SYED TANVIR AHMAD, MEMBER TECHNICAL-III .----This Judgement disposes of Customs Appeal No.K- 447/2018 filed by the Appellant against Order-in-Appeal No.1063/2018 dated 03.04.2018 passed by the Collector of Customs (Appeals), Karachi.
2. Briefly one Mr. Ismail Khan, resident of Lower Dir, imported one used Suzuki Carry van bearing chassis No.DA63T -447527, vide IGM No.31 dated 22.01.2012, Index No.587 from Japan @ Yen 80000/-and filed Goods Declaration vide Machine No.HC-84241 dated '02.02.2012 for clearance thereof under PCT heading 8703.2199 chargeable to Customs duty @ 50% and other taxes through their customs agent M/s. Khuram Brothers (CHAL No.618). The vehicle was cleared under the declared PCT 8703 under the fixed duty / taxes regime notified vide SRO 577(1)/2005 dated 06.05.2005.
3. Post import scrutiny of the manufacturer's dkta revealed that the impugned vehicle is designed fir transport of goods falling under PCT 8704.2190 chargeable to statutory rate of Customs Duty @ 60% and other taxes and is not covered under the ambit of SRO 577(1)/2005 dated 05.06.2005 therefore, the clearing agent in connivance with the importer mis-declared the PCT heading to deprive the government of its legitimate revenue amounting to Rs.
42146 and contravened the provisions of sections 32 (1, 2 and 3), 79 and 80 of the Customs Act, 1969 punishable under clauses 9 and 14 of Section 156(1) of the Customs Act, 1969.
4. The adjudicating officer vide Order-in-O riginal No.109/2012 dated 15.11.2012, held that the charges against the Appellants are established. The operative part of the impugned order reads as under:- "I have gone through the available record and given due consideration to the facts and written / verbal submissions made therein. It is crystal clear that the importer and the clearing agent got the vehicle cleared by wrongly availing benefit of SRO 577(I)/2005. The clearing agent letter speaks about the processing of the GD by the group but skirts around the actual charge in the show-cause notice, i.e. mis-declaration of PCT by the clearing agent and obtaining clearance under wrong and irrelevant SRO. The short realization of government revenue is thus recoverable under Section 32(3) of the Customs Act, 1969, and the relevant provisions of the, Sales Tax Act, 1990 and Section 148 of Income Tax Ordinance, 2001. Accordingly , the demand is enforced and the importer and clearing agent are hereby directed to make the payment of short recovered amount of Rs.42146/- within ten days of issuance of this order , failing which recovery proceedings under section 202 of the Customs Act, 1969 read with Customs Recovery and Licensing Rules notified vide SRO 450(1)/2001 dated 18.06.2001 shall be initiated against the importers and the clearing agent".
5. On appeal filed by the Appellant against the above Order , the Collector of Customs (Appeals), Karachi vide Orders-in-Appeal No.1063/2018 dated 03.04.2018 and retained the order of adjudicating authority .
6. Feeling aggrieved and dissatisfied with the above Order-in-Appeal, the Appellant filed an appeal before this Tribunal on the grounds that the impugned show-cause notice dated 31.08.2012 as mentioned in Order-in-Original No. 109/2012 dated 15.11.2012 has not been served on the appellant as per the mandated requirement of section 215 of the Customs Act, 1969. Prior to proceeding for adjudication either properly or summarily , it is pre-requisite to issue and serve statutory show-cause notice under section 180 of the Customs Act, 1969, enabling the person to know the levelled charges and the applicable contravened provision of the Act and the attracted penal clauses. The adjudicating authority 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 laying stress on the same date the FBR separately renewed the proposition of law and natural justice vide letter C.No. 730- M(L)/2002. Sub-Para (iii) of Para 2 is relev ant in this regard, which read as " show-cause notices should contain 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 Customs Act, 1969. Even otherwise in cases where request for summary adjudication is made, in the words of Customs, Excise and Sales Tax Appellate Tribunal, Peshawar recorded in his judgment reported as 2004 PTD (T rib.) 1324 it was stated that: - "It is not understood as to under what law such right, which is primarily the duty of the Adjudicating Officer under Section 180 of the Customs Act, 1969 to issue show-cause notice before confiscation of goods, or imposition of penalty , could be waived of by the owner of the goods or person, for imposition of penalty on him. Section 180 stipulates that three mandatory conditions are to be fulfilled step by step in chronological order and not simultaneously by the Adjudicating Officer before confiscation of goods or imposit ion of penalty . The provisions of section 180 of the Customs Act, 1969 does nowhere provide for the waiver of show-cause notice on the part of any person who has limited choice under it. The provisions of Section 180 of the Customs Act, 1969 do not absolve the Adjudicating Officer of discharging his responsibility to comply with the given charter ."
7 Issuance/serving of show-cause notice is a mandatory requirement for the adjudicating officers while adjudicating issues before them. This is also in violation of the principle of natural justice as held by Superior Courts in umpteenth reported judgments that:- 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 prescribe d by law or not at all as per maxim "Expression Facit Cessare taciturn" as observed by the Apex Court in their judgments reported as 1964 SC 536, 2003 SCMR 1505 and 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 Honourable 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 issued with a show-cause notice and the right of being personally heard are inseparable and inalienable rights of the defendant and cannot be denied to the person concerned under any circumstances. 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 1994 SCMR 2232 . As observed by the Honourable Supreme Court in the judgment M.D. The Bank of Punjab v. Syed Shah zad 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 .
8. The appellants further stated that in view of the provision of Customs Act, 1969 and above judgments of the Superior Courts 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 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 period, 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. The appeal before the respondent No. 2 was not barred by time as Order has been served on the Appellant's consultant by the Assistant Collector of Customs Licensing under cove ring letter dated 15.12.2017 as per the contemplation of section 215 of the Customs Act, 1969 as evident from the fact that the office of respondent No. 2 raised no objection whatsoever on the appeal as evident from the annexe d copy, containing stamp dated 15.01.2018, confirming that the same has been admitted for regular hearing due to the fact reason that the order has been passed by the respondent No. 2 at the back of appellant without compliance of the mandated requirement of law of issuance of show-cause notice and in alike cases the respond ent No. 2 himself dispense with the delay in filing appeal in terms of the proviso of Section 193(1) of the Customs Act, 1969 and passed order-in- appeal against the filed appeals, for ready reference reliance is placed on few of the appeals, which after order of respondent reached the Tribunal and were decided on merit. The respondent No. 2 ignored the limitation in the referred in above cases which were just and in consonance with the Article 10A of the Constitution of Islamic Republic of Pakistan and the law laid down by the ITAPTP in reported judgment 2010 PTD (Trib.) 1491 , wherein it has been held that "the Appellate authority should have examined the reasons of delay sympathetically when admittedly the registered person was proceeded ex-parte during the adjudication proceeding --- even otherwise the refund if finally determined, is the money of the registered person, which should not be denied to him on technicalities. In reported judgment 2010 PTD (Trib.) 1359 , it has been held that the "Collector was bound to have condoned such delay despite clear law on the subject and Sales Tax General Order 8 of 2009 issued by the Federal Board of Revenue in terms of power conferred under section 74 of the Sales Tax Act, 1990 (synonymous provision is available in section 224 of the Customs Act, 1969.
9. It is also of paramount importance to rely on reported judgment 2002 PTD 549 Laser Praxis Depilex Clinic, Lahore v. Customs, Central Excise and Sales Tax Appellate Tribunal , wherein their lordship held that the delay in appeal has to be condoned and appeal filed by the appellant before the Lahore High Court against an order of the Tribunal wherein appeal was rejected as time barred was allowed vide order dated 01.11.2001 while holding in paras 6 to 1 1 that:
6. We have another reason to hold for a liberal interpretation of the aforesaid provision allowing a discretion to the Tribunal to condone the delay . In matter of civil nature the basic purpose to curtail litigation by law of the limitation is to bring the proceeding to a foreseeable and to cloth them with finality so that people may feel a crew in their rights to their person and property when the prescribed limitation had run out. In revenue matter on the other hand a demand once created and duly conveye d to the subject is not condition to a fix period of recovery nor would it automatically lapse if not recovered within a certain period. A demand created in accordance with the law is sword which keeps on hanging on the head of a citizen till the liability discharge. The revenue though an equal party before the Tribunal is certainly at an advantageous position viz a viz the assessee . Therefore, it is necessary that the prescribed limit in the statute and discretion given therein to the T ribunal should be exercised objectively .
7. Another reason for our lenient view of the delay is also peculiar to the tax proceeding when compared with other civil or criminal litigation. It is the represe ntation on behalf of a citizen. Generally in proceeding before the court of general jurisdiction it is lawyers or Advocates, who represent the parties while in tax proceeding particularly those under Sales Tax Act, the representation is allowed to be made by authorized representative; According to section 52 of the Act a person required to appear before the Appellate Tribunal or an officer of Sales tax in connection with any proceedings under the Act can authorized any person to represent him or appear on his behalf. If such authorized person representative is not trained in law or a similar branch of knowledge, the yardstick applied in cases of lawyers and advocates in the matter of delay should differently be different. In cases involving pure question of law and legal and legal cases it would not be realistic to expect a common man or a representative of an assessee to have the same legal accuman as those were particularly trained in law or qualified accountants. We have precedents from Superior Court, even in case of lawyers from Mofussil who were treated leniently when compared with their fraternity engaged in practice at the principal seat of Superior Courts. A full bench of Allahabad High Court was considering an application under section 5 of the Limitation Act for condonation of delay in Re: Sahib Dayal and another v. Jugan Nath Parsad (636 All 44 Xitv) decided on February 27, 1922. The Appellant before their lordship did not file a copy of the order of the Court of 1st instance which was mandatory . After an objection by the office the required copy was filed. However , in the meantime the prescribed limitation had already gone in the application under section 5 of the Limitation Act, it was pleaded by the appellant that their Wakil conducting the case at District Courts has advised them that filing of order of the original court was not necessary .
During the arguments Justice Stuward suggested deviation from their earlier decisions and proposed following of the English precedence after mentioning the case re: Hasly 1894 1 Q.B. 742. Sir Grimwood Mears C.J. while speaking for the Bench however preferred following of the earlier practice of the court and to allow the application considering the mistake of the counsel to be a "sufficient cause for late filing of the copies. The reason that persuaded the Full Bench to allow the request for condition as a policy being "an honest mistake even though negligence one ought not in the present state of the profession in the District be allowed to operate to the prejudice of the clients.
8. To condone or not to condone a delay certainly rest upon the consideration of sufficient cause" which actually means the peculiar circumstances of that very case. Every case needs to be. cons idered keeping in view the facts prevailing therein. There' cannot therefore, be a precised definition of "sufficient cause" nor there can possibly be laid down the exact para-meters which could fit in the situation in every case an attempt to define "sufficient cause" would amount to curtail judicial powers and discretion with the legislature has left open and unfettered in the forum which in this case is Tribunal. Some General Principals have, however , being laid down by the Superior Court in 636 -All 44 (supra.) Justice Prama Charam Banerji though agreeing with the conclusion reached upon by his Peers recorded a separate note with these remarks: what constitute sufficient cause cannot be laid down by hard and fast rule. The sufficient cause must be determined on a reference to the circumstances of each case in my opinion the expression "sufficient cause" should be liberally construed so as to advance substantial justice". These findings are being followed by the Courts in both India as well as Pakistan till date.
9: Although there are no specific provision in Sales Tax Act, equivalent to section 14 of the Limitation Act which provides for exclusion of time taken in proceedings bona fide in courts without jurisdiction yet the Tribunal was legally competent to consider the submission in the context of the "sufficient cause" being placed before them. The case law relied upon by the learned couns el for the petitioner before the tribunal and then before as supported their claim as a general proposition on the other hand the aforesaid judgment relied upon by the learned counsel for the revenue are clearly distinguishable again for the simple reason that in revenue matters a prayer for condonation by an assessee/citizen must be considered objectively .
10 : In Re: Controller Land Acquisition v. Mst. Katiji and others [1987] 56 Tax 130 (S. C. India), Their Lordship laid down general principal for adherence while deciding application for condonation under section 5 of the Limitation Act. These principal in our opinion must be kept in mind by every judicial or quasi judicial forum while dealing with the questions of condonation of delay .
11: M.P . Thakkar , J. Speaking for the Court favoured adjusted oriented approach by finding that: i) A litigant does not stands to benefit by lodging an appeal late. ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very, threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happened is that a cause would be decided on merits after hearing the parties. iii) "Every day's delay must be explained" does not means that a pedantic approach should be made. Why not every hour's delay , every second's delay . The doctrine must be applied in a rational common sense and pragmatic manner . iv) When substantial justice and technic al consideration are pitted against each other , the cause of substantial justice reserved to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay . v) There is no presumption that delay is occasioned deliberately , or on account of culpable negligence, or on account of mala fides a litigant does not stand to benefit by resorting to delay in fact he runs a serious risk. vi) It must be grasped that judiciary is respected not on account of its powers to legalized un-justice on technical ground but because it is capable of removing un-justice and is expected to do so.
10. The appellant contended that impugned order of the respondent No. 2 is not only bad in law but also discriminatory and violative of the principle of natural justice/mandatory provision of law due to the reason that he considered the delayed filed appeal in order and ignored the limitation as per the provision of Section 193(1) of the Customs Act, 1969 as discussed above in para (ii) and singled out the appellant in similar nature of appeals, despite standing on the same pedestal. This act tantamount to giving a differential treatment. Hence, manifestly prejudice, discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan and this hold strength from the reported judgment 2002 PTD 976 of High Court of Sindh, wherein it has been held that "vacating the show-cause notice in one case and taking action against another person in similar situation, amounts to discrimination which is hit by Article 25". In reported judgment 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts "there exist 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 some one 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 highsoever , 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 princ iple of reasonable classification, is legislation favouring some within a class and unduly burdening others---Basic rule for exercise of such discretion and reasonable classification is that all persons laced in similar circumstances 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 offend spirit of Art. 25 of the Constitution."
11. Upon perusal of the order-in-original , it can be observed that the respondent No. 1 held that the short paid amount is due to inadvertence, error, or mis-construction falling within the ambit of Section 32(3) of Customs Act, 1969 and as such recoverable. The appellant is amazed on the finding of the respondent No. 1 as with the said opinion, the case in question fell outside the ambit of his jurisdiction/powers as the power to adjudicate the cases falling within the ambit of section 32(3) falls within the powers of Principal Appraiser as notified in SRO 371(1)/2002 dated 15.06.2002. Meaning thereby that the said powers has to be exclusively exercise by the Principal Appraiser and by none else. It is settled principal of law a qausi-judicial authority has to exercise the powers vested upon him only and this has been time and again held by FBR and Superior Judicial Fora. To the contrary , in the instant case respondents exercise the powers despite no authority , rendering the show cause notice and the subsequent order- in-original without power/jurisdiction henc e void, ab-initio and as such coram non judice and not enforceable under law. Reference is placed to the reported judgment Sales Tax Appeal No. 444/03, S.T.A. 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636.
The fact of matter is that appellant filed Goods Declaration under section 79(1) of the Customs Act, 1969 annexed with import documents received by him from importer . Which was processed by the nominated Appraiser/Principal Appraiser and examination was conducted without any influence of the appellant with the assistance of terminal operator as contemplated in Section 198 of the Act. In this whole procedure appe llant has no access. Thereafter , on the strength of which the competent authority passed assessment /clearance order under sections 80 and 83 in the capacity of authority defined in section 2(a) of the Act in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002, consequent to which appellant client obtained delivery from the terminal. In the whole exercise appellant has no role to play, charging him for the negligence of Customs Official is not even mala fide beside bad in law and as such of no legal effect. That as deliberated above in fact appellant in the capacity of clearing agent has no part to play. The entire transaction is between exporter/importer and the customs. He only provides services to the exporter/importer on very nominal charges and extends co-operation to the customs officials for carrying out their job. To be most precise, a clearing agent act as a post office or transit station between these two but this assistance is not applicable in the clearance obtained under the regime of "WeBOC". In support of the above submission, it is felt appropriate to place reliance on multiple judgments issued by the Hon'ble Customs Appellate Tribunal in regards to the conduct and commission of the clearing agent, reference is placed to few of those cases titled as Messrs Shoaib Enterprises, Karachi and Sakro Corporation, Karachi, wherein In Order- in-Appeals Nos. K-1833/01 dated 19.01.2002 and K-538/2003 (K-2) dated 25.10.2003, it has been held that provisions of section 209 of the Customs Act, 1969 provide immunity and limited liability against the agent and an agent cannot be charged for mis-declarati on under section 32 of the Customs Act, 1969 if he filed documents under the provisions of Customs Act, 1969 in accordance with the export documents and further held that the action taken by the customs of charging agent and thereafter levelling penalty without any fault or default on his part is not only unfair but also illegal. The Lahore High Court in the case of Messrs Ports Ways Custom House Agent and another's v. Collector of Customs and another's reported at 2002 YLR 2651 held that: The imposition of penalty on the Clearing Agent / appellant No.1 was all the more unjustified. To hold the clearing agent liable for the act of commissions and omissions on the part of the importer will require a clear finding based upon legally acceptable evidence of his being an active and conscious pqty to the manipulation. In normal course of his business, a Clearing Agent, files a bill based upon the document and information provided by the importer .
He cannot be presumed to be a privy to any illegal arrangement, which the importer may have coined or had intended in his mind. For that purpose some evidence of his direct involvement will have to be brought on record.
Particularly when it is not shown that the Clearing Agent was directly or indirectly a beneficiary of invasion of taxes.
In the present case no attempt whatsoever was ever made to bring home guilt to the Clearing Agent. The appeal is accepted to the extend of Clearing Agent.
12. Arguments heard and record perused. The importer in this case imported Suzuki carry van and customs agent Khurram Brothers filed GD but later found in audit that it was assessed in wrong PCT classification and attracted higher rate of duty and demand Rs. 42146/-as differential amount. The short paid amount of Rs. 42146/- is recoverable from the importer . This case was processed under yellow channel i.e., proper appraisement was done and finalized by the staff. Assessment was made by the department. The appellant pointed out that the customs agent cannot be held responsible in this case and amount should be recovered from the importer as the order passed by respondent No. 3, it has been observed that the Collector Appeal rejected the appeal by considering it barred by limitation under the provision of 193(1) of the Custom Act, 1969, while doing so he ignored the vital fact that appellant was not available on the address mentioned in the impugned order and has shifted to a new premises, intimation of which has been given by him to the Licensing Authority vide letter dated 26.07.201(sic), despite return of the order undelivered, same was not re-dispatched on the new address. Upon having knowledge he requested for dispatch of order but of no avail. Consequent to which he availed consultant, who made multiple request to the Deputy Collector Licensing as well as Deputy Collector , Group-VI, MCC of Appraisement-W est, in compliance of which the impugned order was ultimately supplied to the consultant, by respondent No. 1 through covering letter 15-12-2017 acknowledge d on 17.12.2017, on the strength of which appeal was filed before respondent No. 2 on 15.01.2018 i.e. well within the stipulated period of 30 days. Hence, the appeal filed. before the respondent No. 2 was within time and competent to be decided on merit as against summarily rejecting being barred by time despite not as date of service is reckoned from the date of receipt/acknowledgement as per the contemplation of section 215 of the Customs Act, 1969.
13. Reverting back to the merit of the case, the allegation against the appellant is that he filed Goods Declaration under the provision of Section 79(1) of the Customs Act, 1969 for obtaining clearance of the imported Suzuki Carry Mr. Khaliq of Dir, under PCT heading 8703.2199, which was numbered KAPR-HC-49253 dated 18.11.201 1, in accordance with the laid down criteria for the clearance of the vehicle, the goods Declaration was referred to examination, wherein declaration was confirmed, on the strength of which the competent authority defined in Section 2(a) passed assessment order under Section 80 of the Customs Act, 1969 which lays inbuilt duty on him to check all the aspects of the imported vehicle i.e. description, quantity , value and PCT heading evident from its expression reading as:- "Section 80- Checking of goods declaration by the Customs-- (1) on the receipt of goods declaration under section 79, an officer of customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration assessment, and in case of the customs computerized system payment of duty, taxes and other charges thereon."
14. After realization of leviable duty and taxes on the strength of assessment order passed by the competent authority the vehicle were out of charged and the importer obtained the delivery , with this the job of appellant stands accomplished. Subsequently , the respondent No. 1 opined that the vehicle so imported for which appellant filed Goods Declaration in fact falls under PCT heading 8704.2190 on which benefit of SRO 577(1)/2005 was not available and was granted inadvertently . In order to make good short levied duty and taxes, opted to issue show- cause notice to the appellant having no warrant of law as show-cause notice without any exception has to be issued to the importer . The responden t No.1 and his subordinates failed to realize at the time of passing assessment/clearance order under the provision of Sections 80 and 83 of the Customs Act, 1969. Upon examination of the import documents, I am unable to find any wrong doing on the part of the appellant, instead the entire responsibilities on the part of the respondent No. 1 and his subordinates. No occasion was available with the respondent No. 1 to either issue show-cause notice or pass order-in-original to/against the appellant for the negligence and lapse committed by him and its subordinates. None of the invoked provisions of the respective section incorporated in the show-cause notice are applicable on the appellant as no mis-declaration in material particular is visible from any of the documents , whereas, the conducting of examination and passing of assessment order has to be performed by the respective officer under the provisions of respective Sections 198 and 80 of the Customs Act, 1969 independently without any influence.
15. Even otherwise the respondent No. 1 misconstrued ,the specified duty of the appellant under the Licensing Rules and so the provision of Section 209 of the Customs Act, 1969 which lays limited liabilities on him, evident from the proviso of subsection (3), which with clarity expresses that " where any duty is not levied or is short levied or erroneously refunded on account of any reason other than wilful act, negligence or default of the agent, such duty shall not be recovered from the agen t". The order is completely silent in regard s to either willful act, negligence or default on the part of appellant. Hence , he cannot be saddled with the recovery of short levied/paid amount due to lapse on the part of the respondent No. 1 and his subordinates and appellant has been dragged needlessly in litigation in the absence of warrant of law .
16. In the light of above deliberation and adhering the ratio decidendi set-forth by the judicial fora, I, annul the show-cause notice and set aside the orders passed by the forum below as ab-initio, illegal, void and such is of no legal ef fect Appeal is allowed as no order to cost.