JEHANZAIB WAHLAH, MEMBER JUDICIAL-III .---Through this order , I dispose off appeal bearing No. K- 841/2018 directed against the Order-in-Original No. 328/2016-2017 dated 21.11.2016 passed by Additional Collector of Customs, Adjudication-I, Customs House, Karachi.
2. Briefly facts of the case are that the appellant during the course of his business activities imported a consignment of flavored fruit juices from Malaysia valuing to US$. 45,872.64 C&F , upon receipt of shipping documents he transmitted 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 Appraisement-W est and as per pre-requisite deposited upfront duty and taxes of Rs.1,282,895.00, consequent to which his GD was numbered as KAPW -HC-206163 dated 23.06.2015. The consignment was selected for examination under the provision of section 198 and Rule 435 of the Act/Rules. Wherein, declaration was confirmed to the extent of all aspects and report so prepared was uploaded in the reservoir of GD, upon receipt of the same the Assessing Officer transmitted view message under Rule 437 for scanning of Health Certificate and Certificate of origin, which were accordingly uploaded consequent to which he passed assessment order dated 29.06.2015 under the provision of Section 80 and Rule 438 for levy of duty and taxes while adducing remarks in the assessment note reading as "SRO benefits 568(I)/2014-2e -RD t 0% not extended as claim not covered. Hence completed accordingly" and transmitted view message of even date for payment of duty and taxes of Rs.622,420.00 which were paid on 29.06.2015, on the strength of which inbuilt authority of WeBOC passed clearance order under Section 83 and Rule 442 of the Act/Rules and appellant obtained delivery from the terminal.
After lapse of more than 02 years from the date of delivery appellant came to know about issuance of a recovery notice dated 24.11.2017 for which consu ltant forwarded letter dated 21.12.2017 to the respondent No.1 with the submission that neither impugned show-cause notice or order-in-original have been served upon appellant on his changed address and requested him to supply those along with covering letter . No compliance whatsoever was made, instead NTN of the appellant was blocked, for which letter dated 16.05.2018 was forwarded to Collector of Customs, MCC of Appraisement-W est, who refused to unblock the NTN as he himself ordered blocking of that even in the absence of availability of power/warrant of law. This act of his cons traint the appellant to approach Hon'ble High Court of Sindh through Constitutional Petition under Article 199, which vide ordered dated 29.05.2018 to unblock the NTN. In between the said exercise , appellant consultant, asked the Collector of Customs to order the respondent No. 1 to supply copy of the order-in-original and show-cause notice, enabling the appellant to exercise his right of appeal guaranteed under Section 194 of the Act and Constitution of Islamic Republic of Pakistan, the requisite was supplied by the respondent No. 1 to the appellant vide letter dated 29.05.2018, which was not legible, hence, request was made to supply legible copy, which he refused, resultant consultant in his office reproduced the order-in-original, on the strength of which instant appeal was filed with the Appellate Tribunal on 16.07.2018. In para 4 of the order respon dent No.2 held the charges as levelled in the show-cause notice against the appellant as established and ordered payment of short levied/paid amount of duty and taxes along with imposed penalty of Rs.200,000.00 which is reproduced here-in-under for easement: "I have examined the case record and considered the arguments put forth during hearing by the department. As stated earlier despite repeated hearing opportunities no reply to the show-cause notice was received in this office from the respondent's side nor anyone attended any of the several hearing on their behalf. The upshot of the department's case is that the importer / respondent wrongly availed the exemption of customs duty under SRO 1261(1)/2007 on the import of Fruit Juices from Malaysia by mis-declaring the HS Codes. The impugned goods were assessed under single HS Code 2009.1900 extending benefit of the said SRO despite the fact that juices of Apple, Red Grapes, Peach and Pine Apple respectively , fall under HS Code 2009.7100, 7900.2009, 6100.6900, 2009.8100/89000 and 2009.4100/4900, on which no exemption of custom duties available under SRO ibid. The D.R. stated during the course of hearing that exemption of customs duty was only available to Orange Juice (2009.1900) and Pine Apple Juice (2009. 4900) under SRO 1261(l)/2007 dated 30.12.2007. The act of intentionally mis-declaring the PCT heading of Juices of Apple, Red Grapes, and Peach by clubbing them under the incorrect single PCT Heading of Orange Juice by the importer falls within the ambit of Section 32(1) and (2) of the Customs Act, 1969. In view of the above, it is evident that the respondent failed to file correct declaration under section 79(1) of the Customs Act, 1969 and on the basis of his mala fide action unlawfully claimed availed in admissible exemption under SRO 1261(1)/2007 dated 30.12.2007. Hence, the charges levelled in the show-cause Notice stand established. The importer is directed to deposit the evaded amount of taxes amounting to Rs.1,428,007/- (as determined by the department) into the Government Treasury in terms of Sections 32(1), (2) and 79(1) of the Customs Act, 1969 read with Sections 3, 6, 33 and 34 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001 (along with default surcharge to be calculated by the department at the time of payment) failing which action may be initiated against the respondents under section 202 of the Customs Act, 1969 read with Chapter XII (Recovery Rules) of the Customs Rules, 2001 notified vide SRO 450(1)/2001 dated 18.06.2001. A penalty of Rs.200,000/- (Rupees. Two hundred thousand) is also imposed on the respondents for violation of above mentioned provisions of law ."
3.The appellant filed 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 were filed within the stipulated period of 30 days by the respondent No. 1, as expressed in aforesaid section. However , the representative of the respondent on the date of hearing forcefully defended the order passed by respondent No.2 as correct in fact and law, in addition to the submission that the appeal in question is barred by time by 541 days. Hence, same may be dismissed as not maintainable while maintaining the impugned order .
4. Rival parties heard and perused case record and so the relied upon judgments. Prior to proceeding in deciding the factual and legal grounds taken by the appellant, it is apt to decide the objectio n raised by the office in regards to !imitation of the appeal, which as opined by the Assistant Registrar is 541 days time barred, stress on the said fact has also been laid by the representative of the respondents for obtaining order merely on limitation. In the instant case the impugned show-cause notice forming root cause of the Order-in-Original No. 28/2016-17 dated 21.11.2016 passed by the respondent No. 2 was infact not issue as evident from the order , which is silent in this regards. Neither it had been served on the appellant as per the mandated requirement of section 215 of the Act.
Prior to proceeding for adjudication either properly or summarily , it is pre-requisite to issue and serve statutory show-cause notice under section 180 ibid, enabling the person to whom it has been issued to know the levelled charges and the applicable contravened provision of the Act and the attracted penal clauses. The respondent No. 2 has no right to ignore the said mandated requirement of law. The FBR through Para 78 of Customs General Order 12/2002 dated 15.06.2002 laid emphasis on the said statutory provision. For further laying stress and compliance on the even date, FBR exclusively renewed the warrant of law vide letter C.No. 730-M(L)/2002. Sub-Para (iii) of Para 2 is relevant in this regard, which read as " show-cause notices should conta in the brief facts of the case, the offence(s) committed and the evidence (s) on the presumption of which the allegation are based, the law that has been violated and the penal clauses that are attracted. 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 levelled against him." It is mandated to issue show-cause notice under section 180 of the Act. Even otherwise in cases where request for summary adjudication is made, issuance of show -cause notice is mandatory prior to proceeding summarily as held by Customs, Excise and Sales Tax Appella te Tribunal, Peshawar recorded in his judgment reported as 2004 PTD (Trib.) 1324 "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 Custo ms Act, 1969 do not absolve the Adjudicating Of ficer of discharging his responsibility to comply with the given charter ."
5. Issuance/serving of show-cause notice is a mandatory requirement and adherence to that has to be made by the adjudicating authority without exception, prior to proceeding in the matter placed before him for decision. Non- compliance of the same is violation of the principle of natural justice as held by Superior Courts in so many words in reported judgments that "(a) 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. (b) 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 "Expression Facit Cessare Taciturn " as observed by the Apex Court in their judgments reported as PLD 1964 SC 536, 2003 SCMR 1505 , 2006 SCMR 129. (c) Violations of principle of natural justice can be equated with violations of provisions of statutory instruments. (d) 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 Hon"ble Supreme Court, Shariat Appellate Bench in the case of Pakistan v. Public at large reported as PLD 1987 Supreme Court 304. (e) 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 issue d 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. (f) 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 as 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 Snelson'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 and Article 10A (fair trial) of the Constitution, the order-in-original passed by the respondent No.1 is ab initio, null and void and the structure built upon this order has no legal value.
6. The order passed by respondent No.2 is mala fide and based on intellectual dishonesty , which stands proved from para 3 of the order which states "the case was fixed for hearings on 5.08.2016, 17-8-2016, 08.09.2016, 22.09.2016, 07.10.2016, 17.10.2016 and 02.11.2016 no one appeared on behalf of the respondent on any of the above mentioned dates of hearing nor any adjournment request was received". The Appellant states under oath that the respondent No. 2 did not dispatched/served either impugned show-cause notice nor hearing notices referred in the order to him, resultant the question of appearance does not arise at all. Non receipt of the show- cause and subsequent hearing notices by him fall within the expression of the words "not served" as per the provision of Section 215 of the Act. Mere preparing of show-cause and hearing notices are not enough, rather these had to be served on the effected person/registered tax payer as held by the High Court of Sindh in its reported judgment 1989 ALD 518 (2) in the case of Messrs Darbar Impex v. Central Board of Revenue ". "It is not enough that the notice/order is merely issued; its service is mandatory in law. Unless notice is proven to have been served, within the prescribed perio d, the same would not been considered to be in accordance with the requirement of the Act. Wherein, in yet another case, while declaring the impugned order as void and ab initio, their Lordship of the High Court of Sindh in its reported judgment 2006 PTD 1207 in the case of Sheikh Rashid Ahmed and another v. The Assistant Collector , Special Recovery Cell, Collectorate of Customs (Exports) Karachi and 4 others held that "We are afraid such high handedness on the part of officer vested with the extensive powers for recovery of the public revenue has to be strongly discouraged. No date of hearing was ever notified to the petitioner and nor the said order was communicated".
7. The appeal is not barred by time as order has been served on the Appellant's consultant by the respondent No.1 through covering letter dated 29.05.2018 as per the contemplation of Section 215 of the Act and date for filing appeal before the Tribunal has to be reckoned from the date of serving of the order, which was 29.05.2018 against which appeal has been filed on 16.07.2018 i.e. within 48 days i.e. 12 days earlier to the stipulated period of 60 days. Even otherwise, it is settled proposition of law that the specified limitation in the provision of the Act does not run against ab-initio void order , akin to the case of appellant as held in reported judgments 1986 SCMR 962 Rehmat Bibi and others v. Punno Khan and others , 1996 SCMR 2296 Syed Haji. Abdul Wahid and another v.
Syed Sirajuddin and PLD 1976 Supreme Court 37, Ali Muhammad v. Hussain Bux and another , wherein it has been held that "On the question of limitat ion, the learned judges referred to a number of decision of this court and held that if an order is without jurisdictio n and void then it needs not to be formally set-aside. In Yousuf Ali v.
Muhammad Aslam Zia and others in reported judgment PLD 1958 SC (Pak.) 104(1) it was said by this Court.
Where the legislature clothes an order with finality , it always assume that the order which it declares to be final is within the power of the authority making it and no party can plead as final and order made in excess of powers of the authority making it, in the eyes of law, such order being void and non-existent". In PLD 1965 SC 68 Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (2) it was said that an order without jurisdiction is a nullity in law and it does not require to be set aside formally . Again in PLD 1967 SC 294 Syed Ali Abbassi and others v. Vishan Singh and others (3) it was observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refus ed relief and penalized for not throwing himself again by way of revision or review on the mercy of the authority who were responsible for such excess this being the rule firmly established, the dismissal of writ petition by the learned single judge on finding that the appeal before the Additional Settlement Commissioner was barred by time and in dismissing it he had acted with jurisdiction was not warranted in law." In adherence the ratio decidendi the Hon'ble High Court of Sindh in reported judgment 2002 PTD 87 FOP v.
Metropolitan Steel Corporation held that "when a Court or a Tribunal assume jurisdiction not vested by law or failed to exercise jurisdiction so vested its order may be void and in nullity to law. However , when its act illegally or material irregularity in the exercise of its jurisdiction the order is only voidable but not void and thereafter held that limitation does not runs against void order instead against voidable order ." In the light of the order of the Superior Judicial Fora the Tribunal in umpteenth reported judgment held that no limitation runs against the void order e.g. 2010 PTD (Trib.) 1636 and many other akin to the instant case as evident from the deliberation made by me in the penultimate paras. Therefore, I overrule the objection of the office and respondents and hold that the appeal is within time.
8. The legislature has inserted Section 3DD in the Act through which Directorate General of Post Clearance Audit (DGPCA) has been created and its official had been delegated powers through SRO 500(l)/2009 dated 13.06.2009 for conducting audit of the importer books of account maintained under Section 211 of the Act under the provision of section 26(2) after serving notice/summon under clause (a) of Section 26A of the Act, they are empowered to look into every aspects of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 and Rule 438 of Act/Rules and prepare audit observation and forwarded that to the importer for clarification, if the reply fail to settle the issue, frames contravention report and forward it to the Clearance Collector which onward forward to the respective Collectorate of Customs Adjudication for issuances of show-cause notice under Section 180 of the Act, and passing of order-in-original by the authority defined in Section 179 ibid. The respondent No. 1 assumed the powers of officials of DGPCA and conducted the Audit Post Clearance of the GD of the appellant under Section 26(2) while exercising the powers specifically delegated to the officials of the DGPCA. Neither respondent No.1 nor his higher officials are empowered to encroach the sovereign jurisdiction of DGPCA under any circumstances as this will render the formation of DGPCA by the legislature under Section 3DD of the Act, and the powers delegated under SRO 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 DGPCA in derogation of Section 3DD ibid, This is not permitted under law , if it is left to be perpetuated, anarchy will prevail within the different organs of FBR to encroach powers/jurisdiction of each other , despite having no lawful authority/jurisdiction. This type of intention/act cannot be validated under any circumstances and has to be crushed in the initial stages for maintaining the integrity and sanctity of the different sovereign organs of FBR. Therefore, the conduction of audit post clearance under section 26(2) by the respondent No.1 of the GD is without lawful authority/jurisdiction. Hence, ab-initio null and void and as such coram non judice. The superstructure built thereupon ought to be crumble down no matter how strong it may be.
9. The expression of Section 179 of the Act is unambiguous in regards to determination of the powers of the adjudicating authority on the basis of "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes". In this case the amount involved is Rs.3,333,331.00 (paid Rs.1,282,895.00 for obtaining clearance on 23.06.2015 + paid additional amount of duty and taxes of Rs.622,429.00 paid on 29.06.2015 + revenue loss shown in show-cause notice Rs.1,428,007.00. The competent authority to adjudicate the case of said amount under clause (ii) of Section 179 (1) of the Act rest with Collector of Customs. To the contrary , Respondent No.2 issued show-cause notice while usurping the powers of his superiors. This is not permitted under law. Not a single word has been inscribed in the comments , which is tantamount to admission and confirms that the Respondent No.2 usurped the powers of Collector and issued show-cause notice in derogation of the explicit provision of section 179(1), for better appreciation verbatim of the same is reproduced here-in-under:
179. Power of adjudication:- (1) Subject to subsection (2) in cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any, other contravention under this Act the rules made there-under , the jurisdiction and powers of the officers of Customs in terms of amount of duties and other taxes involved , excluding the conveyance, shall be as follows, namely:-
(i) Collector no limit
(ii) Additional Collectornot exceeding three million rupees
(iii) Deputy Collector not exceeding one million rupees.
(iv) Assistant Collector not exceeding five hundred thousand rupees
(v) Superintendent not exceeding five hundred thousand rupees
(vi) Principal Appraise not exceeding five hundred thousand rupees [Provided that in cases of goods to be exported, the above officers of customs shall have their jurisdiction and powers in terms of FOB value and twice their respective monetary limit.]
(2) Notwithstanding the provisions of sub section (1), the Board may, by notification in the officials Gazette, fix or vary the jurisdiction and powers of any officer of Customs or a class of officers , and may also assigns or transfer {by an order} any case to any {of ficer} of customs, irrespective of the territorial jurisdiction. (emphasis supplied)
10. From conscientious study of Section 179(1) of the Act, it is abundantly clear that the authority defined therein has to exercise powers, neither superior nor subordinate is empowered to assume the powers of his superior or subordinates, unless Board is desirous of fixing or varying the jurisdiction and powers of any Officer of Customs or a class of Officers, through a notification in official Gazette as per the expression of subsection (2) of Section 179 assign or transfer any case to any Officer of Customs irrespective of designation or territorial jurisdiction. In the instant case no notification of the Board has been presented empowering Respondent No. 3 for exercising powers of his superior . He assumed the powers of the Board himself in negation of Sub Section (2) of Section 179 ibid., which he could not assume under any pretext/circumstances. This defect renders the show-cause notice without lawful authority and jurisdiction. It is to be noted that no mis-declaration in material particular is available in the declaration of the appellant submitted under Section 79(1) and Rule 433 of the Act/Rules , followed by uploading of the documents in compliance to the received view message under Rule 437, which formed integral part of the declaration as defined in Section 2 (kka) of the Act, resultant, the provision of section 32(2) is not applicable and the case of the appellant falls within the ambit of Section 32(3), inadvertence, error or misconstruction on the part of respondent No.1 or his subordinates. For recovery of short paid duty and taxes in such like situation, show- cause notice has to be issued by the Principal Appraiser in terms of clause 2(iii) of SRO 371(1)/2002 dated 15.06.2002. Meaning thereby that he is the only authority to proceed in the matter in that case is not respondent No. 2. Therefore, I hold that the show-cause notice and order-in-original is ab initio, void and ab-initio wrong and the superstructure built there upon no matter how strong it may be has to crumble down. This has been held by the Hon'ble Supreme Court of Pakistan in the case "Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR (240)) has held that the Institution specifically barred to adjudicate any matter to the exten t of certain mandatory limits shall not be competent and had no jurisdiction to deal with any such matter exceeding the limit subscribe under the law. Hon'ble Supreme Court of Pakistan has held in the case of "Sardar Ahmed Yar Khan Jogzai v. Province of Balochista n" 2002 SCMR 1022 that "where essential features for assumptions of jurisdiction is contravened or forum exercises powers not vested in it or exceed authority beyond limit prescribed by law, the judgment is rendered coram non judice and in operative," Hon'ble Supreme Court of Pakistan in re "Faqir Abdul Majeed Khan v. District Returning Officer and others" 2006 SCMR 1713 has observed that by now it is well settled that any order which suffers from patent illegality or, without jurisdiction, deserve to be knock down.
Whereas, the Hon'ble Supreme Court took a very serious notice in reported judgment 2001 SCMR 1822 Ali Muhammad v. Chief Settlement Commissioner , wherein the Hon'ble Chief Justice presiding a Bench in the capacity of Judge of Supreme Court as was then their lordship was 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 exercised 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" re : PLD 1958 SC 104 , PLD 1973 SC 326, PLD 2002 SC 630, 2003 SCMR 50, 2004 SCMR 25, 2004 SCMR 1798 and PLD 2005 Supreme Court 842. I, therefore, declare the show-cause notice and order-in-original without power/jurisdiction on this count also Hence, void and ab-initio and coram non judice .
11. I, have also noticed with great concern that respondent No.2 in the show-ca use notice have invoked clause 11(c) of Section 33 of the STA and Section 148(1) of the ITO and that also intentionally while ignoring the fact that clause 11(c) of Section 33 speaks about imposition of penalty as whole of section 33 contains penal clauses synonymous to Section 156(1) of the Act, it cannot be invoked in isolation unless charging/respective contravening section of the STA is not invoke. Whereas , Section 148 of the ITO is a machinery section as it contains procedure for collection of Income Tax levied at import stage on the value determined either under Section 25 or with the application of valuation ruling issued by the Director , Directorate General of Valuation through express under Section 25A of the Act by the authorities expressed in subsection (8) of Section 148 of the ITO. No charge under these sections can be invoked, issuance of show-cause notice on the basis of irrelevant sections, renders it void and ab-initio and of no legal effect as held in reported judgment judgments Asst. Collector v. Khyber Elec.
Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593 , Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl.
Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898 , Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs .
12. That it has been forcefully contended by the Consultant/ Advocate of the Appellant that Respondent No.2 even has no mandate to issue show-cause notice in the matter of Sales Tax/Income Tax. Whereas, Respondents are of the view that incorporation of the word "tax" in Sections 32(2) and (3) and 179 of the Act and the clarification issued by the Board vide C.No.3(32)T ar-1/90 dated 06.08.2012 and legal opinion of Ministry of Law vide No. F.242/2012- Law. I dated 11.07.2012 is sufficient for assuming powers under the charging Sections of Section 11 of the STA and 162(1) of ITO. Upon perusal of Section 32(2) and (3) of the Act, I have observed that although the word "tax" is available, this does not empowers the Respondent No. 2 to assume powers under the provision of Section 11(2) and (3) of the STA and 162(1) of the ITO unless Legislature appoint officer of Custo ms/ respondent No.2 as "Officer of Inland Revenue/Commissioner of Income Tax", who has powers under these Sections to take cognizance in the matter relating to Sales Tax and Income Tax. It is to be noted that the word tax" inserted in sections 179 and 32 of the Act is for only assuming of powers on the basis of involved duty and taxes by the appropriate adjudicating authority defined in subsection (1) and in section 32, for empowering the Officer of Customs to charge the tax payer under the said provision on the basis of amount of duty and taxes, punishable under the respective provision of Section 156(1) of the Act. Therefore, despite of insertion of the word taxes in both the Sections adjudicating authority including the Respondent No.2 have to issue show-cause notice within the respective applicable provision of the Act only and not under any charging or Section 11 of the STA and Section 162(I) of the ITO, which are otherwise non-existence in the show-cause notice and charge against the Appellant has been levelled under Section 11(c) of Section 33 of STA and 148 of the ITO, which are irrelevant. Even otherwise, the Respondent No.2 has also relied upon clauses (14) and (14A) of section 156(1) of the Act, applicable in the case of mis-declaration falling within the ambit of Section 32 of the Act. These clauses cannot invoked in the matter of Sales Tax and Income Tax falling under sections 1 1 and 162(1) ibid.
13. For lending further clarity to the issue I have scrupulously gone through the provision of section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 and observed that Respondents have not been appointed as an Officer of Inland Revenue under these Sections. Resultant, they are not empowered to exercise the powers under Section 11 of the STA and Section 162(1) of the ITO, which empowers Officer of Inland Revenue/Commissioner of Income Tax to initiate adjudication proceeding for recovery of short L collected/paid Sales Tax/ Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Hence, Respondents are not empowered to lay hands on any matter falling under the ambit of Section 11 of the STA and Section 162 (1) of the ITO. Reliance on the clarification of the Board vide C.No.3(32)T ar-1/90 dated 06.08.2012 and opinion of the Ministry of Law vide No.O.M.No.F .242/2012-Law-I dated 11.07.2012 lend no help to the Respondent No.2 as Board and Ministry of Law and Justice have no mandate to interpret the provision of the Act or amend the provision. It can only give opinion, it is for the judicial Fora to interpret the provision of statute and our opinion stood validated from the reported judgment 2005 PTD 2462 Messrs Lever Brother Pakistan Ltd. v. Customs Sales Tax and Central Excise Appellate Tribunal, Karachi that "CBR has no place to in the Scheme of Law, conferred with the jurisdiction to interpret any law, statutory or in exercise of any deliberate authority i.e. subordinate legislation". Whereas in reported judgment 2016 PTD (Trio.) 107 Qazi CNG Station, Gujrat and another v.
Directorate General of Intelligence and Investigation-FBR, Karachi and 02 others this Tribunal held that "statute can be amended by the Parliament and a notification through a notification not through any communication. In the absence of amendment of notification, clarification issued by the department could only be termed as opinion and it would not at all amend the notification". Assuming powers on the strength of letter of the Ministry of Law and Justice is palpably illegal beside fatal to the health of the case. Even otherwise, the letter of the Ministry of Law and Justice speaks about collection of Federal Excise Duty at import stage in the same manner and at the same time, as if it is a duty of customs payable under the Act, (IV of 1969) and for collection of the same the provision of Section 31A also apply . Reference of Section 7 of the Federal Excise Act, 2005 has also been given simply for clarification that for collection of import duty provision of STA is applicable. The emphasis in the O.M. is levy and collection. Therefore, to further elaborate and settling the issue to its logical conclusion, I add while referring to Section 6 of the STA and 148 of the ITO under which the Clearance Collectorates are empowered to collect the taxes on the imported goods as like custom duty. These sections least empowers the Officers of Customs including Respondent No. 2 to initiate adjudication / recovery proceeding for the short collected/paid, Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. For proceeding with these type of recoveries a show-cause notice has to be issued under the Provision of, Section 11 of the STA and Section 162(1) of the ITO, by the authority expressed therein i.e. Officer of Inland Revenue/Commissioner of Income Tax under sub Sections (3) and (4) of Section 11 of the STA and Section 162(1) of the ITO. In these sections neither Officer of Customs and Respondent No.2 figures anywhere. He assumed the power not vested with him under the provision of Sections 11 and 162(1) of the STA and ITO. Resultant, the Customs Collectorates does have powers to collect, Sales Tax and Income Tax as duty at import stage, conversely , to the plea that Customs is empowered to recover the short paid amount of sales tax and income tax at the import stage under Section 202 of the Act is based on mistaken, belief, infact the customs Collectorate could recover the amount of Sales Tax and Income Tax upon receipt of notice from the Officer of Inland Revenue and Commissioner of Income Tax in terms Section 48 of the STA and Section 140 of the ITO for recovery of the adjudged amount of Sales Tax and Income Tax after due process of law. Therefore, it is our conside red opinion that the Clearance Collectorates does have the authority to collect Sales Tax and Income Tax at import stage in the capacity of collecting agent and can recover escaped/short payment paid Custom Duty and Regulatory Duty levied on the imported goods under Section 18 of the Act under section 202 ibid., after due process of law, but have no powers to adjudicate the cases of short recovery of Sales Tax and Income Tax under sections 11 and 162(1) ibid. and this stood validated from reported/unreported judgments 2011 PTD (Trib.) 110 Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi , 2010 PTD (Trib.) 2086, Messrs Global Marketing Services and another v.
Model Customs Collectorate and another , SCRA No. 01/2010 Collector of Customs, Islamabad v. Global Marketing Services and another v. Model Customs Collectorate and another , 2004 PTD 801 Al-Haaj Industrial Corporation (Pvt.) Ltd., Peshawar v. Collector of Customs (Appraisement). C.P. No. D-216/2013 Messrs Lucky Cement Ltd. v. Federation of Pakistan and others , 2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others, 2015 PTD 702 Muhammad Measum and others v. FOP and 2 others , 2016 PTD (Trib.) 969 Asif Textile Trading v. Directorate General I&I-FBR , 2016 PTD (Trib.) 1008 Phillip Morris (Pakistan) Ltd., Karachi v. Additional Collector of Customs , 2016 PTD (Trib.) 2125 Al-Fajer Associates v. Directorate General of Intelligence and Investigations-FBR , Appeal No. K-1635/2014 Pepsi Cola Export Corporation, Karachi v. Directorate General of Post Clearance Audit and 02 others , Appeal No. K-1029/2016 Messrs M.R. Sons, Karachi v Directorate General of Intelligence and Investigations-FBR , Appeal No.K-1030/2016 Messrs Muhammad fin ran, Karachi v. Directorate General of Intelligence and Investigations-FBR , Appeal No.K-1343/2015 Messrs Rightway Trading Company , Karachi v. Deputy Collector of Customs, MCC of Appra isement-W est and 3 others , 2016 PM (Trib.) 2463 M/s. Zubair Wali Ahmed Zai Ltd. v. The Principal Appraiser , Directorate of Transit Trade and others and 2017 PTD (Trib.) 481 Singer Pakistan Ltd v. Collector of Customs and 2 others . The opinion formed by me also have the validation of the judgments reported at 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23 and in 2007 PTD 520 titled as Collector of Sales Tax and Federal Excise v. Messrs Qasim International Container Terminal Pakistan Ltd., wherein it has been held that "There is a clear distinction between the charging provision of Statute and the machinery part thereof. It is axiomatic that mode of mann er of recovery does not alter, the nature of tax nor a tax can be introduced or import by implication." In 2008 PTD 1973 Xen Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax, Faisalabad, for clarity of the Rule of Interpretation of Statute, golden principle was outlined in so many words reading as "That fiscal law is to be applied with full authority and its natural meaning--one has to look merely at what is clearly said and there is no room for any intendment--neither there is equity about a tax nor presumptions as to tax - nothing is to be read in, nothing is to be implied -- one can only look fairly at the language used" The Hon'ble Supreme Court of Pakistan in reported judgment 2006 SCMR 129 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others held that "If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the, objective of performing or doing of a thing in a manner other than provided by law would not be permitted--- each and every words appearing in a Section is to be given effect and no other word is to be rendered as redunda nt or surplus -- when the legislature required the doing of a thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred -- if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare taciturn"
14. I, therefore hold that the exercise of jurisdiction on this point by respondent No.2 is also without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of Order-in-Original are ab-initio void and as such coram non judice on this point also. Upon passing of assessment/clearance order under the provision of sections 80, 83 and Rules 438 and 442 of the Act/ Rules, the orders so passed became appealable and can be assailed before Collector of Customs (Appeals) under Section 193 of the Act and the respondent No. 1 is empowered under the said Section. If he had any reservation against the passed assessment orders, the appropriate course of action was to assail the said orders before the Collector of Customs Appeals. Which had not been done within the stipulated period and order so passed on 29.06.2015 by the competent authority defined in Section 2(a) in exercise of the powers vested upon him through serial No.30 of SRO 371(1)/2002 dated 15.06.2002 cannot be disturbed by any authority . To the contrary , the respondents through conduction of audit under section 26(2) an issuance of show-cause notice/passing of order-in-original in fact opted to reassess the GD under Section 80(3) in isolation without recourse to Section 80(2) of the Act and in the absence of misdeclaration in material particular in any aspect. Rendering the carried out entire exercise void and nullity to law .
15. For disturbing the passed assessment order mechanism have been provided in the provision of section 193(1) of the Act, i.e. filing of appeal by either respondent No. 1 or his subordinate before Collector of Customs Appeal.
Who upon receipt of which have to go through its facts and grounds and thereaft er if he think fit that in the case under adjudication correct duty and taxes has been either levied or short paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Act to the respondent (appell ant) as expressed in 3rd proviso to subsection (3)' of section 193 of the Act, and after receipt of reply to the said notice the Collector of Customs have to decide the appeal in the light of the issued show-cause notice and reply . In the instant case no appeal has been filed by the respondent No. 1 to this date despite mandated under law. Instead both assumed the powers under Section 195 of the Act and reopened a valid passed order under section 80 ibid. None of the respondents are empowered to reopen an order , hence both acted without power/jurisdiction, therefore, their action is without any lawful authority and as such ab-initio, null and void as held by Superior Judic ial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and others . It is added further that assessment order in the subject case was passed on 26.05.2015 and the appeal against which could had been filed by the respondent No.1 on or before 25.06.2015 but had not filed and the passed assessment order attained finality and became closed and past transaction and cannot be disturbed or reopened by any authority or court as held in reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue that "if the order has attained finality throu gh 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" and 2004 PTD 3020 , Glaxo Smith Kline Pakistan Ltd, Kara chi v. Collector of Customs, Sales Tax Central Excise, Karachi "that department could not re-agitate which had been decided against him --said order could be assailed in appeal or revisional proceedings, which in the present case were not initiated and therefore the same held the field and in the presence of earlier order another order contrary to the said earlier order could not be allowed hold the field for the simple reason that two contrary orders could not exists at one and a same time --- in the light of the settled law the initial assessment order attain finality by virtue of expiry of stipulated period expressed in subsection (2) and as such hold field and no subsequent order on these to be allowed to be pile upon these as this is not permitted beside tantamount to double jeopardy barred under Article 13 of Constitution of Islamic Republic of Pakistan.
16. I have also noted with concern that the respondent No.1 implicated and the respondent No. 2 charged the appellant, for mis-declaration under the provision of Section 32 of the Act merely on the basis of assumption/presumption that the appellant transmitted GD while claiming exemption under SRO 1261(1)/2007 dated 31.12.2007 for the imported fruit juices other than Orange and Pineapple flavored falling under PCT heading 2009.2100, 2009.2900, 2009.6100, 2900.7100, 2009.8100 and 2009.9000, which resulted in short payment/evasion of taxes. I am unable to buy the said line of arguments as examination was conducted by the Customs Officials without any influence of the appellant, wherein, he confirmed that declaration of the GD based on uploaded invoice/B/L, wherein the actual flavor of the imported juices have been clearly specified, images of the juices cans were also uploaded in the reservoir of the GD. On the strength of that and the declaration/uploaded documents founing integral part of the declaration as defined in Section 2(kka ) the assessing officer passed assessment order under sections 80 and 83 and Rules 438 and 442 of the Act/Rules rest with the sole and exclusive domain of the Customs Officer listed at Serial Nos.30 and 33 of the SRO 371(1)/2002 dated 15.06.2002 independently without any influence while accepting the declaration as true and correct and so the claimed exemption. If it is presumed as stated in the show-cause notice/order-in-original that the alleged clearance of the goods imported by appellant on his own without fulfillment of codal formalities, i.e. absurd and cannot be digested, no consignment could be allowed cleara nce unless examined and passing of assessment order , then that could had not been possible unless these officials were having hands in gloves with the appellant. Meaning thereby that they are standing on the same pedestal. Ironically , no charges have been levelled under Section 32(2) against those Officials, as of appellant. This act of the respondents proves that the appellant had been met out with partial treatment, which is tantamount to discr imination not permitted under Article 25 of the Constitution of Islamic Republic of Pakistan, and the law laid down by the Superior Judicial Fora in reported judgment 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts have observed that "there exists no power to target incidence of tax in such a way that similarly placed person be dealt not only this similarly , but discriminatingly". Whereas, in reported judgment 2005 SCMR 492 the Hon'ble Supreme Court held that "A facility allowed to someone and denied to other is discrimination". The Apex Court further held in reported judgment 2010 SCMR 431 that "Doctrine of equality , as contained in Art. 25 of the Constitution, enshrine golden rules of Islam and states that every citizen, no matter how high so ever, must be accorded equal treatment with similarly situated persons--- State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class--- In fact all legislations involve some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not--- What however , is prohibited under principle of reasonable classification, is legislation flavoring some within a class and unduly burdening others--- Basic rule for exercise of such discretion and reasonable classification is that all persons placed in similar circumstanc es must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not of fend spirit of Art.25 of the Constitution."
17. 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 cancel contravention report show-cause notice framed by respondent No.1/issued by respondent No.2 and set aside the connected order passed by him being illegal, void and ab-initio. Appeal is accordingly allowed with no order as to cost.