of each case separately, hence for reference the facts of Appeal No, K-729/2014 are taken into consideration for decisions and which are:- "The appellant imported a consignment of PVC Textile coated fabric and his clearing agent filed Goods Declaration under section 79(I) and Rule 433 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 and deposited upfront duty and taxes of Rs, 575,021.00 vide cash No, C-KCSI- 008501-17.12.2013, KCSI-HC-95561-17.08.2013 with the MCC of Appraisement East. The GD was not auto processed instead selected for conduction of examination under 198 of the Customs Act, 1969 and Rule 435 ibid during which the goods were found as per declaration. Consequent to which the competent adjudicating authority as defined in Section 2(a) passed assessment order under Section 80 and Rule 438 ibid through which he assessed the value @ US$.
1.50/kg for levy of duty and taxes, appellant paid those in the National Bank of Pakistan and the consignment was allowed clearance for delivery through a valid clearance order passed under Section 83 and Rule 442 ibid by the notified authority and the appellant obtained the delivery of the goods from the Terminal. Subsequent to that the respondent No, 1 passed yet another assessment order dated 24.03.2013 through which he determined the value @ US$.
1.87/kg and transmitted view message for payment of additional amount of duty and taxes for obtaining delivery irrespective of the fact that the delivery has already been obtained, while endorsing remarks "reassessed a US$.
1.87/- as per the order of higher authority".
4. The appellant being aggrieved from the order filed an appeal before the respondent No, 2 vide No, 4738/2013 dated 30.04.2013, who rejected the instant appeal along with 06 others appeals of different importers through a common order dated 13.06.2014. Para 4 is relevant hence reproduced here-in-under:- "4. I have examined the fact of the case and have gone through the record beside considering the verbal and written arguments of the both parties. In the instant case appellant imported a consignment of "PVC Coated Textile Fabric in Rolls" under HS Code 5903.1000 from China vide machine No, KSCI-HC-95561- 17012013 was declared at the rate of unit value of US$.
1.20/kg, whereas the same were correctly assessable at the rate of unit value of US$.
1.87/kg . Therefore, the impugned goods were assessed @ US$.
1.87/kg. The main plea of the appellant counsel is that after releasing of the impugned goods, reassessm ent of the same is a clear violation of law. The department representative in his written reply submitted that considering the provision of Sections 32 and 80(3) of the Act, which empowers the Customs Authorities to recover the short levied amount within 05 years from the date of payment and in the case of clearance through PaCCS /WeBOC from the date of detection in terms of Section 32(5)(e) of the Act. He further stress that provision of Section 80(2) of the Act, very clearly and loudly says that the GDs assessment can also be checked after clearance of the goods.
The provision of Section 80(3) of the Act, further says "-without prejudiced to any other action which may be taken under the Act (the goods) re-assessed to duty). So if the importer is not willing to accept the reassessm ent the respondents have every right to recover the reassessed duties/taxes by invoking the provision of Section 32 of the Act as such the words "---any other action which may be taken under the Act". In view of the foregoing fact and circumstances I am inclined to rule that respondents plea carries weight and the appellant's contention regarding passed and closed transaction and double jeopardy is incorrect . However, it needs to be kept in mind that the operation of section 80(3) come into play while checking Goods Declaration meaning thereby that the goods have not yet ordered to be cleared. In case goods have been cleared detection of short payment of liability on account of inadvertence or due to false statement comes within the ambit of Section 32 of the Act. Therefore any demand after clearance of the goods should be determined after serving the notice under the relevant subsection of Section 32 and within the prescribed period no notice was served to the appellant before determining of duty and taxes in this case under section 32 of the Act, though the respondent in their comments have shown every intention to proceed under section 32 of the Act. The appeal is therefore premature and rejected accordingly. (emphasis supplied )
5. The appellant now challenged the above order by way of the appeal on the basis of the following grounds:-- A. That reassessm ent under subsection (3) of Section 80 of the Customs Act, 1969 is permitted after calling for the documents as expressed in subsection (2) ibid after release of the goods and the declaration or documents or any information or statement so furnished is found to be incorrect in respect of earlier assessm ent. In the absence of availability of any mis-declaration, misstatement false documents/statement, reassessment is not permitted. As evident from the reassessment order, which is silent in this regard confirming that no mis-declaration in regards to any aspect i,e, declaration, documents, information or statement has been made by the appellant, rendering the assessm ent so made by the respondent No, 1 and upheld by respondent No, 2, nullity to the provision of Section 80 of the Customs Act, 1969. Hence, null and void ab initio.
B. That the respondent No, 1 is not designated an "Officer of Inland Revenue" under the provision of Clause (c) of subsection (3) of Section 25 of the Sales Tax Act, 1990 and Section 120 of the Income Tax Ordinance, 2001 and as such is not empowered to pass any order in respect of matter relating to Sales Tax and Income Tax under the provision of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of Income Tax Ordinance 2001. Hence, by passing reassessment order for the purpose of short recovery of Sales Tax and Income Tax in the instant case deems to usurpation of the powers of "Officer of Inland Revenue" to which the respondent No, 1 is not vested with, rendering the reassessm ent order without power/ jurisdiction, hence void ab-initio and coram non judice as held in reported judgment 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 (1) Karachi AAA Steel Mills Ltd v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2006 PTD 2237 Pak Suzuki Motors Company Ltd, Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832.
C. That with the passing of "Assessme nt/Clearance Order" by the authority defined in Section 2(a) of the Customs Act, 1969 the transaction stood past and closed in every aspect, and the said order cannot be substituted with any other order as a subsequent order cannot be allowed to pile upon an existing order, as it is not permitted under law besides the said exercise amounts to "double jeopardy" and negates the Article 13 of the Constitution of Islamic Republic of Pakistan beside also being in derogation of the law laid down by the Superior Courts of Pakistan. The respondent No, 1 not empowered to disturb the said order, instead he passed yet another assessment order in the presence of earlier infield order under the provision of section 80 and Rule 438 of the Act/Rule, despite barred by law and communicated amount of taxes of Rs,189,756.00 and pressurized the appellant to pay that and for implementation of his order he got the ID of the appellant blocked.
D. That on conclusion of transaction, under the provision of sections 80 and 83 of the Customs Act, 1969 Rules, and 438 and 442 of Customs Rules, 2001, the order so passed under the said provision of the Act become appealable order before Collector of Customs, Appeal under the Provision of Section 193 of the Customs Act, 1969. The respondents never took the pain to go through the provision of the Act that whether respondent No, 1 is empowered to initiate such proceeding at this belated stage when all the formalities of the clearance stood completed and the GD has been out of charged? And to the legal proposition of law that whether he is empowered to reopen the assessm ent/ clearance order passed by competent officer under the provision of sections 80 and 83 in the capacity of adjudicating authority defined in Section 2(a) of the Customs Act, 1969 and Rules 438 and 442 of Customs Rules, 2001?. And as to whether another order passed subsequent to existing 1st infield order is permissible under the said provision of the Act and Rules?. This is not permissible under the Customs Act, 1969 and Constitution of Islamic Republic of Pakistan. The Hon'ble Sindh High Court in the case of Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 held that "once an order is passed, which attains finality, the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order. This was held by the learned High Court to be in derogation of the principles of administration of justice".
' That the Board or Collector of Customs has the power to examine at their own the record of any proceeding for the purpose of satisfying itself or the case may be, himself as to the legality or propriety of any decision or order passed by subordinate officer and may pass such order to as it or he may deem think fit as expressed in section 195 of the Customs Act, 1969, only those order against which no appeal lies before the Collector of Customs (Appeals) under the provision of Customs Act, 1969, before which the "legality" and "propriety" can be challenged in order to meet the norms of fairness, neutrality and justice. In the instant case no appeal has been filed by the respondent department, resultant, the order attains finality through limitation and cannot be disturbed as held in the case of Messrs World Trade Corporation v Central Board of Revenue reported at 1989 MLD 4310 held that "if the orders have attained finality through limitation. A fortiori, the Central Board of Revenue could not open up an order that had attain finality under the sea Customs Act, 1878 and against which no suo motu revision lay under the Act".
' That it is appropriate for the appellant to state for the sake of -arguments without conceding that the Collector can re-open an assessment/clearance order passed under Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by the authority defined in Section 2(a) of the Customs Act, 1969 under section 195 of the Customs Act and by none else as was done by the Collector of Customs, PaCCS. Wherein in the case of appellant reopening under Section 195 of the Customs Act, 1969 was ordered by the Higher Authorities, which find no place in the Section and Reassessment Order has been passed by the respondent No, 1, who is not vested with the powers under section 195 ibid. He usurped the power not vested with him, resultant the act of reopening of assessment/clearance order and piling upon with an other order under the provision of Section 80 and Rule 442 of the Act and Rule suffers from lack of powers and jurisdiction, hence void ab-initio as held by Tribunal and Superior Courts of Pakistan in umpteenth unreported/reported judgments. PLD 1975 SC 331, ST Appeal No, 984/98, ST Appeal 72/04, ST Appeal 54/09, ST Appeal No, 2352/99, ST Appeal No, 106/03, 2002 CLC 705, 2004 PTD 624, 2004 PTD 3020, 2009 PTD (Trib.) 1926, 2005 PTD (Trib.) 135, 2007 PTD 1895, 2010 PTD (Trib.) 759, 2010 PTD (Trib.) 1283, Customs Appeal No, K-44/2010 and Customs Appeals Nos, K-435/08 to 455/08, 2010 YLR 383, 2010 PTD (Trib.) 1759, 2010 PTD (Trib.) 2523, 2011 PTD (Trib.) 2480, PLD 1971 SC 197, PLD 1973 SC 236, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449 (1) Karachi, 2006 PTD 624, 2006 PTD 2237, 2010 PTD (Trib.) 832.
G. The respondent No, 1 in his assessment note opined that the passed reassessment order on the order of Higher Authorities and created recovery under Section 32(3) of the Customs Act, 1969, which is for "inadvertence", "error or "misconstruction" verbatim of which is reproduced herein below: "Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiring him to show-cause why he should not pay the amount specified in the notice".
H. That prior to passing an order for recovery of short paid amount of duty and charge under the provision of Section 32(3) it is prerequisite to issue a show-cause notice under the provision of section 180 of the Act by the authority defined in Section 179 ibid because 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 leveled against him." It is mandated to issue show-cause notice under section 180 of the Customs Act, 1969. Even otherwise in cases where request for summary adjudication is made, in the words of Customs, Excise and Sales Tax Appellate Tribunal, Peshawar recorded in his judgment reported as 2004 PTD (Trib.) 1324 it was stated that:-- "It is not understood as to under what law such right, which is primarily the 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 of by the owner of the goods or person, for imposition of penalty on him.
' Section 180 stipulates that three mandatory conditions are to be fulfilled step by step in chronological order and not simultaneously by the Adjudicating Officer before confiscation of goods or imposition of penalty.
' The provisions of section 180 of the Customs Act, 1969 does nowhere provide for the waiver of show cause notice on the part of any person who has limited choice under it.
' The provisions of Section 180 of the Customs Act, 1969 do not absolve the Adjudicating Officer of discharging his responsibility to comply with the given charter."
I. The assessm ent order reveals with clarity that no show cause notice has been issued to the appellant by the respondent No,
1. Issuance of show cause notice is a mandatory requirement for the adjudicating officers while adjudicating issues before them. This is also in violation of the principle of natural justice as held by Superior Courts in umpteenth reported judgments that:- i) It is the first principle of natural justice to issue a show cause notice to the person concerned. It is a mandatory requirement for crystallization of monetary liability against the taxpayer through stating of material particulars of the case along with applicable provisions of the relevant law.
' It is a well settled proposition of law that if a thing is required by law to be done in certain specific manner must be done in the same manner as prescribed by law or not at all as per maxim "Expressum Facit Cessare taciturn" as observed by the Apex Court in their judgments reported as PLD 1964 SC 536, 2003 SCMR 1505 and 2006 SCMR 129. iii) Violations of principle of natural justice can be equated with violations of provisions of statutory instruments. iv) 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 Honourable Supreme Court, Shariat Appellate Bench in the case of Pakistan v.
Public at large reported as PLD 1987 Supreme Court 304. v) 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. vi) 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 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 Nelson'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 ' In view of the provision of Customs Act, 1969 and above judgments of the Superior Courts the assessm ent order passed by the respondent is ab initio, null and void and the structure built upon this order has no legal value.
J. That irrespective of the above illegality, it is imperative for the appellant to add further that the assessm ent order passed through which demand was raised by the respondent No, 1 under the provision of Section 32(3) of the Customs Act, 1969 as evident from assessment note. The respondent No, 1 has no power under section 32(3) ibid, instead the authority enjoying the powers under this Section is Principal Appraiser as evident from notification SRO No,371(I)/2002 dated 15.06.2002. Meaning thereby that he is the only authority to proceed in the matter instead of respondent No, 1 because it is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. In S.R.O. 371(1)/2002 dated 15.06.2002 respondent No, 1 figure no where rendering the assessment order as ab-initio and void. If the opinion oftenly adopted by the authorities that Superior Authorities can exercise the powers of their subordinate under section 4 of the Customs Act, 1969 is considered valid for a while then the hierarchy of distribution of jurisdiction explicitly provided by section 179 of the Act and SRO 371(1)/2002 dated 15.06.2002 shall be rendered redundant. Also the consequent result would be a total anarchy where the superior officers would be making all efforts to exercise the adjudication powers clearly conferred by law upon their subordinates. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law, the special provision shall prevails (reference is invited to the case of Lt. -General (Retd) Shah Raft 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 and S.R.O. 371(I)/2002 dated 15.06.2002. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case law on the point that where there is a conflict between two provision of the statutes, the later provision prevails and has to be given precedents (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. Their lordship observed as under:- "it is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void, ab initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation of power warranted by law (The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 Q p.339) an act done which the person doing, it has no jurisdiction at all to do or which was clearly outside the scope of his activities (The State v. Zia-ur- Rehman PLD 1973 SC 49) and a judgment or order delivered by a court or a judicial or a quasi judicial authority not competent to deliver it (Muhammad Saleh and others v. Messrs United Grain and Fooder Agencies PLD 1964 HC 97) . The Constitution jurisdiction can thus be exercise when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No, 1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own cost".
K. 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 directions 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 S.T. Appeal No, 176/2007 Messrs Muller and Phipps Pakistan (Pvt.) Ltd. v. The Collector of Sales Tax Enforcement LTU, Karachi and 2011 PTD (Trib.) 2114 Collector of Customs, Peshawar v. Collector of Customs (Appeals)
Peshawar and 2011 PTD (Trib.) 2557 Messrs Wawa Garments Industries (Pvt.) Ltd. v. The Additional Collector of Customs, Export, Karachi.
L. That wherein any action is taken in the absence of availability of powers or show cause notice or order has been passed without jurisdiction/power, such order are of no legal effect as held by their Lordship of Supreme Court of Pakistan that "it is an element to principle that if a mandatory condition for the exercise of jurisdiction by Court, Tribunal or 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 in appeals or revisions 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 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, S.T.A. 444/03, S.T.A.
465/07, 2010 PTD (Trib.) 1636, 2010 PTD 465, 2010 PTD (Trib.) 2158, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.)
1680 and 2011 PTD (Trib.) 2086, M. That it is well settled principle of law that, if the law had prescribed method for doing of a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or attaining the objectives of performing or doing of a thing in a manner other than provided by law would not be permitted as declared in the landmark judgment of Director, Directorate General of Intelligence and Investigations and others v. M/s. Al-Faiz Industries (Pvt.) Ltd. And others reported as PTCL 2008 CL. 37, wherein their lordship of the Supreme Court had observed as under:-- "INTERPRETATION OF STATUTE"
"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"
N. That the respondent No, 1 failed to abide the provision of law contained in subsection (5) of Section 25 of the Customs Act, 1969 and Chapter IX of Customs Rules, 2001 i,e,, which in clear terms states that for the purpose of assessment under said section of the Act, lowest value of available value has to be applied as per clause (d) of subsection (5) of Section 25 of the Customs Act, 1969 of the data of import, maintained as per Rule 110 ibid for the assessment purpose, which was correctly applied by the officer passing earlier assessment order passed at the time of clearance of the goods and the said fact stood validated from the copy of the data annexed herewith. The said proposition of law stood validated from the reported judgment 2009 PTD (Trib.) 1926 and 2010 PTD (Trib.) 2432, 2010 PTD (Trib.) 2472, 2011 PTD (Trib.) 987 and 2011 PTD (Trib.) 2624.
O. That irrespective of the above legal deficiencies, it is appropriate to state for the sake of arguments, without conceding that if at the earlier stage the competent authority completed the assessm ent has not applied the lowest value correctly, that the said value cannot be applied subsequently after completion of assessment and allow of clearance under sections 80 and 83 of the Customs Act, 1969 read with Rules 438 and 442 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 as held by High Court of Sindh in its reported judgment 2008 PTD 1968 Messrs Sikander Enterprises v Central Excise and Sales Tax Tribunal Karachi. Their lordship of the High Court held "Even otherwise after clearance of the goods and removal of consignment from the Custom Area, Customs Authority were functus officio to reopen the case again it had become past and closed transaction---no specific provision has been quoted as to whether appellant had been guilty of offence under subsections (2) (3) of section 32 of the Customs Act, 1969; it would thus be difficult to observed as to whether appellant has been guilty of mis-declaration"
P. The respondent No, 2, instead of acting as Collector of Customs (Appeals), acted as Collector of Customs, posted at Executive side and while doing so he lost his independents, fairness and just approach and this fact stood validated from the fact that he sought the comments incorporated in para 3 of the Order-in-Appeal were obtained at the back of the appellant and subsequent to date of hearing of 27.05.2014 and the copy of the same was not supplied to the appellant as per mandated requirement of law for submission of rejoinder arguments, hence the same is not acceptable in the eyes of law and no judgment can be made on the strength of the subject comments and that also without consideration of the grounds taken by the appellant in his appeal.
Rendering the order illegal void and ab-initio.
Q. The respondent No, 2 is also at fault to hold that the respondent No, 1 has yet to proceed against the appellant for recovery proceeding under section 32(3) of the Customs Act, 1969, when the recovery has already been created through reassessment dated 27.04.2013 and view message dated 24.03.2013 for payment of Rs, 112.050.00 on the consignment of the appellant cleared for home consumption on 06.02.2013. View message dated 24.03.2013 is deems to be recovery notice and fall within the ambit of Section 32(3) and the respondent himself validated the said stance inline 23 to 30 of para 4 at pages 11 and 12 of Order-in-appeal. Resultant the appeal filed before him was valid and mature against assessment order passed under section 80 of the Customs Act, 1969, and it was mandated upon him to decide the appeal on merit instead of dismissing summarily as premature. His said act is based on mala fide and intellectual dishonesty and render the orders as of no legal effect being based on inapt interpretation of the provision of the Act.
' The order passed by the respondent No, 2 shows that it is not a proper order with application of mind and provision of the Act. Instead is a non speaking order and did not conforms to the mandated requirement of S.24-A of the General Clauses Act, 1897 and this stood validated from the fact that no rebuttal on the ground of appeal and supplied judgment has been given and also not containing substantial reasons and did not shows it was passed on objective consideration, such type of order are deemed to be always 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 order 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 arbitrarily 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 good 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.
S. That the appeal with the respondent No, 2 was filed on 30.04.2013 and an order under the proviso of subsection (3) of Section 193-A of the Customs Act, 1969 should had been passed by the respondent within 120 days from the date of filing of appeal i,e, by 28.08.2013 or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing. No extension was granted by respondent No, 2 prior to expiry of initial period of 120 days i,e, by 28.08.2013 and order was passed on 13.06.2014 i,e, after expiry of 289 days, rendering it barred by time. Hence, without power/jurisdiction, as such ab-initio void as held in reported judgments 2008 PTD 60 M/s. Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263 Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and [(2009) 100 TAX 32 (H.C.Lah)] Leo Enterprises v. President of Pakistan and others, 2010 PTD (Trib.) 1010 Innovative Impex v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PacCS, 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1146 Kaka Traders v.
Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others T. The appellant carves his right to add any fresh grounds at the time of hearing beside placing any valid incriminating evidence/ documents.
6. The hearing was fixed on 09.09.2014 and the appellant Consultant/Advocate in accordance with the last grounds of the memo of appeal took 02 additional ground, namely (i) The Directorate General, Post Clearance Audit has been delegated power by the FBR to conduct audit after clearance of the goods under the provision of sections 26A, 26B, 32 and 32(3A) of the Customs Act, 1969 read with Notification No, 500(1)/2009 dated 13.06.2009 and to issue audit observation and thereafter prepare contravention report for the purpose of adjudication by the competent authority empowered under the provision of Section 179 of the Customs Act, 1969. That none of the officials of MCC of PaCCS including the respondent No, 1 figures in the provision of Section 3DD of the Act and neither in the Notification No, 500(1)/2009 dated 13.06.2009, hence both acted in transgression of the powers vested with the DG PCA, hence without power jurisdiction, and as such of no legal effect, hence Void ab initio coram non Judice as held in umpteenth reported judgments of the superior judicial for a and (ii) That the respondent No, 2 amended the goods declaration despite prohibited under section 29 of the Customs Act, 1969 after assigning of a Customs Reference No, electronically. On the other hand Mr. Kousar Hussain submitted that no re- assessm ent in the case was made instead assessment was made by the respondent No, 1 upon filing review by the appellant in terms of Rule 441 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 against the assessm ent order passed by the Appraiser/Principal Appraiser under Section 80 and Rule 438 ibid prior to passing of clearance order under Section 83 of the Customs Act, 1969 and Rule 442 ibid.
7. Prior to dilating upon the merit of the case, it is of vital importance to subscribe here that no cross objections under subsection (4) of Section 194-A of the Customs Act, 1969 has been filed by the respondent Collectorate, resultant, the instant appeal can be allowed on the short point of not controverting the affidavit submitted by the appellant with the appeal through counter affidavit, confirming that the deposition made by and on behalf of the appellant in the affidavit are therefore, deemed to be true and correct and no controversy is left behind in regards to the fact of the case. None submission of counter affidavit whether by will or default forfeit the respondent right to deny assertion made in the affidavit. This proposition of law stood validated from the following judgments of the Superior Judicial Fora reported as (1974) 94 ITR 1, PLJ 1979 (sic) 71 and 72, 1986 CLC 745 KAR. (1984) 146 ITR 140, (1985) 53 Taxation 1 (Trib.), 1986 CLC 1119, 1986 CLC 1408 KAR, 1991 MLD 1243, PLD 1992 SC 317, 1993 SCMR 662, PLD 1996 Karachi 68, PLJ 197(sic) Quetta 66 and 2003 PTD 2118.
8. Rival parties heard and case records perused, on the strength of which following issues are framed for decision:-
(i) Whether respondent No, 1 is empowered to reassess the goods declaration under Section 80(3) of the Customs Act, 1969 in derogation of the expression of Section 3DD ibid, notification SRO No, 500(1)/2009 dated 13.06.2009, Section 193 of the Customs Act, 1969?
(ii) Whether reassessm ent by respondent No, 1 was made strictly as per the spirit of Sections 80 (2) and (3) of the Customs Act, 1969?
(iii) Whether recovery can be created through a view message without issuance of show cause notice inspite of clear expression enunciated in Section 32(3) of the Customs Act, 1969?
(iv) Whether respondent No, 1 was empowered in passing order for creating recovery under section 32(3) of the Customs Act, 1969 to be read with Notification No, 371(1)/2002 dated 15.06.2002?
(v) Whether the respondent No, 1 was empowered to create recovery of Sales Tax and Income Tax under Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001?
(vi) Whether assessm ent order passed on 23.01.2013 by the Principal Appraiser in the capacity of Adjudicating authority as defined in Section 2(a) of the Customs Act, 1969 was in derogation of clause (d) of Section 25(5) of the Customs Act, 1969?
(vii) Whether the order-in-appeal passed by respondent No, 2 is in time?
(viii) Whether order of the respondents Nos, 1 and 2 can be termed as speaking order by a figment of imagination under the provision of Section 24-A of the General Clauses Act, 1897?
9. That as regard to issue No, (i), the legislature has inserted Section 3DD in the Customs Act, 1969 through which Directorate of Post Clearance Audit has been created and its official had been delegated powers through Notification No, 500(1)/2009 dated 13.06.2009 for conducting audit of the importer under Section 26A of the Customs Act, 1969 which includes every aspects of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of the Customs Act, 1969. Audit of determination of assessed value although not falls in their domain instead in the Directorate General of Valuation in terms of Notification No, 495(1)/2007 dated 29.06.2007 and para 44 of CGO 12/ 2002 dated 15.06.2002 but they conduct audit of the said aspect and if found that the assessment order passed by the competent authority is nullity to the Valuation, Ruling issued by the Director, Directorate General of Valuation under Section 25A of the Customs Act, 1969, prepare audit observation and forward to the importer for clarification and if the reply fails to settle the issue, frames contravention report and forward it to the Clearance Collectorate which onward forward to the respective Collectorate of Customs Adjudication for issuance of show cause notice under section 180 of the Customs Act, 1969 and passing of order-in-original as per the expression of Section 179 ibid. The respondent No, 1 assumed the powers of officials of Directorate General of Post Clearance Audit and conducted the Audit Post Clearance of the Goods Declaration of the appellant under Section 26A while exercising the powers specifically delegated to the officials of the DG Post Clearance Audit. Neither he nor his higher officials are empowered to encroach the sovereign jurisdiction of DG, PCA under any circumstances as this will render the formation of DG, PCA by the legislature under Section 3DD of the Customs Act, 1969 and the powers delegated under Notification No, 500(1)/2009 dated 13.06.2009 as redundant. I have observed with concern that the respondent No, 1 and his higher officials are running a parallel department to the DG, PCA in derogation of Section 3DD ibid, this is not permitted under law beside in future an anarchy will prevail within the different organs of FBR to encroach others powers/jurisdiction. This type of intention/act cannot be validated under any circumstances and has to crush in the initial stages for maintaining the integrity and sanctity of the different sovereign organs of FBR. Therefore, the re-assessment made by the respondent No, 1 of the Goods Declaration of the appellant after clearance amounts to conduction of audit under section 26A of the Customs Act, 1969 to which he is not empowered, rendering his act without power/jurisdiction as such void ab initio and coram non judice.
' Upon passing of assessm ent order under section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 and thereafter passing of clearance order under section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Customs Act, 1969 and notification No, 371(I)/2001 dated 15.06.2001, it cannot be disturbed by any authority for the purpose of re-assessm ent, preparing contravention report and adjudication proceedings.
The only course left for the respondent No, 1 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Customs Act, 1969 which empowers an officer of customs below the rank of Additional Collector to file an appeal and in that he could incorporate all of his apprehensions, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, upon receipt of the appeal and after going through the facts and grounds, if thinks fit that the contention of the respondent No, 1 seems to be correct and the duty and taxes has not been either not levied or short paid on the basis of the goods assessed earlier for clearance, is empowered to issue show cause notice under section 32 ibid to the respondent (importer) as expressed in 2nd proviso to the subsection (3) of section 193A of the Customs Act, 1969. Instead of the prescribed method the respondent No, 1 reopened the assessm ent/clearance order under section 195 of the Customs Act, 1969 under which powers are either vested with the Board or the Collector of Customs. Even otherwise, when the right of appeal has been accorded by the legislature in the provision of section 193 of the Customs .Act, 1969, the provision of Section 195 is un-operational and cannot be exercised even by the authority defined therein and this has been validated by the Hon'ble High C Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that "department or an officer of customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal)---1st order in original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set-aside and Constitution Petition was allowed." In the instant case no appeal has been filed against the assessment order passed by the Principal Appraiser on 23.01.2013 within the stipulated period of 30 days resultant, it attain finality and cannot be disturbed being a past and closed transaction. Therefore, the act and commission of respondent No, 1 is also in derogation of sections 193 and 195 of the Customs Act, 1969 and as such of no legal effect, hence coram non judice. Therefore, I answer to issue No, (i) in negative.
10. That as regard issue No, (ii), it is beneficial to reproduce Section 80(2) and (3) of the Customs Act, 1969:
(2) An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of the Customs;
(3) if during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessm ent, the goods, shall, without prejudiced to any other action which may be taken under this Act be reassess to duty.
' Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), unless subsection (2) is not complied in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re-assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in Section (2) ibid. Upon receipt of documents or the information so transmitted/submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessm ent. Upon perusal of the Assessment Order passed by the Respondent No,1 it has been observed that no mis-declaration is visible in material particular and further stood validated from the fact that no remarks in this regard have been penned down by him in the reassessment note dated 24.03.2013, hence no misdeclaration in any aspect was made by the appellant nor any false documents were submitted, therefore in the instant case no re-assessment was warranted under Section 80 (3) of the Customs Act, 1969. Even otherwise the remarks of the Respondent No,1 also speaks volumes about playing havoc with the provision of subsection (3) of Section 80 of the Customs Act, 1969 and which reads as "Re-assessed at US$ 1.87/KG as per the Orders of the Higher Authority." I fail to digest that under which provision of the Act the higher authorities directed the Respondent No,1 to do so and how the Respondent No,1 complied with those, being illegal. He has to act independently without any influence and no authority can direct him to act contrary to the law.
It is also amazing to note that how the Respondent No,1 reassessed the goods under section 80 of the Customs Act, 1969 despite not being an Appropriate Officer under Section 80 to be read with Notification No, 371(1)/2002 dated 15.06.2002. The appropriate Officer is indeed empowered to re- assess the goods declaration in case the called documents are proved to be false and so the declaration transmitted under section 79(1) of the Customs Act 1969 and Rule 433 ibid after clearance of the goods but not in the absence of the basic ingredient defined in Section 80(2) &
(3) ibid. The respondent No, 1 also ignored the provision of Section 29 of the Customs Act, 1969. It is important to visit and understand the Constitutional and legislature construct of section 29 containing expression "restriction on amendment of goods declaration" which states: ' Section 29 : except as provided in section 88 no amendment of goods declaration relating to goods assessed for duty on declared value, quantity or description thereof shall be allowed after such goods have been removed from the port area or assigned Customs Reference Number electronically, as the case may be."
' The rational construction of the above expression is that no amendment under section 205 of the Customs Act, 1969 is allowed in the column of the declared value, quantity or description after removal of the goods from the customs area or the Customs Reference Number is allotted to the goods declaration electronically. A cap has been laid on the importer for obtaining amendment post filing of Goods Declaration and after clearance of the goods. Similarly, the word "assessed for duty" used in the expression lays restriction on the Customs not to amend itself the contents of Goods Declaration after clearance under Section 83 of Customs Act, 1969 and Rule 442 of the Customs Rules, 2001 on the strength of valid assessment order for levy and duty and taxes by the appropriate authority under Section 80 and Rule 438 ibid and Notification No,371(I)/2002 dated 15.06.2002. That while making reassessment of the appellant's Goods Declaration after clearance of the goods the respondent No,1 infact amended the Goods Declaration under Section 205 of the Customs Act, 1969 which is in derogation of Section 29 and as such not valid and fail the test of judicial scrutiny. In principle if it is considered for the sake of arguments that the customs is empowered to reassess a Goods Declaration after clearance of the goods under Section 80(3) without adhering the procedure laid down in section 80(2), there was no need for the legislature to frame subsection (2). The intention of legislature was not as interpreted by the respondent No, 1.
The fact of matter is no reassessm ent is permitted under section 80(3) of the Customs Act, 1969 once the goods are cleared. The reassessment is permitted prior to passing of Order of clearance under Section 83 and Rule 442 ibid upon filing of review by the importer under Rule 441 ibid against the assessm ent orders of Appraiser/Principal Appraiser before the Principal Appraiser and Assistant/Deputy Collector of the Group as the case may be. Vindicated by the respondent No, 2 in Order dated 13.06.2014 that "it needs to be kept in mind that operation of Section 80 (3) comes into play while checking the goods declaration meaning thereby that goods have not yet been ordered to be cleared". Therefore I hold that the reassessment made by Respondent No,1 is in derogation of sections 29, 80(2) & (3) of the Customs Act, 1969 besides without any power or jurisdiction under section 80 and Rule 438 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 and Notification No, S.R.O 371(1)/2002 dated 15.06.2002 and as such without any lawful authority, hence void and ab- initio. That issue No, (ii) is answered in the negative.
11. That as regard to issue No, (iii), upon transmitting view message dated 23.01.2013 to the appellant for payment of Rs, 149,357.00 on the strength of reassessment order made under Section 80 and Rule 438 of the Act/Rules for obtaining delivery of the consignment, appellant paid that on 06.02.2013, consequent to which clearance order under section 83 and Rule 442 was passed by the competent authority expressed therein and in Notification No, 371(1)/2002 dated 15.06.2002 and view message to the said effect was transmitted on 06.02.2013 reading as "GD: KCSI-HC-95561- 17012013 has to be gate out staff for check out.". Consequent to which the appellants clearing agent obtained the delivery on the same date. After lapse of more than one and a half month the respondent No, 1 after reassessing the Goods Declaration forwarded view message dated 24.03.2013 to the appellant reading as "BIL No, 2230261603 has been sent to cashier for payment.
You are requested to pay Rs, 176,215.00" when infact the act of clearance stood concluded on 06.02.2013. This view message after post clearance is by all means falls within the definition of demand notice for recovery of short paid amount of duty and taxes due to commission of inadvertence by the Officials of Clearance Collectorate. Such type of recovery can only be created upon passing of an order after issuance of show cause notice under section 32(3) of the Customs Act, 1969, expression of which is reproduced:-- "Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice".
In the instant case no show cause notice has been issued despite mandated under law, issuance of show cause notice is pre-requisite and cannot be dispense with under any circumstances. While creating recovery through view message the respondent No, 1, in fact committed violation of the provision of. Section 32(3) of the Customs Act, 1969 and principle of natural justice rendering the recovery so created without any lawful authority and as such void ab initio in the light of reported judgment referred by the appellant in grounds incorporated in para 5(h) supra and the reported judgment 2006 PTD 978 Forte Pakistan (Pvt.) Ltd., Karachi v. The Director General of Intelligence and Investigation (Customs and Excise), Karachi and another, wherein it has been held that "service of notice under section 32 of the Customs Act, 1969 is a condition precedent for initiation of proceedings, in the absence of notice under section 32 on the importer the entire proceeding initiated by the Adjudicating officer and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction, void and in operative. The entire proceeding are accordingly struck off" and the Hon'ble Supreme Court of Pakistan in judgment reported as 2001 SCMR 838 Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electric Lamp MFG Co., Ltd, Peshawar held that "demand notices in the absence of statutory show cause notices were without lawful foundation. It is well settled proposition of law that a thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all since pre-requisite show cause notices as required by law have not been served on the respondents, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore, in the absence of statutory notice, demand notices dated 25.07.95 and 26.07.95 were without lawful authority and thus of no legal effect." In accordance with the ratio decidendi by the judicial fora the respondent No, 2 rightly held in his order that "In case goods have been cleared detection of short payment of liability on account of inadvertence or due to false statement comes within the ambit of Section 32 of the Act. Therefore any demand after clearance of the goods should be determined after serving the notice under the relevant subsection of Section 32 and within the prescribed period, no notice was served to the appellant before payment of duty and taxes in this case under Section 32 of the Act" but failed to do justice with the appellant. I therefore hold that the recovery/demand notice communicated through view message dated 24.03.2013 is being issued in vacuum and as such without any lawful authority, hence, null and, void ab inito and any structure built upon this order has no legal value. Therefore, I answer to issue No, (iii) in negative.
12. That as regard to issue No, (iv), since the recovery so created by the respondent No, 1 falls within the ambit of Section 32(3) of the Customs Act, 1969, the authority enjoying the powers under this section is Principal Appraiser under Serial No, 3(ii) of Notification S.R.O. 371(1)/2002 dated 15.06.2002.
To the contrary, the respondent issued recovery/demand notice through view message dated 24.03.2013 by usurping the powers of his subordinate, which is not permitted under law. Nobody is allowed to usurp the powers of his subordinates as held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others and 2009 PTD 1083 that "Superior authority cannot exercise the power of his subordinates for adjudication purpose powers of sub-ordinate exercised by superior authority is held as to be without jurisdiction beside usurpation". Rendering the transmitting of view message for creating demand/recovery in the garb of reassessm ent under section 80(3) is without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517, PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, 2004 CLD 373, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court (sic) PLD 2005 Supreme Court 842, 2009 PTD (Trib.)
1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636, 2011 PTD (Trib.) 2114, 2011 PTD (Trib.) 2557, PLD 2014 Supreme Court 514. The answer to the issue No, (iv) is in negative.
13. That as regard to issue No, (v), the respondent No, 1 through view message dated 24..03.2013 also created recovery for the short paid Sales Tax and Income Tax due to inadvertence, while reassessing the Goods Declaration under Section 80(3) of the Customs Act, 1969, ignoring the fact that section 80(3) only speaks about "duty" not the taxes for which the appropriate authorities as expressed in Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance are "Officer of Inland Revenue". Customs officials figure no where. Resultant, he is not empowered to create recovery of Sales Tax and Income Tax Post Clearance. To the contrary, customs is infact empowered to collect Sales Tax and Income Tax leviable on the imported goods in the capacity of collecting agent in exercise of the powers vested under section 6 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. Through the view message he created recovery of Sales Tax and Income Tax despite having no power, rendering the view message dated 24.03.2013 for recovery of taxes without powers/jurisdiction, by virtue of exercise of powers not vested to him under Section 11 and of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, therefore same is not correct and valid, hence void ab-initio. The exercise of powers by the authority has to be within the expressed provision of the Act/Ordinance as per laid down principle by the Hon'ble Supreme Court of Pakistan in 2002 PTD 2457 that " the thing should be done as they are required to be done, or not at all", PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner", PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or nonobservance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and 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 observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd., and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and 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 super structure built on such foundation no matter how strong it is has to fall. Refer to PLD 1996 Karachi 68, which laid down that " where the initial order or notice was void all subsequent proceedings, orders or super structure built on it were also void. In reported judgment 2006 PTD 978 it is held that "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 Apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---all successive orders based upon it illegal and liable to be quashed. The issue No, (v) is answered in negative.
14. That as regard issue No, (vi), the initial assessment order under Section 80 of Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of the Customs Act, 1969 was passed by the Appraiser with the application of highest value available in the data maintained by the Collectorate under Rules 110 of the period defined in Rule 107(a) of Chapter IX of Customs Rule, 2001, being aggrieved from the said assessment order the appellant Clearing Agent filed 1st review before the Principal Appraiser under Rule 441 ibid and the Principal Appraiser after consulting the data reassessed the Goods Declaration while applying lowest available value of the identical goods of the period of import as enunciated in clause (d) of subsection (5) of Section 25 of the Customs Act, 1969 @ US$.
1.50/kg, stood proved from the data of the said period annexed by the appellant and veracity of which has not been disputed by the respondent representative confirming that the Principal Appraiser adhered the provision of Section 25(5) in accordance with its essence and spirit and which read as follows:--
(5) Transaction value of identical goods.---If the customs value of the imported goods cannot be determined under the provision of subsection (1) it shall subject to rule being the transaction value of identical goods sold for export to Pakistan and exported at or above the same time as the goods being valued.
(a)
(b) #TBS (c) #TBE
(d) If, in applying the provision of this subsection there are two or more transaction values of the identical goods that meet all the requirement of this subsection and clauses (b), (d) (e) & (f) of subsection (13) the customs value of the imported goods shall be the lowest such transaction value, adjusted as necessary in accordance with clauses (b) and (c).
' The respondent No, 1 ignored the lowest value of the identical goods available in the data while passing reassessm ent order dated 24.03.2013, while nullifying the dictate of law, defeated the norms of independence and fair play, resultant, the applied value by the respondent No, 2 is nullity to law and the assessm ent order made by the Principal Appraiser succeed being lawful and valid and as such hold field with full force and this opinion of mine stood validated from the reported judgments 2009 PTD (Trib.) 1926, 2010 PTD (Trib.) 2432, 2011 PTD (Trib.) 2472, 2011 PTD (Trib.) 22, 2011 PTD (Trib.) 987, 2011 (Trib.) 2624. With this I answer issue No, (vi) in negative.
15. That as regard to issue No, (vii), the appeal before the respondent No, 2 was filed on 30.04.2013 and an order under the proviso of subsection (3) of Section 193A of the Customs Act, 1969 should had been passed within 120 days from the date of filing of appeal i,e, on or before 28.08.2013 or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing. In the instant case the order has been passed on 13.06.2014 without any extension, rendering the order so passed barred by 289 days, hence without powers/jurisdiction and cannot be enforced under law as held in reported judgments 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263, 2009 PTD 1112, 2019 PTD (Trib.) 1010, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1146, 2012 PTD (Trib.) 1650. The issue No, (vii) is answer in negative.
16. That as regard to issue No, (viii), the order passed by respondent No, 1 shows that it is not proper order with the application of judicial mind and provision of the Act. Instead is a vague and non speaking order and did not conforms to the mandated requirement of section 24-A of the General Clauses Act 1897 and this fact is established from his remarks dated 24.03.2014. Likewise the order passed by the respondent No, 2 cannot be considered. As valid and judicial order, as he failed to rebut the grounds of the memo of appeal and denied the justice to the appellant despite holding in categorical terms it para 4 of the order that. "However, it needs to be kept in mind that the operation of section 80(3) come into play while checking Goods Declaration meaning thereby that the goods have not yet ordered to be cleared. In case goods have been cleared detection of short payment of liability on account of inadvertence or due to false statement comes within the ambit of section 32 of the Act. Therefore any demand after clearance of the goods should be determined after serving the notice under the relevant subsection of Section 32 and within the prescribed period no notice was served to the appellant before determining of duty and taxes in this case under section 32 of the Act", though the respondent in their comments have shown every intention to proceed under section 32 of the Act". The order passed by him rejecting the appeal as pre-mature despite reaching at firm opinion in regards to the mandated requirement of law, confirms with clarity that it has not been passed on objective consideration, hence unlawful and has to be treated illegal, void, arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrary 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 in 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. The issue No, (vii) is answer in negative.
17. In view of the above narration, the whole proceeding are infested with inherent legal infirmities and substantive illegalities tantamount to patent violation of mandatory statutory provision and that too, in utter disregard of the provision of the Acts/Ordinance and Principle of law settled by the Superior Judicial Fora. The chronicle even right from passing of reassessment order dated 24.03.2013 and order-in-appeal by the respondents, are without power/jurisdiction hence ab initio void and as such coram non judice by virtue of the fact that they ignored the provision of Acts/notification and the ratio settled by the Supreme Court of Pakistan in reported judgment 2010 SCMR 1425 Section officer Government of Punjab Finance Department and other v. Ghulam Shabbir that the Principle of Administration of Justice and Interpretation of Statute is that "the person who is performing the role of a judge, no matter even in quasi-judicial proceeding must wear all laws of the country on the sleeves of his robes and failure to do so by any reason is not an excuse" and reported judgments 2003 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505 and 2006 SCMR (sic) that "if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted" .
18. I am also flabbergasted to observe from the record of the case that the respondents also ignored the vital fact that assuming of jurisdiction is of great importance and power has to be exercised within the allotted sphere, acting contrary to that is incurable rather fatal for the health of the case and this has been countless time held by the Hon'ble Supreme Court of Pakistan that in case of assuming wrong jurisdiction, that the super structure built thereon ought to crumble down as held in reported judgments PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.
Beside it is advantageous to us to refer to 2001 SCMR 1822 Ali Muhammad v Chief Settlement Commissioner, wherein the Hon'ble Chief Justice of Pakistan Mr. Iftikhar Muhammad Choudhry presiding a bench in the capacity of Judge of Supreme Court held that:-- "whenever order are passed by an officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercise in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice."
19. Their lordship also held in reported judgment PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP and others that"determination of jurisdiction by Court seized with the matters is one of the important element in administration of justice as if justice has been provided basing upon coram non judice order then same would have no legal sanction behind."
And in PLD 2005 Supreme Court 842 Khyber Tractor (Pvt.) Ltd. v. Pakistan Through Ministry of Finance, Revenue and Economic Affairs that "question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum having no jurisdiction, even if it is found to be correct on merit is not sustainable. Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi judicial functionary to exercise its power/authority and no sooner the question of jurisdiction is determined in negative the whole edifice built on such defective proceeding, is bound to crumble down."
20. To what have been stated/discussed and observed herein above, particularly the interpretation of law and legal preposition discussed in the light of prescribed law and observations made thereon and to follow the ratio decidendi, I hold that the re-assessment orders and view messages dated 24.03.2013 passed by the respondent No, 1 in GD Nos, KCSI-HC-95561-17012013, K6I-HC-11933- 27042013, KCSI-HC105881-07022013, KCSI-HC-1111270-16022013, KCSI-HC-108618- 12022013, KCSI-HC- 112233-19022013 and KCSI-HC-97274-21012013 and as well as the Orders-in-Appeals Nos, 8740 to 8746/2014 dated 13.06.2014 passed by the respondent No, 2 suffers from grave legal infirmities, therefore are declared to be illegal, null and void and hereby set-aside and appeals are allowed as prayed.
21. Orders passed accordingly with no cost.