JEHANZAIB WAHLAH, MEMBER (JUD ICIAL-III).-- Through this order , I intend to dispose off Appeal No, K- 919/2017 directed against the Order-in-Appeal No, 317/2017 dated 03.07.2017 passed by Collector of Customs, Appeals, Karachi (Respondent No, 2) maintaining the Assessment Order dated 01.09.2016 passed by Deputy Collector of Customs, Group-II, MCC of PMBQ , Custom House, Karachi (Respondent No, 1).
2. Briefly facts of the case are, the appellant imported a consignment of 26,680 kgs of Cheese in bulk packing of 2.3 kgs from Denmark. Upon receipt of shipping documents he transmitted online Goods Declaration (GD) under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III - of Chapter XXI of Customs Rules, 2001 (Rules), with the MCC of PMBQ, while claiming exemption from payment of sales tax under Serial No, 79 of the Sixth Schedule to the Sales Tax Act, 1990, as per pre-requisite for availing the regime of Customs Computerized System (CCS) appellant deposited upfront duty and taxes of Rs. 2,147,216.00 on 27.05.2016 vide cash No, C-KPPI-006785. Consequent to which GD was numbered as KAPI-HC-69486 dated 11.01.2017. Upon appearance of GD on the desktop, the Appraiser concerned opted for getting the examination of the goods is terms of the expressions of Section 198 and Rule 435 of the Act/Rules. Prior to passing of assessment order under the provision of section 80 and Rule 438 of the Act/Rules. The goods were found as per declaration and report so prepared was uploaded in the reservoir of GD, upon receipt of which the nominated assessing officer passed assessment order with the application of Valuation Ruling on 31.05.2016, with the remarks "VR" and routed the same to Principal Appraiser , who on the same date validated it after deleting the exemption of sales tax, while observing in assessment note "exemption of sales tax deleted since the goods are packed under brand name".
Being aggrieved appellant filed 1st review under Rule 441 before the Principal Appraiser , who rejected that on 01.06.2016 while adducing remarks in the note reading as "since the goods are under brand name hence assessment already made is upheld". Since, his decision was not in accordance with the essence and spirit of Serial No, 79 of the Sixth Schedule filed 2nd review before respondent No,1, who allowed release of the goods provisionally in terms of Section 81 of the Act on 02.06.2016 with the remarks reading as "The claim of importer regarding concession of 6th Schedule under Serial No, 79 of the Sales Tax Act, 1990 is not valid as it has been clearly written at Serial No, 79 that exemp tion is available to "Cheese, excluding that sold in retail packing under a brand name". In the light of the examinatio n as well as uploaded pictures it can be seen that the imported cheese is in retail packing and it has brand name terms "Retail Packing". Refer to packing wrapped around item bearing the details of items that can be kept in retail shops for direct selling purpose. Since the imported goods carries a Brand name and are in retail packing, therefore the exemption claim is not warranted. However , provisional assessment is made on request of authorized representative of the company . The importer is directed to get the matter decided within 02 months." The appellant accordingly furnished security in the shape of pay order amounting to Rs.
1,425,831.00 and paid the imposed pena lty of Rs. 5000/- for non pasting of invoice in the consignment as per the contemplation of Rule 389 of the Rules. Consequent to which the inbuilt authority of CCS passed clearance order under Section 83 and Rule 442. Appellant obtained delivery of the consignment from the terminal after paying their charges on the strength of delivery order issued by the shipping company . The respondent No, 1 in derogation of his note dated 02.06.2018 finalized the assessment and passed assessment order on 01.09.2016 and ordered encashment of the security on the basis of reasoning adduced for that in the note "Assessed in terms of C.No,3(9)
ST-L&P/2016 -104477 dated 08.08.2016 . The amount due may be encashed forthwith by BG Section.". The appellant challenged the vires of ,the said order before respondent No, 2, who rejected that through a time barred order dated 03.07.2017, para 3 is relevant and as such reproduced here-in-under: " I have examined the case record as well as verbal and written arguments of the appellant and the respondents.
The examination of the matter reveals that the goods are "Cheese" packed in 2.3 kgs packing with brand name endorsed on the packing. As such goods are clearly meant for retail purpose and do not qualify for exemption of sales tax under the Sixth Schedule of the Sales Tax Act, 1990. The matter has also been clarified by FBR letter vide C. No, 3(9)/ST -L&P/2016-104477 dated 08.08.2016 which states "Cheese", excluding that sold in retail packing under a brand name" is not cove red under the Sixth Schedule . There is therefore no reason to interfere with the impugned order . Accordingly the same is upheld and the appeal being devoid of merit is dismissed."
3. The appellant filed the instant appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the case strictly in accordance with those. No cross, objection under Subsection (4) of Section 194A of the Act has been filed within the stipulated period of 30 days by the respondent No, 1, instead comments, which are not in any manner qualify memo of cross objection, deemed to be termed as cross appeal filed under Subsection (3) by the department as expressed in aforesaid section. Therefore, these are to be considered merely as opinion, having no binding force, however , are placed on record of the case for perusal and consideration.
4. Rival parties heard and case record perused in addition with the relied upon citations. Prior to dilating upon married and other legal aspect of the case, it is of vital importance to determine that as to whether respondent No, 2 has passed the order as per the contemplation of Subsection (3) of Section 193A of the Act, which contains the expression that respondent No, 2 has to pass the order within 120 days from the date of receipt of appeal, extendable for further 60 days upon availability of "exceptional circumstances" and recording of those after serving notice and hearing the tax payer as held by Hon'ble Supreme Court of Pakistan in reported judgment 1999 SCMR 1881 Khalid Mahmood v. Collector of Customs, Custom House, Lahore . In the instant case appeal was filed by the appellant before respondent No, 2 on 06.05.2017, an order against the said appeal under the proviso of subsection
(3) of Section 193-A of the Act, should had to be passed by respondent No, 2 within 120 days from the date of filing of appeal or within a further extended period of 60 days, prior to lapse of currenc y period of 120 days subject to availability of exceptional circumstances with reason to be recorded for extensio n in writing. No extension was granted by respondent No, 2 as evident from the order which is completely silent in this regard, order was passed by him in the instant appeal on 03.07.201 7 i,e, after expiry of 58 days of the initial period. Rendering the order-in- appeal barred by time by 58 days. Hence, without power/jurisdiction, hence, ab-initio void and not enforceable under law, ultimate result of which is the assessment order dated 01.09.2016 passed by respondent No, 1 also became ab-initio void, in the light of theory of merger for reaching on the said decision. I am indebted with the judgments reported at 2008 PTD 60 M/s. Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578 M/s. Hanif Strawboard Factory v. Additi onal Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala , 2009 PTD 762 M/s. Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263 M/s. Syed Bhai Lighting Limited, Lahore v Collector of Sales Tax and Federal Excise, Lahore and 2 others and 2009 PTD 1978 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 Custom s, Lahore and others.
5. Reverting back to the main issue that as to whether the goods of appellant were exempted from the payment of sales tax under serial No, 79 of the Sixth Schedule to the sales Tax Act, 1990 at the time of import. Neither respondent No, 1 nor 2 were within their right either to complete the assessme nt or reject the appeal on the strength of the Board's letter as i,e, not binding on them in terms of the provision of Section 223 of the Act.
Notwithstanding, it is to be noted that the Board has no mandate to interpret the provision of the Act or statute, it can only give an opinion; it is for the judicial fora to interpret the provision of statute as held by the Hon'ble Supreme Court of Pakistan in 1993 SCMR 1232 in the case of Central Insurance Co. v. Central Board of Revenue that "Board's view as to the interpretation of law do not have the force of law and the exception would be, where a fiscal statute is involved, that should be implemented with strict impartiality" and by the Hon'ble High Court of Sindh in 2005 PTD 2462 M/s. Lever Brother Pakistan Ltd. v. Customs Sales Tax and Central Excise Appellate Tribunal, Karachi that "CBR has no place in the Scheme of Law, conferred *with the jurisdicti on to interpret any law, statutory or in exercise of any deliberate authority i,e, subordinate legislation" and this Tribunal in 2016 PTD (Trib.)107 Qazi CNG Station, Gujrat and another v. Directorate General of Intelligence and Investigation-FBR, Karachi and 02 others, that "statute can be amended by the Parliament and a notification through a notification not through any communication. In the absence of amen dment of notification, clarification issued by the department could only be termed as opinion and it would not at all amend the notification". Hence, passing of orders on the strength of letter of the Board by the respondents is palpably illegal this vital fact alone is enough for declaring the orders passed by respondents as void and ab-initio and as such of no legal ef fect.
6. That as regard to the issue in hand that as to whether Sales Tax is payable by the appellant on the imported goods or can be collected by the respond ent No, 1 on the premise that the cheese so imported by the appellant is not in bulk packing. It is for the shipper/exporter to determine about the status of the imported goods i,e, either retail or bulk and then for the Director , Directorate General of Valuation, who issues valuation ruling under the provision of Section 25A of the Act after taking on board the representative of Fede ration of Chamber of Industries of Pakistan/Karachi Chamber of Commerce and Industry and importers. In the valuation ruling issued by him from time to time in addition to the annexed as Exhibit "M" at page 25-29 of Memo of Appeal, he termed the cheese in 1
(one) or above kg as of bulk packing, evident from inscription therein reading as "the cheese in packing of 1 kg or above is deems to be construed as imported in bulk packing", validated from the definition available in Merriam Webster Dictionary , which is The terms 'retail; as per Merriam Webster Dictionary means to sell something to customers for their own use.". The word "retail" itself comes from old French and Germans "piece cut off, shred, scrap, paring". The notion of the English word is "selling by the piece". The term "retail" has also been defined by US Customs Court as "sales in small quantities to ultimate consumers" (Ed Alexender v. United States, 78 Cust. Ct.
137, C.D 4699 (1977). Accordingly edible items in retail packing can be defined as packaged in small quantities which can be readily consumed by buyers in single serving. Meaning thereby that cheese sold in local market weighing to 1 kg or above is not to be termed as retail through any stretch of imagination/definition, instead deems to be always termed as in bulk packing. Since, the goods imported by the appellan t weighs to 2.3 kgs, it is in bulk packing and stand exempted from the payment of sales tax under Serial No, 79 of Sixth Schedule to the Sales Tax Act, 1990 without any exception.
7. For reaching at a just conclusion, one has to visualize the essence and spirit of the serial No, 79 of the Sixth Schedule to the Sales Tax Act, 1990. verbatim of which is: "Cheese, excluding that sold in retail packing under a brand name"
8. The expression with clarity enunciate that the cheese when sold in retail packing under a brand name is subject to payment of Sales Tax. Emphasis laid is on the word sold not import i,e, supply , which is the second form of the word sale. The word 'import' has been defined in Black's Law Dictionary Seventh Edition as "a product brought into a country form a foreign country where it originated, the process bringing foreign goods into a country" and by the Hon'ble Supreme Court of Pakistan in East and West Steamship Company v. the Collector of Customs (PLD 1976 SC 618) the word "import" carried the meaning of "bringing in" or "to bear or carry into" and an imported article was one which was brought or carried out into a country from abroad and it did not necessarily entail the entire process of filing bill of entry , discharging the good s from the vessel at a wharf," whereas the definition of the word 'sold', which is the second form of the word sale is "to sell after producing/manufacturing/importing (The New Lexicon Webseter's Dictionary of the English Language Encyclopedic Edition" an act or instance of selling the exchange of anything for money (The Chamber Dictionary) whereas the word 'Supply' as defin ed in Section 2(33) of the Sales Tax Act, 1990 is "A sale or other transfer of the right to dispose off goods as owne r, including such sale or transfer under a hire purchase agreement etc." The definitions of the words 'import' and 'sold' are quite apart from each other and have no nexus whatsoever amongst themselves. Meaning thereby that the meaning of the word 'sold' cannot be construed as import'. The Serial No, 79 of the Sixth Schedule to the Sales Tax Act, 1990 speaks payment of sales tax on imported cheese when sold in retail packing with a brand name. No sales tax is to be paid/collected on cheese if sold in bulk packing and under a brand name by either importer (appellant or Clearance Collectorate (respondents) as per the contemplation of clause (b) of Subsection (3) of Section 3 and Section 6 of the Sales Tax Act, 1990 on the imported goods. Instead to be paid by the importer (appellant) upon sale/ (supply) of the imported goods as enunciated in clause (a) of Subsection (3) of Section 3 ibid The said payment has to be made by an importer along with monthly sales tax return, prior to the 15th day of the subsequent tax month under the provision of Section 26 of the Sales Tax Act, 1990. In case of non-payment, the competent authority to collect/recover non paid sales tax on supply , rest with the Officers of Inland Revenue of Regional Tax Office of Inland Revenue Services after due proces s of law i,e, after issuance of show cause notice/passing order-in-original under the provision of Section 11 of the Sales Tax Act, 1990. Collection of sales tax on the imported goods by the Clearance Collectorate (respondents) despite of the fact that the same has to be paid on sale is nullity to law being in derogation of unambiguous expression of Serial No, 79 of Sixth Schedule to the Sales Tax Act, 1990. Therefore, collection of Sales Tax at import stage is without lawful authority being nullity to the essence and spirit of the said serial which exempts the payment of sales tax on cheese of all type at import stage without any exception . To the contrary , the respondents are construing the word sold as import in derogation of rule of interpretation which enunciates that interpretation of the statute cannot be made on the basis of personal whims and wishes, rather strictly in accordance with its essence and spirit as it is settled principle of law that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency . There is no room for intendment there is no equity about a tax. There is no presumption as to tax nothing is to be read in, nothing is to be implied. One only look fairly at the language used nothing else to be done" as held by High Court and Supreme Court of Pakistan in their reported judgment starting from Abbasi Steel Industries Ltd v. Collector of Customs 1989 CLC 1463 to Messrs Fatal Ellahi v. Additional Collecto r of Customs , 2011 PTD (Trib.)
79. Even otherwise "if there are two or more interpretation of our provision pertaining to levy of tax on account of anomaly/ambiguity the one favourable to tax payer has to be adopted by the court" as per judgment reported as 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227 . It is considered opinion of the Superior Judicial Fora in a number of judgments "that tax payer should not be made to suffer on account of bad drafting of the statute". Reliance is placed on the judgment of High Court of Sindh reported as 2004 PTD 901 , wherein the Hon'ble judges held that: "While interpreting the taxing statute the Court must look to the word of statute and interpret it in the light of what is clearly expressed. It cannot imply anythin g which is not expressed. It cannot import provision in the statute as to support assumed deficiency .
While finding out intention of the legislature language of the law is not be seen and if the intention is cleared from the language used nothing else is to be done. If the legislature has not sufficient ly expressed itself Court has no duty to act for it, for court is concerned with what it lays down and not what it has only in mind, but once it has been articulated enough Court does not more than give effect to the intention that it has succeeded in expressing. The intention may be expressed in faulty language, in very faulty language, in-extreme ly faulty language; this is of no consequence as long as there is no doub t as to the intention. A draft's man mistake as long as it relates to form in which the legislative intend is expressed and not to the substance of it, is of no effect of course ones an element of doubt as to the intention of the legislature enter the field consideration otherwise irrelevant may all become relevant."
9. The order passed by the respondent No, 2 is a sketchy and bald order as evident from sub-para (3) of the order , which least contains any rebuttal on the grounds of memo of appeal. Therefore, it is not a proper order through any stretch of imagination, infact an order which least reflects independence and application of judicial mind.
Confirming unambiguously that it is a non speaking order and did not conform to the mandated requirement of Section 24-A of the General Clauses Act 1897 further validated from the fact, it does not contains substantial reasons showing that it was passed on objective consideration. Such type of orders shall always be treated as illegal, void arbitrary and a result of misus e 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 order is being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law . The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019 , 2007 PTD 2500 , 2004 PTD 1973 , 2005 YLR 1719 , 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882 , 2005 PTD 2519 , 2005 PTD 1189, 2003 PTD 2369 , PLD 1995 SC (Pak) 272, PLD 1970 SC 158 , PLD 1970 SC 173 and 1984 SCMR 1014 and 2012 PTD (T rib.) 619 .
13. What has been discussed hereinabove, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio-decidendi observed by the Superior Courts, I set aside the orders passed thereon, during the hierarchy of the customs being illegal, void and ab-initio, appeal is accordingly allowed with no order as to cost.
14. Judgment passed and announced accordingly .