JEHANZAIB WAHLAH MEMBER JUDICIAL-III.----Through this order. I intend to dispose off Appeal No. K- 76/2018 directed against Order-in-Appeal No. 853 dated 29.12.2017 passed by Collector of Customs (Appeals)
Karachi (respondent No. 3), maintain the Order-in -Original No. 320/2016-2017 dated 11.12.2016 passed by Deputy Collector of Customs, Adjudication-I, Karachi (respondent No. 2).
2. Brief, facts of the case are that the appellant imported a consignment of 3050 sum of textile floor mats, upon receipt of documents, he delivered those to his clearing agent Messrs Khurram Brothers, Karachi for filing Goods Declaration (GD) with the MCC of Appraisement-West under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 (Rules) and as per pre- requisite deposited upfront duty and taxes. Consequent to which GD was numbered as KAPW-HC, 54820- 04112013, which was selected for examination in terms of Section 198 and Rule 435 of the Act/Rules, through physical verification by the Official of MCC of Appraisement-West posted at KICT, goods were found as declared in all aspect, the examination report so prepared were posted in the reservoir of the GD. Upon appearance of those the competent authorities in the capacity of adjudicating authority as defined in Section 2(a) in exercise of the power vested upon them through SRO 371(1)/2002 dated 15.06.2002 passed assessment order under the provision of Section 80 and Rule 438 of the Act/Rules and transmitted view message for payment of additional duty and taxes worked out on the basis of assessment order. The appellant paid those, consequent to which the inbuilt authority passed clearance order as per the expression of Section 83 and Rule 442 of the Act/Rules. The appellant clearing agent thereafter obtained the deliveries of the consignment from the terminal and transported those to the appellant. That after lapse of about 2 years from the date of clearance the respondent No. 1 passed reassessment order through which recovery was created. Being aggrieved from the reassessment order the, appellant preferred appeal before respondent No. 3, who declared vide order dated 10.12.2015 that the reassessment order passed by respondent No. 1 is without lawful authority the appeal by observing " there are number of orders of this forum, based on decision of the Customs Appellate Tribunal and superior judiciary. The assessment already finalized could not be disturbed without having recourse to show-cause notice under the relevant provision of the Custom Act, 1969. The instant appeal is allowed in line with the previous order."
Thereafter, the respondent No. 1 framed contravention report against the subject GD with the allegation that the appellant obtained the delivery of the imported goods under PCT heading under PCT heading 5703.3030 chargeable to custom duty @ 15% sales tax @ 17%, additional sales tax @ 3% and income tax @ 5.5% as against actual PCT heading 8708.2901 under which it is classified rightly and chargeable to custom duty @ 35% , sales tax 17% additional sales tax 3% and Income tax @ 5.5%. Hence, mis-delcared PCT heading for causing loss to the exchequer to the tune of Rs. 344,399.00. This act of his falls within the contravention of sections 32(1), (2), 79(1) of the Act, Section 33 of the Sales Tax Act, 1990 and 148 of the Income Tax Ordinance, 2001 punishable under clauses (14), (14A) of Section 156(1) of the Customs Act, 1969 and transmitted the same to respondent No. 2 on the strength of which he issued show-cause notice dated 11.08.2016 incorporating all the facts and the provision of the Act, Sales Tax Act and Income Tax Ordinance, 2001 narrated in the contravention report prepared by respondent No. 1 without even change of comma or full stop. The appellant consultant through reply dated 19.08.2016 challenged the authority of respondents Nos. 1 and 2 of preparation contravention report and issuance of how cause notice in the esence of order of the respondent No. 3 and in the absence of enabling provision of the Act empowering the respondents Nos. 1 and 2 to frame contravention report and to issue show cause notice on a matter, which has already decided in his favour by respondent No. 3 and which had attained finality by virtue of non availing remedy under the provision of Section 194A(1) of the Act filing of appeal, in addition to other argument through which he challenged the jurisdiction of respondent No. 1 of conducting audit under the provision of Sections 26(2) and 26A of the Act and of respondent No. 2 under the provision of Sales Tax Act, 1990 and -Income Tax Ordinance, 2001. The respondent No. 2 brushed aside the averment/argument of the appellant and passed order dated 18.11.2016 through which she held the charges as established against the appellant and ordered payment of Rs.344,366.00, along with imposed penalty of 50,000.00. Vires of the said order was challenged before respondent No.3, who without going through earlier order and the proposition of law rejected the same. in very wanton, cursory unilateral/arbitrary order dated 20.12.2017, relevant portion is reproduced here-in-under: "The main point in above decision was the assessment already finalized could not be disturbed without having recourse to show-cause notice under "the relevant provision of Customs Act, 1969". This clearly shows that the order brushed aside the procedure to recover the short paid amount being not in line with the provisions of the Customs Act, 1969. This order has in no way held that the amount was not due or not recoverable. The order infact suggested the procedure to be adopted in case of re-assessment. Now the respondent department has adopted one of the legal course and it is show-cause notice. Thus it is not double jeopardy , the appellant has not contested the merits of the case with regards to assessment of the goods , thus the impugned order is upheld. The appeal fails".
3. The appellants filed the appeals 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 have been filed within the stipulated period of 30 days by the respondent No. 1 against the appeals preferred by the appellants instead comments, which are not in any manner qualify memo. of cross objection, to be termed as cross appeals filed under subsection (3) by the respondent No. 1 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. Heard and perused case record. This appeal could be allowed on the short point that as to whether the respondents Nos. 1, 2 and 3 were empowered to frame contravention report and issue/pass show-cause notice and the impugned order-in-original/appeal in the presence of Order-in-Appeal dated 10.12.2015 passed by respondent No. 3 himself through which he declared the passing of re-assessment order and view message for creating recovery as without lawful authority/jurisdiction and arbitrary. For challenging the vires of the order of the respondent No. 3, mechanism defined in Section 194A (1) is available in the Act, which read as follows: 194A - Appeal to the Appellate Tribunal:- (1) Any person or an Officer of Customs agreed by any of the following order may appeal to the Appellate Tribunal against such order:- A decision or order passed by an of ficer of Customs not below the rank of Additional Collector under Section 179.
(ab) An order passed by Collector (Appeals) under section 193; (c)
(d)
(e)
(3) Every appeal under this section shall be filed within 60 days from the date of which the decision or order sought to be appeal against is communicated to the Board or the Collector of Customs or as the case may be, the other party preferring the appeal.
5. The proper course of action available with the respondent No. 1 was to file appeals against the order of respondent No. 3 before the Customs Appellate Tribunal in terms of clause (ab) of Section 194A (1) of the Act within 60 days as expressed in subsection (3) ibid i.e. on or before 09.02.2016, ironically appeal was not filed and the order of the respondent No. 3 attained finality. However, after lapse of the stipulated period, respondent No. 1 woke up from his slumber and in order to cover up his negligence/carelessness and above all lapse of the period of 60 days flogged the dead horse in order to give new lease of life by preparing contravention report based on the same fact and grounds on which reassessment order was passed under the provision of Section 80(3) of the Act and view message and even date was transmitted to the appellant for creating recovery, which was declared without lawful authority/jurisdiction and arbitrary by respondent No. 3 himself. In the presence of his order, no occasion was available either with respondent No. 1 to frame contravention report and respondents Nos. 2 and 3 to issue show-cause notice and pass order-in-original/appeal; their acts are tantamount to flouting the provision of sections 180, 193 and 194A(1) of the Act and the law laid down by the superior judicial fora that at a time only one order has to remain in the field, no second order is permitted to pile upon the existing order which attains finality.
This was held by the learned High Court to be in derogation of the principles of administration of justice" in the case of Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 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.
6. That as regard to the observation adduced by respondent No. 2 in operative para of the order that "he suggested in the earlier order dated 10.12.2015 that procedure for reassessment ought had to be adopted, one of which now had been adopted by the department is based on mistaken belief and inapt interpretation of his own order, which contain no suggestion for the respondent No. 1 evident from unambiguous observation made by him in the order dated 10.12.2015 reading as there are number of order of this forum, based on decision of the Customs Appellate Tribunal and superior judiciary. The assessment already finalized could not be disturbed without having recourse to show-cause notice under the relevant provision of the Custom Act, 1969. The instant appeal is allowed in line with the previous order." This order of his was complete/exhaustive and in consonance with the provision of the Act/principal of law and Article 13 enshrined in the Constitution of Pakistan.
7. It is also of paramount importance to subscribe that in terms of Rule of business that Officer of same grade is not empowered to pass an adverse order in the presence of order of Officer of same grade, wherein relief has been granted to a person after allowing the appeal after setting aside the order passed by subordinate authority . The incumbent respondent No. 3 and then Collector of Customs (Appeals) are of the same grade i.e. 20, respondent No. 3 is not empowered under the provision of the Act for nullifying the order passed by the former Collector of Customs Appe al dated 10.12.2015 despite passing of Order -in-Original/Appeal by respondents Nos. 2 and 3, the order passed by former Collector of Customs, Appeals remains intact being valid and lawful and the orders passed by respondents Nos. 2 and 3 bear no consequences whatsoever under the provision of the Act. The authority to over see the illegality/propriety of the order of the respondent No.2 and former Collector of Customs Appeal rests with the Collector of Customs or Board in terms of Section 195 of the Act, which could reopen an order passed by respondent No. 3 and that also prior to expiry of stipulated period .of 60 days available in Section 194A(1) of the Act. Once the time stood lapsed that order could not be reopened by the Board by virtue of a fortiori; as held in reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Centr al Board of Revenue that "if the order has attained finality through limitation. A fortiori: the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which so suo motu revision lay under the Act". Even otherwise, when the right of appeal is available to the Officer of Customs under Sections 193 and 194A (1) of the Act, Section 195 is un- operational and cannot be exercised under any circumstances as held in 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and another: "1st order -in-original passed in the subject matter was an appealable order for both the parties therefore option to reopen an order passed under the adjudicating hierarchy was not available to the Collector ,-- Even the Collector of Customs Adjudication could not over see or exercise any right of reopening of an order , which has been passed by an officer lower in rank but acting as an adjudicating authority .
Impugned order was set aside." In consonance with the aforesaid principle of law, I, hold that preparation of contravention report by respondent No. 1 and issuance/passing of show cause notice and order-in-original/appeal by the respondents Nos. 2 and 3 are an act of re-opening of the order of the then Collector of Customs Appeal under the provision of Section 195 of the Act, under which they are non entity , rendering their acts in derogation of the provision of sections 180, 193, 194A(1) and 195 of the Act and the law laid down by the Superior Judicial Fora, hence, ab-initio, null and void and as such coram non judice.
8. Notwithstanding, to the observation made here-in-above the reference made in the contravention report/show- cause notice and Order -in-Original to Section 32(3A) of the Act is out of proportion as invoking of the said section also render the entire proceeding right from preparation of contravention report to passing of order-in- original without lawful authority and jurisdiction. The Section 26A and Section 32(3A) of the Act have been inserted in the Act after creating of Directorate General of Post Clearance Audit through insertion of Section 3DD in the Act and official of which were delegated power under the different section of the Act including 26(2), 26A and 32(3A) through SRO 500(1)/2009 dated 13.06.2009 and Official of the Directorate of Post Clearance Audit are empowered to conduct audit of the record/books of an importer Post Clearance and upon finding any discrepancy or misdeclaration are empowered to issue audit observation to the importer for justification. In case the importer failed to justify the pointed out discrepancy/misdeclaration, the Director of Post Clearance Audit is empowered to frame contravention report under the provision of Section 32(3A) of the Act and forward that to the respective Collector of Customs, Adjudication for commencing adjudication proceedings. In the instant case of the appellant the respondent No. 1 conducted the audit under Section 26A and prepared contravention report under the provision of Section 32(3A) while usurping the powers of the Officer of Directorate General of Post Clearance Audit, which is not permitted under law any such act if committed has to be discouraged in the beginning because if allowed, it will create anarchy and compromise the independence of the different organs of the Revenue Division, empowered to act and operate within the specific sphere without any interference. I am therefore of the irresistible considered opinion that the respondents collectively acted without power/jurisdiction, rendering the conduction of audit, preparation of contravention report and connected proceeding thereof undertaken by the respondents Nos. 2 and 3 as ab initio, void and as such of no legal effect. 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) All Muhammad v. Hussain Buksh and others, (PLD 2001 Supreme Court 514) Land Acquisition Collector , Noshehra and others v. Sadraz 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, PLD 2004 Supreme Court 600 All Pakistan Newspaper Society v. FOP, PLD 2005 Supreme Court 842 Khyber T ractors (Pvt.) Ltd. v . FOP .
9. I have also noted that respondent No. 3 despite being zealous in passing the impugned illegal void order, failed to adhered the mandated period of 120 days of passing order from the date of filing appeal as per the enunciation of subsection (3) of Section 193A of the Act, evident from the fact that the appeal in the instant case was filed on 19.12.2016 and order by him should and must have been passed on or before 19.04.2017, which he failed, no further extension of 60 days was given by him and this was due to the fact that no "exceptional circumstances" were available. For validating the delay in passing order, he placed reliance on the extension granted by the Board vide C.No. 1(03)TO-II / 2017 dated 14.11.2017, which is not valid by virtue of the fact that it has to be given prior to the lapse of currency of initial period of 120 days, extension granted by the Board on 14.11.2017 is nothing more than flogging a dead horse for giving a lease of life. Any medication or cure has to be undertaken prior to demise of an issue, can't be revived even through artificial support when the issue had gone to the annul of history. Hence, the order passed by respondent No. 3 on 29.12.2017 is barred by time by 254 days. Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held by the Judicial Fora in their judgments reported at 2017 PTD 1756 and 2017 SCMR 1427 Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Din and Sons and others, 2008 PTD 60 Messrs 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 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v.
Collector of Sales Tax and Federal Excise, Lahore and 2 others 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 Customs, Lahore and others.
10. That although it is not warranted in the light of the adumbration made here-in-above, rendering .the order palpably illegal and without lawful authority/jurisdiction, I am in debited to lay down the issue of the instant case to rest once for all. Upon perusal of the import documents it has been observed by me that the goods imported by the appellant namely textile floor mats falls under PCT heading 5703.3030 declared by appellant of Chapter 57 meant for "Carpets and other textile floor covering" and PCT heading 5073.3030 with clarity expresses that in the said PCT heading floor mats other than motor car and vehicle falls. Nothing is available in record for the assistance of the Tribunal to consider/term the same contrary to the declaration as opined by the respondents that those falls under PCT heading 8708.2901 (not available in First Schedule to the Act.), Chapter 87 speaks about vehicle other than railway or tramway rolling-stock and parts and accessories thereof", the imported textile mats by the appellant cannot be construed as of mats or accessories of other than vehicle tramway, in the absence of availability of samples, forming parts of tangible incriminating evidence for nullifying the declaration of the appellant and clarification issued by the WCO in Section XVII corresponding to Chapter 87.08 that "other than of textile material or un harden vulcanized does not falls under this chapter or sub- chapter. Therefore, it is my considered opinion that the case against the appellant is based on assumption/presumption and conjecture and fishing inquiries which is not permitted under law as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1992 Supreme Court 485, The Assistant Director Intelligence and Investigation v. B.R. Herman Mohattas (Pvt.) Ltd., Karachi that 'it cannot make a rowing or fishing inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality". The said principle was subsequently held by the Superior Judicial Fora in reported judgment (1957)
32 ITR 89 (1967) 64 ITR 516, I. T.As. 2400/2401/KB/91-92,(1995) PTD (Trib.) 580, (1995) PTD (Trib.) 1152, (1982) 1381 ITR 742, 1993 PTD 206,1997 PTD (Trib.) 2209 and 2013 PTD (Trib.) 353.
11. In the light of above deliberation and adhering the ratio decidendi set-forth by the judicial fora, I, hold that the preparation of contravention report by respondent No. 1 and issuance of show-cause notice and passing of order-in-original/appeal by respondents Nos. 2 and 3 are ab-initio, illegal and void and as such is of no legal effect. Therefore, I, annul those and set aside the order passed by the forum below and allow the appeal as no order to cost.
JEHANZAIB WAHLAH MEMBER JUDICIAL-III.----Through this order. I intend to dispose off Appeal No. K- 76/2018 directed against Order-in-Appeal No. 853 dated 29.12.2017 passed by Collector of Customs (Appeals)
Karachi (respondent No. 3), maintain the Order-in -Original No. 320/2016-2017 dated 11.12.2016 passed by Deputy Collector of Customs, Adjudication-I, Karachi (respondent No. 2).
2. Brief, facts of the case are that the appellant imported a consignment of 3050 sum of textile floor mats, upon receipt of documents, he delivered those to his clearing agent Messrs Khurram Brothers, Karachi for filing Goods Declaration (GD) with the MCC of Appraisement-West under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 (Rules) and as per pre- requisite deposited upfront duty and taxes. Consequent to which GD was numbered as KAPW-HC, 54820- 04112013, which was selected for examination in terms of Section 198 and Rule 435 of the Act/Rules, through physical verification by the Official of MCC of Appraisement-West posted at KICT, goods were found as declared in all aspect, the examination report so prepared were posted in the reservoir of the GD. Upon appearance of those the competent authorities in the capacity of adjudicating authority as defined in Section 2(a) in exercise of the power vested upon them through SRO 371(1)/2002 dated 15.06.2002 passed assessment order under the provision of Section 80 and Rule 438 of the Act/Rules and transmitted view message for payment of additional duty and taxes worked out on the basis of assessment order. The appellant paid those, consequent to which the inbuilt authority passed clearance order as per the expression of Section 83 and Rule 442 of the Act/Rules. The appellant clearing agent thereafter obtained the deliveries of the consignment from the terminal and transported those to the appellant. That after lapse of about 2 years from the date of clearance the respondent No. 1 passed reassessment order through which recovery was created. Being aggrieved from the reassessment order the appellant preferred appeal before respondent No. 3, who declared vide order dated 10.12.2015 that the reassessment order passed by respondent No. 1 is without lawful authority the appeal by observing " there are number of orders of this forum, based on decision of the Customs Appellate Tribunal and superior judiciary. The assessment already finalized could not be disturbed without having recourse to show-cause notice under the relevant provision of the Custom Act, 1969. The instant appeal is allowed in line with the previous order."
Thereafter, the respondent No. 1 framed contravention report against the subject GD with the allegation that the appellant obtained the delivery of the imported goods under PCT heading under PCT heading 5703.3030 chargeable to custom duty @ 15% sales tax @ 17%, additional sales tax @ 3% and income tax @ 5.5% as against actual PCT heading 8708.2901 under which it is classified rightly and chargeable to custom duty @ 35% , sales tax 17% additional sales tax 3% and Income tax @ 5.5%. Hence, mis-delcared PCT heading for causing loss to the exchequer to the tune of Rs. 344,399.00. This act of his falls within the contravention of sections 32(1), (2), 79(1) of the Act, Section 33 of the Sales Tax Act, 1990 and 148 of the Income Tax Ordinance, 2001 punishable under clauses (14), (14A) of Section 156(1) of the Customs Act, 1969 and transmitted the same to respondent No. 2 on the strength of which he issued show-cause notice dated 11.08.2016 incorporating all the facts and the provision of the Act, Sales Tax Act and Income Tax Ordinance, 2001 narrated in the contravention report prepared by respondent No. 1 without even change of comma or full stop. The appellant consultant through reply dated 19.08.2016 challenged the authority of respondents Nos. 1 and 2 of preparation contravention report and issuance of how cause notice in the esence of order of the respondent No. 3 and in the absence of enabling provision of the Act empowering the respondents Nos. 1 and 2 to frame contravention report and to issue show cause notice on a matter, which has already decided in his favour by respondent No. 3 and which had attained finality by virtue of non availing remedy under the provision of Section 194A(1) of the Act filing of appeal, in addition to other argument through which he challenged the, jurisdiction of respondent No. 1 of conducting audit under the provision of Sections 26(2) and 26A of the Act and of respondent No. 2 under the provision of Sales Tax Act, 1990 and -Income Tax Ordinance, 2001. The respondent No. 2 brushed aside the averment/argument of the appellant and passed order dated 18.11.2016 through which she held the charges as established against the appellant and ordered payment of Rs.344,366.00, along with imposed penalty of 50,000.00. Vires of the said order was challenged before respondent No.3, who without going through earlier order and the proposition of law rejected the same. in very wanton, cursory unilateral/arbitrary order dated 20.12.2017, relevant portion is reproduced here-in-under: "The main point in above decision was the assessment already finalized could not be disturbed without having recourse to show-cause notice under "the relevant provision of Customs Act, 1969". This clearly shows that the order brushed aside the procedure to recover the short paid amount being not in line with the provisions of the Customs Act, 1969. This order has in no way held that the amount was not due or not recoverable. The order infact suggested the procedure to be adopted in case of re-assessment. Now the respondent department has adopted one of the legal course and it is show-cause notice. Thus it is not double jeopardy , the appellant has not contested the merits of the case with regards to assessment of the goods , thus the impugned order is upheld. The appeal fails".
3. The appellants filed the appeals 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 have been filed within the stipulated period of 30 days by the respondent No. 1 against the appeals preferred by the appellants instead comments, which are not in any manner qualify memo. of cross objection, to be termed as cross appeals filed under subsection (3) by the respondent No. 1 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. Heard and perused case record. This appeal could be allowed on the short point that as to whether the respondents Nos. 1, 2 and 3 were empowered to frame contravention report and issue/pass show-cause notice and the impugned order-in-original/appeal in the presence of Order-in-Appeal dated 10.12.2015 passed by respondent No. 3 himself through which he declared the passing of re-assessment order and view message for creating recovery as without lawful authority/jurisdiction and arbitrary. For challenging the vires of the order of the respondent No. 3, mechanism defined in Section 194A (1) is available in the Act, which read as follows: 194A - Appeal to the Appellate Tribunal:- (1) Any person or an Officer of Customs agreed by any of the following order may appeal to the Appellate Tribunal against such order:- A decision or order passed by an of ficer of Customs not below the rank of Additional Collector under Section 179.
(ab) An order passed by Collector (Appeals) under section 193; (c)
(d)
(e)
(3) Every appeal under this section shall be filed within 60 days from the date of which the decision or order sought to be appeal against is communicated to the Board or the Collector of Customs or as the case may be, the other party preferring the appeal. 5.
The proper course of action available with the respondent No. 1 was to file appeals against the order of respondent No. 3 before the Customs Appellate Tribunal in terms of clause (ab) of Section 194A (1) of the Act within 60 days as expressed in subsection (3) ibid i.e. on or before 09.02.2016, ironically appeal was not filed and the order of the respondent No. 3 attained finality. However, after lapse of the stipulated period, respondent No. 1 woke up from his slumber and in order to cover up his negligence/carelessness and above all lapse of the period of 60 days flogged the dead horse in order to give new lease of life by preparing contravention report based on the same fact and grounds on which reassessment order was passed under the provision of Section 80(3) of the Act and view message and even date was transmitted to the appellant for creating recovery, which was declared without lawful authority/jurisdiction and arbitrary by respondent No. 3 himself. In the presence of his order, no occasion was available either with respondent No. 1 to frame contravention report and respondents Nos. 2 and 3 to issue show-cause notice and pass order-in-original/appeal; their acts are tantamount to flouting the provision of sections 180, 193 and 194A(1) of the Act and the law laid down by the superior judicial fora that at a time only one order has to remain in the field, no second order is permitted to pile upon the existing order which attains finality.
This was held by the learned High Court to be in derogation of the principles of administration of justice" in the case of Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 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.
6. That as regard to the observation adduced by respondent No. 2 in operative para of the order that "he suggested in the earlier order dated 10.12.2015 that procedure for reassessment ought had to be adopted, one of which now had been adopted by the department is based on mistaken belief and inapt interpretation of his own order, which contain no suggestion for the respondent No. 1 evident from unambiguous observation made by him in the order dated 10.12.2015 reading as there are number of order of this forum, based on decision of the Customs Appellate Tribunal and superior judiciary. The assessment already finalized could not be disturbed without having recourse to show-cause notice under the relevant provision of the Custom Act, 1969. The instant appeal is allowed in line with the previous order." This order of his was complete/exhaustive and in consonance with the provision of the Act/principal of law and Article 13 enshrined in the Constitution of Pakistan.
7. It is also of paramount importance to subscribe that in terms of Rule of business that Officer of same grade is not empowered to pass an adverse order in the presence of order of Officer of same grade, wherein relief has been granted to a person after allowing the appeal after setting aside the order passed by subordinate authority . The incumbent respondent No. 3 and then Collector of Customs (Appeals) are of the same grade i.e. 20, respondent No. 3 is not empowered under the provision of the Act for nullifying the order passed by the former Collector of Customs Appe al dated 10.12.2015 despite passing of Order -in-Original/Appeal by respondents Nos. 2 and 3, the order passed by former Collector of Customs, Appeals remains intact being valid and lawful and the orders passed by respondents Nos. 2 and 3 bear no consequences whatsoever under the provision of the Act. The authority to over see the illegality/propriety of the order of the respondent No.2 and former Collector of Customs Appeal rests with the Collector of Customs or Board in terms of Section 195 of the Act, which could reopen an order passed by respondent No. 3 and that also prior to expiry of stipulated period .of 60 days available in Section 194A(1) of the Act. Once the time stood lapsed that order could not be reopened by the Board by virtue of a fortiori; as held in reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Centr al Board of Revenue that "if the order has attained finality through limitation. A fortiori: the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which so suo motu revision lay under the Act". Even otherwise, when the right of appeal is available to the Officer of Customs under Sections 193 and 194A (1) of the Act, Section 195 is un- operational and cannot be exercised under any circumstances as held in 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and another: "1st order -in-original passed in the subject matter was an appealable order for both the parties therefore option to reopen an order passed under the adjudicating hierarchy was not available to the Collector ,-- Even the Collector of Customs Adjudication could not over see or exercise any right of reopening of an order , which has been passed by an officer lower in rank but acting as an adjudicating authority .
Impugned order was set aside." In consonance with the aforesaid principle of law, I, hold that preparation of contravention report by respondent No. 1 and issuance/passing of show cause notice and order-in-original/appeal by the respondents Nos. 2 and 3 are an act of re-opening of the order of the then Collector of Customs Appeal under the provision of Section 195 of the Act, under which they are non entity , rendering their acts in derogation of the provision of sections 180, 193, 194A(1) and 195 of the Act and the law laid down by the Superior Judicial Fora, hence, ab-initio, null and void and as such coram non judice.
8. Notwithstanding, to the observation made here-in-above the reference made in the contravention report/show- cause notice and Order -in-Original to Section 32(3A) of the Act is out of proportion as invoking of the said section also render the entire proceeding right from preparation of contravention report to passing of order-in- original without lawful authority and jurisdiction. The Section 26A and Section 32(3A) of the Act have been inserted in the Act after creating of Directorate General of Post Clearance Audit through insertion of Section 3DD in the Act and official of which were delegated power under the different section of the Act including 26(2), 26A and 32(3A) through SRO 500(1)/2009 dated 13.06.2009 and Official of the Directorate of Post Clearance Audit are empowered to conduct audit of the record/books of an importer Post Clearance and upon finding any discrepancy or misdeclaration are empowered to issue audit observation to the importer for justification. In case the importer failed to justify the pointed out discrepancy/misdeclaration, the Director of Post Clearance Audit is empowered to frame contravention report under the provision of Section 32(3A) of the Act and forward that to the respective Collector of Customs, Adjudication for commencing adjudication proceedings. In the instant case of the appellant the respondent No. 1 conducted the audit under Section 26A and prepared contravention report under the provision of Section 32(3A) while usurping the powers of the Officer of Directorate General of Post Clearance Audit, which is not permitted under law any such act if committed has to be discouraged in the beginning because if allowed, it will create anarchy and compromise the independence of the different organs of the Revenue Division, empowered to act and operate within the specific sphere without any interference. I am therefore of the irresistible considered opinion that the respondents collectively acted without power/jurisdiction, rendering the conduction of audit, preparation of contravention report and connected proceeding thereof undertaken by the respondents Nos. 2 and 3 as ab initio, void and as such of no legal effect. 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) All Muhammad v. Hussain Buksh and others, (PLD 2001 Supreme Court 514) Land Acquisition Collector , Noshehra and others v. Sadraz 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, PLD 2004 Supreme Court 600 All Pakistan Newspaper Society v. FOP, PLD 2005 Supreme Court 842 Khyber T ractors (Pvt.) Ltd. v . FOP .
9. I have also noted that respondent No. 3 despite being zealous in passing the impugned illegal void order, failed to adhered the mandated period of 120 days of passing order from the date of filing appeal as per the enunciation of subsection (3) of Section 193A of the Act, evident from the fact that the appeal in the instant case was filed on 19.12.2016 and order by him should and must have been passed on or before 19.04.2017, which he failed, no further extension of 60 days was given by him and this was due to the fact that no "exceptional circumstances" were available. For validating the delay in passing order, he placed reliance on the extension granted by the Board vide C.No. 1(03)TO-II / 2017 dated 14.11.2017, which is not valid by virtue of the fact that it has to be given prior to the lapse of currency of initial period of 120 days, extension granted by the Board on 14.11.2017 is nothing more than flogging a dead horse for giving a lease of life. Any medication or cure has to be undertaken prior to demise of an issue, can't be revived even through artificial support when the issue had gone to the annul of history. Hence, the order passed by respondent No. 3 on 29.12.2017 is barred by time by 254 days. Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held by the Judicial Fora in their judgments reported at 2017 PTD 1756 and 2017 SCMR 1427 Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Din and Sons and others, 2008 PTD 60 Messrs 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 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v.
Collector of Sales Tax and Federal Excise, Lahore and 2 others 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 Customs, Lahore and others.
10. That although it is not warranted in the light of the adumbration made here-in-above, rendering .the order palpably illegal and without lawful authority/jurisdiction, I am in debited to lay down the issue of the instant case to rest once for all. Upon perusal of the import documents it has been observed by me that the goods imported by the appellant namely textile floor mats falls under PCT heading 5703.3030 declared by appellant of Chapter 57 meant for "Carpets and other textile floor covering" and PCT heading 5073.3030 with clarity expresses that in the said PCT heading floor mats other than motor car and vehicle falls. Nothing is available in record for the assistance of the Tribunal to consider/term the same contrary to the declaration as opined by the respondents that those falls under PCT heading 8708.2901 (not available in First Schedule to the Act.), Chapter 87 speaks about vehicle other than railway or tramway rolling-stock and parts and accessories thereof", the imported textile mats by the appellant cannot be construed as of mats or accessories of other than vehicle tramway, in the absence of availability of samples, forming parts of tangible incriminating evidence for nullifying the declaration of the appellant and clarification issued by the WCO in Section XVII corresponding to Chapter 87.08 that "other than of textile material or un harden vulcanized does not falls under this chapter or sub- chapter. Therefore, it is my considered opinion that the case against the appellant is based on assumption/presumption and conjecture and fishing inquiries which is not permitted under law as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1992 Supreme Court 485, The Assistant Director Intelligence and Investigation v. B.R. Herman Mohattas (Pvt.) Ltd., Karachi that 'it cannot make a rowing or fishing inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality". The said principle was subsequently held by the Superior Judicial Fora in reported judgment (1957)
32 ITR 89 (1967) 64 ITR 516, I. T.As. 2400/2401/KB/91-92,(1995) PTD (Trib.) 580, (1995) PTD (Trib.) 1152, (1982) 1381 ITR 742, 1993 PTD 206,1997 PTD (Trib.) 2209 and 2013 PTD (Trib.) 353.
11. In the light of above deliberation and adhering the ratio decidendi set-forth by the judicial fora, I, hold that the preparation of contravention report by respondent No. 1 and issuance of show-cause notice and passing of order-in-original/appeal by respondents Nos. 2 and 3 are ab-initio, illegal and void and as such is of no legal effect. Therefore, I, annul those and set aside the order passed by the forum below and allow the appeal as no order to cost.