JAHANZAIB WAHLAH, MEMBER JUDICIAL-III. ----Through this order , I intend to dispose off appeal bearing No. K-253/2018 directed against the Orders-in-Original No.224/2017-18 dated 02.02.2018 passed by Additional Collector of Customs, Adjudication-II, Karachi.
2. Briefly facts of the case are that the appellant is a clearing forwarding agent having Custom License CHAL No.122 and undertake the clearance of consignments of the importers from the ports/terminals defined in Sections 9 and 10 of the Customs Act, 1969 (Act). Messrs Pak Elektron (Pvt.) Ltd., Lahore is one of his client, who supplied the appellant the documents defined in section 2(kka) of the Act for transmitting Goods Declaration (GD) under the provision of Section 79(1) of the Act and Rule 433 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 (Rules) with the MCC of Appraisement-East for the clearance of Wannate PM-2010 Polymethylene Polyproplene Isocynate (a "Polymeric MDI"). Which filed as per the description and details mentioned in the import documents provided to him and deposited upfront duty and taxes after obtaining pay orders from the importer . Consequent to which GD was numbered as KAPE-126661-17.01.20 18, the Customs Computerized System (CCS) thereafter after evaluating the declaration in regards to every aspect including PCT heading passed assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules. The appellant thereafter , after obtaining delivery order from the shipping company approached terminal for delivery of the goods. The officials of the terminal showed their inability to do so, by virtue of putting an hold on the GD by the subordinate of the Director , Directorate Genetal of I&I-FBR-Enforcement (respondent No.1). Resultant, he approach them for the reason and was shocked to learn that the reason for detaining is claiming of FTA, which according to them was not admissible.
The appellant tried to made them understand that the claim benefit is admissible under serial No.624 of Table-II of SRO 570(I)/2017 dated 01.07.2017, but of no avail and they converted that detention into seizure under the provision of Section 168(1) of the Act and framed contravention report, which was forwarded to respondent No.3, who issued show-cause notice dated 28.01.2018, enumerating the fact and contr avening provision of the Act as narrated in contravention report, reply to which was submitted. The respondent No.3 without going through the facts and the provision of the Act and notification passed order dated 02.02.2018, through which imposed a penalty of Rs.100.000/- on the appellant, in the absence of availability of any fault or default on his parts under the Licensing Rules and alleged mis-declaration in material particular committed by the appellant. The relevant portion of the order corresponding to the appellant read as:- "A penalty of Rs.100,000/- (Rupees One Hundred Thousand Only) is also imposed on Messrs Abdul Aziz Savul & Co., (CHAL No.122) Karachi in terms of clauses (10A) (14) of Section 156(1) of the Customs Act, 1969".
3. The appellant preferred the instant. appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of heari ng argued the case strictly in accordance with those. No cross-objections under Section 194A(4) of the Act have been filed within the stipulated period of 30 days by the respondent No.1, resultant, lost right of cross appeal within the contemplation of aforesaid section. However , on the date of hearing the representative of respondent No.1 vehemently defended the order passed by respondent No.3 and prayed for dismissal of the appeal being of no substance and legal ef fect.
4. Heard and case record perused. It has been observed by me that penalty on appellant has been imposed by the respondent No.3 on the basis of allegation that he transmitted GD, which he filed on the strength of the documents supplied by the importer , nothing contrar y to the contents of those was transmitted, no fault or default has been spelt out in the show-cause notice or a slightest incriminating evidence on the record of the Tribunal. Meaning thereby that the allegations are based on assumptions/presumptions and this stand validated from the contents of show-cause notice containing no allegation of any sort. Confirming that respondents Nos.1 and 3 acted in very causal and wonton manner in framing contravention report and in issuance of show-cause notice, while ignoring the fact that it is a fundamental documents which comprehensively describe the case made out against the tax payer by making reference to the evidence collected in support of the same and with a narration of facts in the show-cause notice along with supportive evidence which determined the offence attracted to a particular case.
Beside, it is of paramount importance to adduce further that show-cause notice is not a casual correspondence or a tool or a license to commence a rowing inquiry into the affair based on assum ption and speculation but is a fundamental documents that carried definitive legal and factual position of the department against the tax payer , legal enforceability and jurisdictional validity of a show-cause notice vested from its context, that was, the fact suppose to be tangible evidence referred to in the show-cause notice and not from the cosmetic show causing of statutory provision or from the use of statutory keywords in the show-cause notice. Such show-cause notices are always declared to be defective, nullity to the warrant of law and cases based on those are declared to be ab-initio, null and void, inclusive of subsequent orders as held in 2004 PTD (Trib.) 1324 , PLD 1961 SC 237, PLD 1964 SC 410, PLD 1964 SC 536, PLD 1965 Supreme Court 90, 1983 SCMR 1208 , PLD 1987 Supreme Court 304, 1994 SCMR 2232 , 2003 SCMR 1505 , 2006 SCMR 129, 2006 SCMR 1023 , 2013 PTD (Trib.) 353 and 2015 PTD (Trib.)
1422 .
5. In the light of deliberation made here- in-above, I have reached to the irresistible conclusion that imposition of penalty on the appellant by the respondent No.3 is not sustainable under law, this was even known to him as evident from the part of the order , wherei n penalty was imposed, in very cursory manner . Therefore, order passed by respondent No.3 to the extent of appellant stands quashed and appeal is allowed.
6. Order passed and announced accordingly .