JAHANZAIB WAHLAH, MEMBER JUDICIAL-III.---- Through this common order , I intend to dispose off 08 Appeals bearing Nos.638- 645/2019 filed under Section 194A(1) of the Customs Act, 1969 (Act) against the Orders-in- Appeals Nos.1867-1874/2019 dated 03.05.2019 passed by Collector of Customs (Appeals) by maintaining the re- assessments orders dated 11.10.2018 and 18.10.2018 passed by the Assessing Officer, Post Release Verification (PRV), MCC of Appraisement East, Custom House, Karachi in Goods Declaration (GD) Nos.KAPE-HC-187235- 26042018, KAPE-HC-1056-17072018, KAPE-HC-1 1056-17072018, KAPE-12506-17072017, KAPE-HC-20851- 23052018, KAPE-HC-9750-1 1072018, KAPE-HC-8356-13072018, KAPE-HC-207953-30052018 and 203851- 23052018 respectively .
2. Since, these appeals are based on similar facts and questions of law, therefore, it is needless to reproduce facts of each case separately . Hence, for reference the facts of Appeal No.K-638/2019 is taken into consideration for decision, which are the Appellant imported a consignment of 23500/kgs 100% Polyester Close Virgin Spun Yarn 30/S against confirmed letter of credit from China. Upon receipt of shipping document he transmitted Good Declaration (GD) under section 79(I) of the Act and Rule 433 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 (Rules) and deposited upfront duty and taxes of Rs.396,752/- with the MCC of Appraisement East.
Consequent to which GD was numbere d as KAPE-HC-187235 dated 26.04.2018. Upon receipt of GD on his workstation, the assessing officer passed assessment order with the application of alien value, against which appellant filed 1st review under Rule 441 before Principal Appraiser , who agreed with the contention of the appellant and accepted the declared value and transmitted the GD to the Deputy Collector , Group-IV (respondent No.1) for assent, who on 10.05.2018 acceded the same and passed assessment order dated 10.05.2018 under the provision of section 80 and Rule 438 of the Act/Rules, while adducing remarks in assessment note reading as "Upheld the assessment. Cases has been referred to Valuation department regarding clarification, whether polyester spun yarn close virgin is included in Valuation Ruling (VR) or not. Importer has under taken to pay the additional duty if clarification against their declaration". Consequent to which the inbuilt authority of the WeBOC passed clearance order under Section 83 and Rule 442 ibid and the appellant obtained delivery of the goods from the Terminal. Subsequent after lapse of more than about 5 months, respondent No.2 passed reassessment order dated 11.10.2018 under the provision of Section 80(3) of the Act through which he created recovery of Rs.238032/- by amending the unit value to US$ 1.69 as against existing assessed US$ 1.10/kg vide assessment order dated 10.05.2018 passed under Section 80(1), while adducing remarks in the assess ment note reading as "IN THE LIGHT OF ORDERS AT SERIAL# 3 OF N/S IN FILE# SI/MISC/305/2018-IV -East; the GD is assessed from the information of VR# 1276/2018 BEING SPUN YARN". The appellant challenged the vires of the reassessment order before respondent No.3 on 09.11.2018 vide Appeal No.Cus-/ 2971/2018/A-East, who rejected it vide order dated 03.05.2019 while observing in paras 3 to 6 reading as: "I have examined the case record and arguments of both the sides and have given careful consideration to the facts of the case the departmental representative has stated that certain GDs cleared through green channel, imported "Polyester Spun Yarn virgin grade" has declared the value at much lower side, although there was Valuation Ruling No.1276/2018 dated 26.03.2018. Hence, the Collectorate has conducted PRV and re-assessed the GDs as per V aluation Ruling and generated recovery .
The appellant has argued that Collectorate cannot conduct reassessment notice under section 26 of the Customs Act, 1969 is given. And this is the job of PCA, hence, they should have adopted the proper procedure.
The departmental representative has submitted that complaint forwarded by FBR and instruction from Chief Collector , to conduct the audit. Moreover , the importer were duly called by notices dated 24.08.2018 to explain their position.
In view of this, it is concluded that department has rightly reassess the goods and empowered by law. The appeal is therefore found without merit and is dismissed"
3. The appellants filed the appeals on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the cases strictly in accordance with those. No cross objection under Section 194A(4) of the Act has been filed within the stipulated period of 30 days or not even to date by the respondent No.1 . However , the representative of the respondent No.1 vehemently defended the passed reassessm ent orders and orders-in-appeal passed by respondents Nos. 2 and 3 respectively and prayed for maintenance of those, irrespective of apparent deficiencies /illegality .
4. Rival parties heard and case records perused and so the relied upon citations. Section 3DD of the Act has been framed and inserted by the legislature in the Act through which Directorate General of Post Clearance Audit (DGPCA) has been established and its officers have been delegated powers through SRO 500(1)/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 forward that to the importer for clarification, if the reply fail to settle the issue, frames contravention report and forward it to the Collector of Customs of Clearance Collectorate who onward forward to the respective Collectorate of Customs Adjudication for issuance 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 Collector , of Customs, MCC of Appraisement East in parallel to DGPCA established a cell/section namely PRV in the absence of availability of enabling provision in the Act, empowering him, to form/establish the said cell, when he is not empowered to form any section or cell on his own, similarly not empowered to delegate powers for functioning to the officers of the said cell/section for conducting audit, even for safe guarding of the interest of Government, proper mechanism for the said purpose is available i.e. DGPCA, who are empowered under law to proceed in the matter . Therefore, any action taken should and ought to be within the devised frame work, not on the basis of personal understanding/opinion having no warrant of law. The respondent No.2 being non entity 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.2 nor his higher 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 through SRO 500(1)/2009 dated 13.06.2009 redundant. Additionally , the respondent No.2/sup eriors are also not appointed / designated as an "Officer of Inland Revenue" under Section 30 of the Sales Tax Act, 1990 (STA) and Section 228 of the Income Tax Ordinance, 2001 (ITO). Resultant, are not empowered to conduct audit in the matter of Sales/Income Tax under the provision of Section 25 of the STA and Section 177 of the ITO. Hence, respondent No.2 acted without power/jurisdiction, in conduction of audit of even sales tax and income tax as evident from the contents of reassessment sheet forming part of reassessment order dated 11.10.2018, rendering the act of conduction of audit and passing of reassessment order ab-initio, null, void. Carrying out such type of exercise is not permitted under law, if it is left to be perpe tuated, 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 of the GDs of the appellants under Section 26(2) of the Act, Section 25 of the STA and Section 177 of the ITO by the respondent No.2, for determination of short levied /collected amount of Custom duties, Sales Tax, Additional Sales Tax and Income Tax on the imported .goods is without lawful authority/jurisdiction. Hence, ab-initio null and void and as such corm-non-judice. The superstructure built thereupon ought to be crumble down no matter how strong it may be.
5. The respondent No.3, contrary to the observation made by me in para supra endorsed the act of conduction of audit and passing of reassessment order by respondent No.2 but fell short to spell out in the order the nature and content of the complaint forwarded by the FBR and the instruction of the Chief Collector for conduction of audit and the enabling provision of the Act, empowering the FBR and the Chief Collector to act contrary to the provision of the Act and those are deemed to be valid and prevailed over the statute and rules and regulation framed therein under , which was mandated for giving credence to his formed opinion/observation and. validation to the impugned order . In the absence of availability of any enabling provision in the Act and author ity nullifying the infield orders of the superior judicial fora in 1993 SCMR 1232 in the case of Central Insurance. Co., v. Central Board of Revenue the Hon'ble Supreme Court of Pakistan held that "Board's view as to the interpretation of law do not have the force of law and the exception would be, where a fiscal statute is involved, that should be implemented with strict impartiality" and 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".
Hence, the formed opinion by the respondent No.3 in paras 5 and 6 of the order fails the test of judicial scrutiny and as such are declared to be ab-initio, null and void.
6. It is now a legal fiction that the consignment which has undergone the process of passing assessment order under the provision of Section 80 and Rule 438 of the Act/Rules for levy of duty and taxes, which were paid and thereafter valid clearance order dated 10.05.2018 as contemplated in Section 83 and Rule 442 ibid has been passed by the competent authority in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002. Such order is an appealable order and can't be disturbed by any other authority including respondent No.2 or his superior with the exception of preferring an appeal under the provision of Section 193 of the Act as was/is invariably done by an importer , in case he felt the assessment order so passed is nullity to the fact/law .
Similarly , if the respondent No.2/superior were of the view in the instant case of the appellant proper assessment has not been carried out, the only optio n left with them to adopt the Mechanis m available in the Act, for the reopening of the impugned assessment order by filing an appeal before the Collector of Customs, Appeals under the provision of Section 193 of the Act either by him directly or through Superior in which they should had incorporated all of their apprehensions, opinions/findings, including contravening provisions of the Act and so the applicable penal clauses. Upon receipt of that the Collector of Customs, Appeal have to go through the facts and grounds of that, thereafter if he think fit that in the case under appeal correct duty and taxes have not been either levied or paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Act as enunciated in 3rd proviso of Section 193A to the respondent (importer/appellant) and after receipt of reply to the said notice, the Collector of Customs has to decide the appeal in the light of the issued show-cause notice and reply . In the instant case no appeal has been filed either by the respondent No.2 or his superior despite mandated under law, instead respondent No.2 assumed the powers under Section 195 of the Act and reopened valid assessment/clearance orders dated 10.05 .2018 passed under the provision of sections 80, 83 and Rules 438 and 442 of the Act/Rules. Neither respondent No.2 nor his superior are empowered to reopen valid assessment order passed by the authority defined in Section 2(a) of the Act, in exercise of powers vested upon him through SRO 371(I)/2002 dated 15.06.2002. All acted without power/jurisdiction, hence his action deems to be without any lawful authority and as such ab-initio, null and IA void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. v. FOP and others , wherein their lordship of High Court opined that "department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeals)--- 1st order -in-original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector . Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority . Impugned order was set-aside and Constitution Petition was allowed." The CPLA No.105-K of 2014 filed by Collector of Customs and others against the order of the High Court has been dismissed by the Hon'ble Supreme Court of Pakistan while refusing leave to appeal.
Whereas, the High Court of Balochistan in 2019 PTD 1712 titled as Collector of Customs, MCC, Quetta v. Al- Habib Enterprises and Engineering and others , while dismissing the SCRA of the department held that "after assessment of leviable duty and taxes under section 80 of Customs Act, 1969 and payment thereof and after clearing the vehicle under Section 83 Customs Act, 1969, the available remedy of filing appeal under section 193 of the Customs Act, 1969 was not availed by the concerned officials of the Collectorate of Customs, Additional Collector of Customs, (Adjudication) had no jurisdiction under the provision of Customs Act, 1969 to issue show- cause notice and to pass order -in-original. No question of law having arisen out of the impugned of the judgment passed by Appellate Tribunal warranting interference by High Court under Section 196, Customs Act, 1969.
Reference was dismissed in circumstances."
7. For determination of validity of reassessment order , it is beneficial to reproduce Section 80(2)&(3) of the Act:
(2) An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of the Customs;
(3) if during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment, the goods, shall, without prejudiced to any other action which may be taken under this Act be reassessed to duty.
Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), unless subsection (2) is not complied in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re-assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in Section (2) ibid. Upon receipt of documents or the information so transmitted/submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessment. Upon perusal of the import documents, examination report and assessment order by appellant/passed by respondent No.1, it has been observed that description and quantity are the same as declared, nothing contrary , can be construed, even no notice was forwarded to the appellant dated 24.08.2018, which respondent No.3 inscribed in para 5 of the order , acknowledgement of which have been categorically denied by the appellants during the course of hearing, the representative of the respondent failed to place on record copy of the impugned notice, confirming that no notices whatsoever were served on the appellants. Moreover , no visible misdeclaration/misstatement in any aspec t were made by the appellants in materia l particular nor any illegality has been committed by the respondent No. 1. Hence, no re-assessment was warranted under Section 80(3) of the Act.
Even otherwise the remarks of the respondent No 2 speaks volumes about playing havoc with the provision of Section 80(3) of the Act , reading as "In the light of orders at serial # 3 of n/s in file # SI/Misc/305/2018-IV -East ; the GD is assessed from the information of VR# 1276/2018 being spun yarn." I fail to digest that from where the Board /Chief Collector derived powers, for issuing orders to the field formation to pass reassessment order under the provision of Section 80(3) of the Act, desp ite figuring nowhere in the provision of Sections 25 and 80 of the Act and SRO 371(1)/2002 dated 15.06.2002 and Sections 179 ibid and 223, which bars the Board from issuing any order/instruction/direction to the adjudicating authority . Hence, it was not mandated upon respondent No.2 or his superiors to comply with the order of the Board/Chief Collector issued withou t lawful authority / jurisdiction manifestly in nullity to the provision of Sections 80, 179, 193, 195 and 223 of the Act. He has to act independently without any influence and no authority can direct him to act contrary to the law. It is also amazing to note that how the Respondent No.2 reassessed the goods under section 80 of the Act despite being an officer of PRV, which is not an Appropriate Officer under Section 80 to be read with SRO. 371(1)/2002 dated 15.06.2002. However , the appropriate Officer is indeed empowered to re-assess the GD in case the called documents are proved to be false and so the declaration transmitted under Section 79(1) of the Act, 1969 and Rule 433 ibid after clearance of the goods but not in the absence of the basic mechanism defined in Section 80(2)&(3) ibid.
8. The respondent No.2 also acted in nullity to the provision of Section 29 of the Act. It is of vital importance for reaching at a just decision to visit and understand essence and spirit and Constitutional and legislature construction of Section 29 containing expression "Restriction on amendment of goods declaration" reading as: Section 29; except as provided in section 88 no amendment of goods declaration relating to goods assessed for duty on declared value quantity or description thereof--shall be allowed after such goods have been removed from the port area or assigned Customs Reference Number electronically , as the case may be." (Emphasis supplied)
The rationale and legal construction of the above expression is that no amendment under section 205 of the Act, is allowed in the C columns of the declared /assessed value, quantity or description after removal of the goods from the customs area for home consum ption as contemplated in Section 79(1) after passing of valid assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 ibid, or after shipment of the exported goods through GD for export transmitted under Section 130 and Rule 444 after completion of codal formalities defined in Section 131 and Rules 450 of the Act/Rules or wherein Customs Reference Number is - allotted to the GD electronically . A cap has been laid on the importer/exporter for obtaining amendment after out of charge of the GD in case of import or shipped in full in case of GD for export or post filing of. GD. The phrase "assessed for duty" used in the expression lays restriction on the Customs not to amend itself the contents of Goods Declaration after clearance under Sections 83 and 130 and Rules 442 and 450 of the Act/Rules on the strength of valid assessment orders for levy and duty and taxes under Sections 80 and 131 and Rules 438 and 442 ibid by the appropriate authority defined in Section 2(a) in exercise of the powers vested upon him through SRO No.371(I)2002 dated 15.06.2002. The respondent No.2 while making reassessment of the appellant's GD after clearance of the goods infact amended unit value to US$ 1.69/kg and value of the goods to Rs.4,687,386/- as against declared/assessed US$ 1.10/kg and Rs.3,024,025.00 in the GD under Section 205 of the Act, which is in derogation of Section 29 and as such not valid and fail the test of judicial scrutiny . In principle if it is considered for the sake of arguments that the customs is empowered to reassess GD after clearan ce of the goods under provision of section 80(3) without adhering the procedure laid down in section 80(2), there was no need for the legislature to frame subsection (2) for inserting in Section 80 of the Act. The intention of legislature was not as interpreted by the respondents Nos.2 and 3. The fact of matter is no reassessment is permitted under Section 80(3) of the Act, once the goods are cleared for home consumption or shipped on board for export. The reassessment is permitted prior to passing of Order of clearance/shipment under Sections 83 and 130 and Rule 442 and Rule 453 of the Act/Rules upon filing of review by the importer/exporter under Rules 441 and 450(3) ibid against the assessment orders of Appraiser/Principal Appraiser before the Principal Appraiser and subsequently before Assistant/Deputy Collector of the Group as the case may be. Therefore , I hold that the reassessment made by Respondent No.2 is tantamount to amendment under Section 205 post clearance/out of charge of the goods, hence, in nullity to the provision of Sections 29, 80(2)&(3) of the Act, besides without any power or jurisdiction under Sections 80, 131 and Rules 438 and 450 of the Act/Rules and S.R.O. 371(1)/2002 dated 15.06.2002 and as such Without any lawful authority , hence void and ab-initio.
9. Upon transmitting view message dated 10.05.2018 in regards to assessment/clearance orders under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by the competent authority in exercise of the powers vested upon him through SRO. 371(1)/2002 dated 15.06.2002 that the consignment has been sent to gate staff for gate out. Consequent to which the appellant clearing agent obtained the delivery on the same date.
After lapse of about 05 months the respondent No.2 after reassessing the GD created recovery of Rs.238,032/- sans transmitting of view message, which would had invariably contain the direction to the appellant reading as "B/L No. KMTCXGG1 166234 dated 22.03.2018 has been sent to cashier for payment. You are requested to pay Rs.238,032/-", when infact the act of clearance stands concluded on 10.05.2018. This view message after post clearance is by all means falls within the definition of demand notice for recovery of short paid amount of duty and taxes due to commission of inadvertence by the Officials of Clearance Collectorate. Such type of recovery can only be created upon passing of an order after issuance of show-cause notice under Section 32(3) of the Act, expression of which read as: "Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiring him to show-cause why he should not pay the amount specified in the notice". In the instant case no show-cause notice has been issued despite mandated under law, issuance of show-cause notice is pre-requisite and cannot be dispense with under any circumstances. While creating recovery through view message the respondent No.2, infact committed violation of the provision of Section 32(3) of the Act and principle of natural justice of fair trial guaranteed under Article 10A of Constitution. Rendering the recovery so created without any lawful authority and as such void and ab-initio in the light of reported judgment referred by the appellant in grounds (iv) of memo. of appeal reported as 2006 PTD 978 Forte Pakistan (Pvt.) Ltd., Karachi v. The Director General of Intelligence and Investigation (Customs and Excise ), Karachi and another , wherein it has been held that "service of notice under section 32 of the is a condition precedent for initiation of proceedings, in the absence of notice under section 32 on the importer the entire proceeding initiated by the Adjudicating officer and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction, void and in operative. The entire proceeding are accordingly struck off" and the Hon'ble Supreme Court of Pakistan in judgment reported as 2001 SCMR 838 Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electric Lamp MFG Co., Ltd. Peshawar held that "demand notices in the absence of statutory show-cause notices were without lawful foundation. It is well settled proposition of lax that a thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all since pre requisite show-cause notices as required by law have not been served on the respondents, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore, in the absence of statutory notice, demand notices dated 25.07.95 and 26.07.95 were without lawful authority and thus of no legal effect. "In accordance with the ratio decidendi by the judicial fora. I therefore, hold that the recovery/demand notice communicated through reassessment order dated 11.10.2018 is being issued in isolation/vacuum and as such without any lawful authority , hence, null, void and ab-initio and the structure built upon this order has no legal value.
10. Since the recovery so created by the respondent No.2 falls within the ambit of Section 32(3) of the Act, the authority enjoying the powers under this section is Principal Appraiser under Serial No.3(ii) of SRO 371(1)/2002 dated 15.06.2002. To the contrary , respondent No.2 issued recovery/demand notice through view message dated 11.10.2018 and subsequent by usurping the powers of Principal Appraiser , which is not permitted under law.
Nobody is allowed to usurp the powers of his subordinates as held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others and 2009 PTD 1083 that Superior authority cannot exercise the power of his subordinates for adjudication purpose ........powers of authority by either superior or subordinates is held as to be without jurisdiction beside usurpation". Rendering the transmitting of view message for creatin g demand/recovery in the garb of reassessment under section 80(3) is without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non-fu lfillment would entail the entire proceeding to be corarn non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517 , PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, 2004 CLD 373; PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842; 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD (Trib.) 1636, 2011 PTD (Trib.) 2114, 2011 PTD (Trib.) 2557, 2010 PTD 465 and 2014 Supreme Court 514.
11. The respondent No.2 through view message dated 11.10.2018 and through subsequent demand notice also created recovery for the short paid Sales Tax and Income Tax due to inadvertence, while reassessing the GD under Section 80(3), while ignoring the fact that section 80(3) only speaks about "duty" not the taxes for which the appropriate authorities as expressed in Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance are "Officer of Inland Revenue/Commissioner of Income Tax", Customs officials figure nowhere.
Resultant, he is not empowered to create recovery of Sales Tax and Income Tax Post Clearance. To the contrary , customs is infact empowered to collect Sales Tax and Income Tax leviable on the imported goods in the capacity of collecting agent in exercise of the powers vested under section 6 of the STA and Section 148 of the ITO. Through the view message he created recovery of Sales Tax and. Income Tax despite having no power , rendering the view message for recovery of taxes without powers/jurisdiction, by virtue of exercise of powers not vested to him under Section 11 and the STA and Section 162(1) of the ITO, therefore same is not correct and valid, hence void and ab- initio. The exercise of powers by the authority has to be within the expressed provi sion of the Act/Ordinance as per laid down principle by the Hon'ble Supreme Court of Pakistan in 2002 PTD 2457 that "the thing should be done as they are required to be done, or not at all", PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner", PLD 1973 Supreme Court 236 "it is now well, established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v.
Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner , such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted". The super structure built on such foundation no matter how strong it is has to fall. Refer to PLD 1996 Karachi 68, which laid down that " where the initial order or notice was void ail subsequent proceedings, orders or super structure built on it were also void. In reported judgment 2006 PTD 978 it is held that "the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The Apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---- all successive orders based upon it illegal and liable to be quashed.
12. Notwithstanding, to the adumbration made here-in-above, it is now well settled law that if assessment of the goods at the time of passing Assessment Order under Section 80 and Rule 438 of the Act/Rule had not been made with the correct application of the value available in data reservoir maintained by the PRAL or with the application of in field VR, it cannot be applied for the purpose of assessment after out of charge i.e. passing of clearance Order under Section 83 and Rule 442 ibid by virtue of bar laid down in Section 29 of the Act and of the fact of becoming of Officer of Customs as "functus officio " as held by the Hon'ble Court of Lahore in 2009 PTD 467 Messrs S.T.
Enterprises v. Federation of Pakistan and 4 others that, "Valuation Ruling are estimate, if the same are not followed at the time of earlier appraisement it cannot be used against an importer which has already appraised and has been made out of charge by the authorities" and High Court of Sindh in 2008 PTD 1968 Sikander Enterprises v. Customs Excise and Sales Tax Tribunal, Karachi and 03 others , that "After disposal of the imported second hand clothes in the very year to assess the value of the goods on presumptive evidence, was beyond the scope of Section 25 of Customs Act, 1969...... Even otherwise, after clearance of the goods and removal of consignment from customs area, Customs Authorities were functus officio to reopen the case again as it had become past and closed transaction".
13. The appeals before Respondent No.3 was filed on 09.11.2018, in terms of Section 193A(3) of the Act, Orders have to be passed within 120 days or within further extended period of 60 days in terms of its proviso by the respondent No.3, himself, upon availability of exceptional circumstances and recording of those after issuance of notice to the tax payer as held by Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881 , Khalid Mahmood v. Collector of Cust oms. In the instant case order should had been passed on or before 20.02.2018, which he failed, beside no extension whatsoever was given by him prior to lapse of initial period of 120 days as evident from the Order , which is silent. Resultant, the Order passed by the respondent No.3 on 01.03.2018, is barred by time by 08 days. Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held in the reported judgments 2017 PTD 1756 and 2017 SCMR 1427 Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Deen & Sons and others, 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala, 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector Ad'udication 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 Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1 146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others.
14. To what have been stated/discussed and observed herein above, particularly the interpretation of law and legal preposition discussed in the light of prescribed law and observations made thereon and to follow the ratio decidendi, I hold that the re-assessment orders /view Messages passed/transmitted by the respondent No.2 in GDs of the appellants and as well as the orders in appeal passed by the respondent No.3 suffers from grave legal infirmities, therefore are declared to be illegal, null and void and hereby set-aside and appeals are allowed as prayed.
15. Judgment passed and announced accordingly .