MUHAM MAD SAJID ABBASSI, MEMBER JUDICIAL (CHAIRMAN).---- Through this order , I intend to dispose of Appeal No.K-762/2018 directed against Order-in-Appeal No.1149/2018 dated 16-5-2018 passed by Collects of Customs (Appeals), (Respondent No.4) maintaining the Order-in-Original No.656/2016-17 dated 8-5-2017 passed by Deputy Collector , Collectorate of Customs, Adjudication-I, Karachi (Respondent No.3).
2. Briefly facts of the case are, the appellant is a commercial important, during the course of his business activities he imported a consignment of 25670 CBM/1988 lkgs of embossed MDF Board of different sizes from China @ US$ 50.30 per kg C&F. Upon receipt of documents delivered those to their clearing agent Messrs Khurram Brothers, Karachi for transmitting Goods Declaration (GD) with the MCC of PMBQ under the provision of section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Custom s Rules, 2001 (Rules), which he did and as per pre-requisite for availing the regime of Customs Computerized System (CCS) deposited upfront duty of Rs. 338,773.00 on 13.10.2016, conse quent to which GD was numbered KPPI-HC-23031 dated 13.10.2016.
Upon appearance of which on his work station the nominated Appraiser opted to get the goods examined first prior to passing of assessment order under Section 80 and Rule 438 ibid., to proceed with he adduced his opinion/reasoning for getting the goods examined as enunciated in Section 198 and Rule 433 of the Act/Rules and transmitted that to the Deputy Collector Group-III, MCC of PMBQ (Respondent No. 2), who assented and routed the GD to the Deputy Collector of Customs, Examination, QICT , who nominated the examiner of his choice, who carried out the physical examination and confirm the declaration and report so prepared was uploaded in the reservoir of the GD for the perusal of nominated officer, who upon receipt of that on his workstation passed assessment order with the application of identical/similar goods value as defined in sections 25(5) and (6) and Rules 117 and 118 available in the data reservoir maintained by PRAL under Rule 110 of the period given in Rule 107 of the Rules on 19.10.2016 while adducing remarks in assessment note reading as "10% loading due to embossing" and transmitted view message for payment of additional amount of duty and taxes of Rs. 40938.00 , which was paid by the appellant on 20.10.2016, consequent to which the inbuilt authority of Custom Computerized System (CCS) passed clearance order under the provision of Section 83 and Rule 442 of the Act. The appellant clearing agent accordingly after obtaining delivery order from the shipping compa ny obtain delivery of the goods from the terminal after payment of their dues and transported the goods to the appellant warehouse in Gujranwala.
The Deputy Director , Directorate General of I&I, Karachi (Respondent No. 1) after lapse of 4 months from the date of clearance of the goods conducted audit under the provision of Section 20(2) of the Act of the GD of the appellant and thereafter framed contravention report for misdeclaration of value within the meaning of Section 32 of the Act alleging that the appellant obtain the delivery of the consignment without application of infield Valuation Ruling No.873/2016 dated 21.06.2016 (VR). Which resulted in short payment/evasion of duty and taxes amounting to Rs.
714937.00, hence contravened the provision of sections 25, 25A and 32(1) & (2) and 79(1) of the Act, sections 3, 6, 7A, 33 and 34 of the Sales Tax Act, 1990 STA and Section 148 of Income Tax Ordinance, 2001 (ITO) punishable under clause (14) of section 156 of the Act and forwarded the same through Director to Collector of Customs, Adjudication-I, who referred the same to the competent officer within the meaning of section 179 of the Act, who was the respondent no. 3, who issued show-cause notice dated 09.02.2017 based on narrated fact and contravening provision of the Act/ST A and ITO in the contravention report without even slightest change of comma and full stop. Appellant replied the same vide dated 06.03.2017, through which he challenged the power/jurisdiction of. respondent No. I under the provision of sections 25, 25A, 26(2) and 32 of the Act and in the matter of sales/income tax and so the respondent No. 3 in the matter of sales tax and income tax, in addition to the allegation of mis-declaration in material particular but of no avail and respondent No.3 passed order dated 25.05.2017, through which charges levelled in the show-cause notice were held to be established against the appellant and she ordered payment of short paid amount of duty and taxes along with imposed penalty of Rs.35,000.00. Vires of which was challenged by the appellant before respondent No. 1 under the provision of Section 193 of the Act, which he rejecte d vide order dated 16.05.2018 mainly in regards to power/jurisdiction of respondents Nos. 1 and 3 in the matter of Sales/income tax sans other arguments corresponding to charge of misdeclaration of value and power/jurisdiction of respondent No.1 under the provision of sections 25, 25A, 32 and 80 of the Act and of the respondent No.3 under the provision of Sections 179 and 32 of the Act and Sections 30, 11(3) of the STA and Sections 162(1) and 207 of the ITO. Paras 7 and 8 of which are relevant, hence reproduced here-inbelow for easement: "I have examined the case record and the arguments of both the sides and have given careful consideration to the facts of the case. The appellants have not contested the fact of application of Valuation Ruling on impugned goods.
Instead legal points regarding power/jurisdiction of the Directorate General of Intelligence and Investigation, and powers of the customs officers to adjudicate cases relating to recovery of sales tax and income tax have been raised. The respondents have placed on record SRO 486(1)/2007 dated 09.06.2007 which specifies sections of the Customs Act, 1969, which, The Directora te General of Intelligence and Investigati on is authorized to exercise the powers of, Moreover , FBR, vide its letter C.No. 2(2)L&P/2004 dated 29.12.2009 has clarified that the Customs Intelligence can detain or seize goods are still lying in the custom area or are in the process of removal. Regarding powers of customs officer to adjudicate cases regarding recovery of sales tax and income tax, the respondent department proceed letter of FBR which says: Subject: LEGAL OPINION -- ADJUDICA TION OF CASES RELA TING TO LEVY AND COLLECTION OF FEDERAL EXCISE, DUTY , SALES TAX AND WITHHOLDING TAX ON IMPOR TED GOODS.
I am directed to refer to the subject cited above and to enclose herewith a copy of a letter No. F.242/2012-Law-I, dated 11.07.2012, issued by the Ministry of Law and Justice, wherein it has been clarified that the Officers of Customs are competent to take cognizance of any short paid amount of Federal Excise duty at import stage and adjudge such cases in view of the provi sions of Section 3(2) of the Federal Excise Act, 2005, namely . "Duty in respect of goods imported into Pakistan shall be levelled and collected in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 (IV of 1969), and the provisions of the said Act including Section 31A thereof shall apply ."
2. Since identical provisions sales exist in the Sales Tax and Income Tax laws, the officers of Customs are also competent to take cognizance of any short paid amount of Sales Tax and Withholding Tax pertaining to import stage. Accordingly , Board's earlier letters on the subject matter bearing C.No. 6(8)S/IR/Ops/2012-8259-R dated 16.01.2012 and C.No. 6(8)S/IR/Ops/2012 -8958-R dated 18.01.2012 issued by the SA to the Chairman FBR and Secretary (IR-Operations), FBR are no longer of any effect , being contrary to the legal provisions of law, as clarified by the law and Justice Division.
3. The relevant Officers of Customs may, therefore, continue the adjudication proceedings already initiated and take cognizance of all cases of FED, Sales Tax and Withholding 'fax pertaining to Import state in future as well.
4. This issues with the approval of Chairman, FBR.
End: As above Sd/- (Raza)
Secretary (T ariff-I)"
8. In view of aforesaid discussion, I do not find any cogent reason to interfere with the original order which is upheld. The appeal fails."
3. The appellant filed the instant 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 has been filed within the stipulated period of 30 days by either respondent No.1 or 2, instead comments were filed by respondent No. 1, which does not qualify in any manner memo. of cross objection resultant, could not be termed as cross appeal within the meaning of subsection (3) of Section 194A of the Act.
Therefore, these are to be considered merely as opinion, having no binding force, nevertheless, placed on record of the case. The case was fixed for pre-admission on 24.07.2017, on which date it was admitted for regular hearing and was adjourned for 08.08.2018, on which date the consultant of the appellant argued the case threadbare and in support of his stance placed multiple citation of the superior judicial fora. Conv ersely , the representative of the respondent No.1 sought adjournment for preparation/deliberation, which was accorded, subsequently , despite seeking adjournment on 13 occasions i.e. from 28.08.2018 till 18.02.2019, attendance were made simply for seeking adjournments for one reason of no substance. This attitude proves lackluster approach in defending the case.
3.(sic) Heard and case record perused and so the relied upon judgments, for reaching at a just decision following issues are framed:
(i) Whether respondent No. 1 and his subordinates have been appointed as an officer of Directorate General of Post Clearance Audit (DGPCA) by the legislature under Section 3DD of the Act and are empowered to conduct audit the record and books of account maintained under Section 211 and Chapter XI of Act/Rules under the provision of Section 26(2) after serving a notice/summon under Section 26A of the Act post clearance of the imported goods as contemplated in SRO 500(I)/2009 dated 13.06.2009?
(ii) Whether powers has been delegated by the Board to the respondent No. 1 and his subordinates under the provision of Sections 25, 25A, 32, 79, 80, 83 and 195 of the Act vide SRO 486(I)/2007 dated 09.06.2007?
(iii) Whether respondent No. 1 and his subordinates are being appointed as an officer of Directorate General of Intelligence and Investigations (Inland Revenue) under the provision of Sections 30A and 230 of STA and ITO and been delegated powers under the different Sections of STA vide SRO 776(1)/201 1 dated 19.08.201 1 and Section 207 of the IT O?
(iv) Whether respondent No. 3 was empowered to adjudicate the instant case under clause (ii) of Section 179 of the Act despite involved amount of duty and taxes of Rs.1,099,684.00?
(v) Whether the respondent No. 3 has powers to adjudicate the case of value misdeclaration falling under the provision of Section 25 of the Act, read with SRO No. 495(I)/2007 dated 09.06.2007 further read with para 44 of CGO 12/2002 dated 15.06.2002?
(vi) Whether Sections 3, 6, 7, 33 and 34 of STA and Section 148 of the ITO are penal clauses to be invoked for the contravention of the charging/applicable sections of the STA/ITO and as to whether those were correctly invoked by the respondent No. 3 in the show-cause notice?
(vii) Whether respondent No. 3 has been appointed as officer of Inland Revenue under section 30 of the STA or any section of ITO and as to whether she is empowered to issue show-cause notice and pass order-in-original in the matter of sales/income tax?
(viii) Whether respondent No. 1/his subordinates and respondent No.3 are empowered to reopen a valid assessment/clearance order passed by the authority defined in Section 2(a) under the provision of Sections 80 and 83 and Rules 438 and 442 of the Acts/Rules under the provision of Section 195 ibid, while ignoring the provision of Section 193, wherein, right of appeal have been extended to them by the legislatur e and as to whether respondent No. 3 is empowered to pile upon anothe r order under the provision of Section 179 of the Act in the presence of existing infield assessment/clearance orders passed under the aforesaid provision of the Act by the authority defined in Section 2(a) ibid?
(ix) Whether any contravention of Section 79(1) of the Act has been committed by the appellant?
(x) Whether charge of misdeclaration of value under the provision of Section 32 of the Act can be invoke on the strength of the valuation ruling and could be treated as direct evidence as enunciated in paras 78, 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of SRO 499(I)/2009 dated 13.06.2009? and as to whether valuation ruling can be applied on the imported goods which have already been cleared under the provision of Section 83 and Rule 442 after passing of valid assessment order for levy of duty and taxes under the provision of Section 80 and Rule 438 of the Act/Rules?
(xi) Whether column of value appearing in GD could be amended under Section 205 after clearance of the imposed goods in derogation of the provision of Section 29 of the Act?
(xii) Whether order passed by respondent No. 4 was within time specified in subsection (3) of Section 193A of the Act?
(xiii) Whether orders passed by respondents Nos. 3 and 4 are speaking and well-reasoned and conform to mandated requirement of Section 24A of General Clauses Act, 1897?
4. That as regards to issue No. (i). The legislature has inserted Section 3DD in the Act, through which DGPCA has been created and its officials had been delegated powers through SRO 500(I)/2009 dated 13.06.2009 for conducting audit under Section 26(2), of the record/books of an importer maintained under Section 211 and Chapter XI of Act/Rules after serving notice/summon under Section 26A of the Act, wherein, they check all the aspects corresponding to the declaration made under section 79(1) based on defined documents in Section 2(kka) and assessment order passed by the competent authority under section 80 of the Act. Thereafter , upon finding discrepancy or any ambiguity in any context i.e. declaration or the contravention of the law, prepares audit observation and serves that on the importer for clarification, if the reply is not convincing as per their formed opinion, frames contravention report and forward that to the Collector of Customs of the respective Clearance Collectorate, which onward forwards it to the respective Collectorate of Customs, Adjudication for issuance of show-cause notice under section 180 of the Act and passing of order-inoriginal as per the expression of Section 179 ibid. The officials of 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), in the absence of availability of powers. Neither respondent No. 1 nor his subordinates are permitted under law to transgress the sovereign jurisdiction/powers of DGPCA and his subordinates under any circumstances as this will reader 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. The Tribunal has observed with great concern that the respondent No. 1 and his subordinates are running parallel department of the DGPCA which is in derogation of Section 3DD ibid, not warranted under law being instrumental in creating a situation of anarchy within the different organs of FBR, who will left no stone unturned for exceeding their jurisdiction while encroaching the powers/jurisdiction of the other sovereign organ of the FBR. These type of acts cannot be allowed to be perpetuated under any circumstances instead have to thwart from the very beginning for sustaining the integrity and independent of the different sovereign organs of FBR.
Therefore, conduction of audit post clearance under section 26(2) by the subordinate of respondent No.1 of the GD of the appellant is without lawful authority as such without any power/ jurisdiction, hence, void and ab-initio and coram non judice as held in the relied upon judgments on the said point of law by the appellant in ground No. (i) available at pages 3 and 4 of the memo. of appeal. The issue No. (i) is answered in negative.
5. That as regard to Issue No. (ii). On perusal of contravention report prepared by the respondent No. 1 and his subordinates, on the strength of which respondent No. 3 issued show-cause notice and passed order-in-original, it has been observed that charges against the contravention of the provision of Sections 25, 25A, 32(1) and (2), 32A and 79 of the Act have been levelled against the appellant despite non availability of powers under these Sections in column 3 of SRO 486(1)/2007 dated 09.06.2007, rationale for that was under subsections (1) to (6) of Section 25 of the Act the competent officer of the Clearance Collectorate is empowered to determine /evaluate the declared value of the imported goods for levy/collection of duty and taxes after passing valid appealable assessment order under the provision of Section 80 and C Rule 438 of the Act/Rules but prior to passing of clearance order under Section 83 and Rule 442 ibid, whereas under Section 25A powers has been delegated to the Director , Directorate General of Valuation for determination of value of the goods and class of goods imported under the provisions of subsections (7) to (9) of Section 25 of the Act and to issue the ruling to the said effect for application on the goods, for levy of duty and taxes at the time of passing assessment order . Section 32 expresses that If any person, in connection with any matter of customs, ---- makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever , or (a) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer , Knowing or having reason to believe that such document or statement is false in any material particular , he shall be guilty of an offence under this section. (Emphasis Supplied). None of the importer including appellant make or sign or cause it to be made or signed or delivers or causes to be delivered to an officer of customs any decla ration for the clearance of their goods, which are not either respondent No. 1 or his subordinates, instead the entire declaration and subsequent proceeding is made/completed with/by the officials of Clearance Collectorate i.e. respondent No. 2. Section 79(1) of the Act speaks about filing/transmission of GD for the imported goods with the respective Clearance Collectorate, meaning thereby it is a machinery section not charging, if the GD was either auto selected or by the assessing officer for examination under the provision of Section 198 and Rule 435 of the Rules, its stands ousted from the said section and falls under the provision of section 80 and Rule 438, which lays inbuilt duty on the officer of the clearance Collectorate to check all the aspect of the case and so the levy of duty and taxes and claimed exemption, evident from their 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." and "Rule 438---Assessment by Customs Authorities: Where any declaration has been filed under Rule 433 or additional documents have been submitted under Rule 437 the Customs shall satisfy itself as to their correctness including its value, classification claim of exemption, payment of duty and taxes and may reassess the goods during or after clearance". Section 195 of the Act empowers the Collector of Customs or Board to call for the record of the order/decision passed by subordinate officer for determination of their legality or propriety , in case any illegality or impropriety apparent from the passed order/decision, are empowered to reopen the same and pass a fresh order as he/it deems fit after issuance of show-cause notice, enabling the importer or the person concerned to assail the same before the forum outlined in the provision of Section 194A(1) of the Act. In the light of the adumbration made here-in-above it is established in unequivocal terms that neither respondent No. 1 or his subordinates are empowered to initiate action of detention, seizure preparing of contravention report against the imported goods despite availability of the contravention of the invoked provision in the contravention report, as this is tantamount to reopening of assessment order under Section 195 of the Act, where in respondent No.1 and his subordinates figures nowhere, likewise in the application and implication under the provision of Sections 25, 25A, 32, 79, 80 and 83 of the Act/Rules as deliberated above, rendering their act as transgression to the vested powers of the appropriate authority defined in Section 2(b) under the aforesaid sections of the Act, consequent result of which is that the entire proceeding right from detention to passing of order-in-original is without lawful authority/jurisdiction . Hence, ab-initio, null and void by virtue of the fact that it is settled principal of law that no body is allowed to act beyond the scope of their allotted sphere, jurisdiction and powers as held by the superior judicial fora in their judgments reported at 2002 PTD 2457 , PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505 . In PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. The issue No.(ii) is answered in negative.
6. As regard the issue No. (iii) , upon perusal of amended Section 30A of the STA by Finance Act, 2012 and insertion of Section 230 of the" ITO by Finance Act, 2012, I found that the respondent No. 1 has not been appointed/designated as Officer of Inland Revenue by the legislature, instead Directorate General of Intelligence and Investigation-Inland Revenue which has been delegated powers under SRO. 776(1)/201 1 dated 19.08.201 1 for exercising under different section of the STA referred in column 3 of the notification and under section 207 of the ITO and for overseeing the collection of withholding Tax, Directorate General of Withholding Taxes has been established under Section 230A of the ITO, meaning thereby that the respondent No. 1 and his subordinates are not at all appointed /designated as officer of Inland Revenue. Rendering the entire act of preparation of contravention report in the matter relating to sales tax and income tax by the official of respondent No.1 without powers/jurisdiction and as such coram non judice and this stood validated from the latest reported judgment 2014 PTD 1733 Waseem Ahmed and others v. Federation of Pakistan and another , where it has been held in clear terms that "unless the officer of DGI&I FBR are unappointed as an officer of Inland Revenue, powers under the different subsection of the Sales Tax Act, 1990 cannot be delegated through any SRO with that the Hon'ble High Court of Sindh declared that the act and commission taken by the respondent No.1 in the presence of existing section 30A of the Sales Tax Act, 1990 and Notification No. SRO 776(1)/201 1 the act and commission done by the respondent No.1 in the matter of Sales Tax beyo nd the date of substitution of section 30A and date of notification is without any lawful authority". The issue No.(iii) is answered in negative.
7. That as regard to issue No. (iv). Section 179 of the Act expresses that the powers of adjudication have to be determined by the authority adjudicating the case on the basis of amount of duty and taxes involved (not evaded or short paid) excluding the conveyance. In the instant case the amount of duty and taxes involved are Rs.1.099,684.00 (paid upfront) on 13.10.2016 Rs.338.773.0 + paid additional amou nt on 20-10-2016 Rs.45,938.00 upon passing of assessment order unde r Section 80 and Rule 438 + evaded/short paid amount shown in show- cause notice Rs.714,973.00. Case of such amount falls within the power of Additional Collector of Customs in terms of clause (ii) of subsection (1) section 179 of the Act. To the contrary , the respondent No. 3 issued show- cause notice and passed order-in-original by usurping the powers of Additional Collector , which is not permitted under law. Nobody is allowed to usurp the powers of the defined Adjudicating Authority . Rendering the act of issuance of show-cause notice and passing of order-in-original in the instant case without power/jurisdiction, hence ab initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by any authority is mandatory requirement and its non fulfillment would entail the entire processing to be coram 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 465, 2010 PTD (Trib.) 1636 , 2011 PTD (Trib.) 2114, 2011 PTD (Trib.) 2557 and 2014 Supreme Court 514. (Emphasis supplied). The issue No.(iv) is answered in negative.
8. That as regard to issue No.(v), Directorate General of Valuation has been delegated powers under SRO 495(1)/2007 dated 9-6-2007 read with para. 44 of CGO 12/2002 dated (sic).06.2002 to adjudicate the cases falling under Sections 25, 25A and 32 of the Act, and to initiate action for recovery of Government dues thereafter under Section 202 of the Act read with Recove ry Rules embodied in Rules. In the said SRO and para the respondent No.3 figures no where. By laying hands on the matter relating to Sections 25 and 25A of the Act, and issuance of order for recovery under section 202 of the Act the respondent No. 3 encroached the specific notified territory of Directorate General of Valuation. Rendering the show-cause notice and order issued/passed by him and the subsequent order passed by respondent No.4 as without power/jurisdiction, hence ab-initio, null and void as held by the Superior Judicial Fora in the judgm ent reported as PLD 1971 SC 184, PLD 1971 Supreme Court 197, PLD 1973 Supreme Court 236; PLD 1976 Supreme Court 514, 1992 ALD 449 (1) Karachi, 2004 PTD 624, 2006 PTD 2237 , 2009 PTD (Trib) 1926, 2010 PTD (Trib.) 832, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842 and 2014 PTD 199 . The issue No. (v) is answered in negative.
9. That as regard to issue No. (vi) That respondent No. 3 invoked certain provisio n of STA and ITO without going through their expression, and in negatio n of the ratio settled by the Supreme Court of Pakistan in reported judgment 2010 SCMR 1425 Section Officer Government of Punjab Finance Department and others v.
Ghulam Shabbir that the Principle of Administration of Justice and Interpretation of Statute is that "the person who is performing the role of a judge, no matter even in quasi-judicial proceeding must wear all laws of the country on the sleeves of his robes and failure to do so by any reason is not an excuse".
Sections 3, 6, 7, 33 and 34 STA and 148 of the ITO, Section 3 is indeed a charging Section but under the said Section the appropriate authority is officer of Inland Revenue, whereas Section 6 defines mode and manners of collection of Sales Tax at import stage by the customs authority , resultant it is not a charging instead a machinery section. Whereas, Section 7 of the STA speaks about determination of tax liability at the time of filing sales tax return under section 26 of the STA , this is as well a machinery section and Section 33 contain penal clauses F synonymous to Section 156(1) of the Act and Section 34 speaks about default surcharge to be paid upon contravention and establishing of the charge under charging section. Likewise, Section 148 prescribes the procedure for collection of Income Tax at import stage by the authorities referred therein. Meaning, thereby that the said sections are independent under which no charge can be invoked. To the contrary , I am flabbergasted to note that respondent No. 3 invoked these as penal clauses. I have no words for this sort of ignorance putting a big question mark on the competency of the respondent No. 3. No show-cause notice is allowed to be issued by terming aforesaid section, who are indep endent and have no nexus with each other , by terming these as penal clauses in the absence of invoking of relevant charging/respective sections of the STA and ITO. Issuance of show- cause notice, while invoking irrelevant/erroneous sections, renders it void and ab-initio and I of no legal effect as held by the superior judicial fora in their judgments G reported at Assistant Collector v. Khyber Election Lamps 2003 PTD 1257 . D. G Khan Cement v, Collector of Customs 2005 PTD 480, Caltex v. Collector (2003) 88 Taxation 128 (Lah.), Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v.
Additional 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.
Additional Collector of Customs. The issue No. (vi) is answered in negative.
9-(sic) That as regard to issue No. (vii). I, have also noticed with great concern that Respondent No. 3 in the show- cause notice have invoked certain Sections of STA and Section 148 of the ITO as contended by the Consultant/ Advocate of the Appellant that Respondent No. 3 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 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. 3 to assume powers under the provision of Section 11(2) and (3) of the STA and 162(1) of the ITO unless Legislature appoint him 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 79 H 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 3 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(1) of the ITO which are otherwise non existence in the show-cause notice and no charge against the Appellant has been levelled under any provision of the STA and in ITO, rather Sections 3, 6, 7, 33 and 34 of STA and 148 of the ITO have been inserted as penal clauses which are erroneous/irrelevant. Even otherwise, the Respondent No. 3 has also relied upon clauses (4) 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 be invoked in the matter of Sales Tax and Income Tax falling under Sections 11 and 162(1) ibid. For further clarity of the issue I have scrupulously gone through the provision of Section 30 of the STA and Section 228 of the ITO and observed that Respondent No. 3 has not been appointed as an Officer of Inland Revenue under these Sections. Resultant, he is 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 collected/paid Sales Tax/ Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Hence, Respondent No. 3 is not empowered to lay hands on any matter failing under the ambit of Section 11 of the STA and section 162(1) of the ITO. Assuming powers on the basis of mistaken belief and warrant of law is palpably illegal beside fatal to the health of the case, as these sections least empowers the Officers of Customs includ ing Respondent No.3 to initiate adjudicati on / 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 subsections (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. 3 figures anywhere. He assumed the power not vested with him under the provision of Sections 11 and 162(1) of the STA and ITO.
Therefore, I am of the considered opinion that the Customs Collectorates does have powers to collect , Sales Tax and Income Tax as duty at import stage conversantly 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 also based on mistaken belief 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.
Hence, 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, 2010 PTD (Trib.)
2086 , SCRA No.01/2010, 2004 PTD 801, 2014 PTD 1963 , 2015 PTD 702, 2016 PTD (Trib.) 969, 2016 PTD (Trib.)
1008 , 2016 PTD (Trib.) 2125 , Appeal No. K-1635/2014, Appeal No.K- 1029/2016, Appeal No.K-1030/2016, 2018 PTD (T rib.) 1318 , 2016 PTD (T rib.) 2436 and 2017 PTD (T rib.) 481 .
The opinion formed by me also have the validation of the judgments reported at 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23 and 2007 PTD 250 in 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 manner of recovery does not alter, the nature of tax nor a tax can be introduced or imported 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. AI-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 a 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 redund ant 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"
I, therefore hold in the light of the law laid down in the referred in above and cases reported at that the exercise of jurisdiction on this point by Respondent No. 3 is 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.
The issue No. (vii) answered in negative.
10. That as regards to issue No. (viii), upon passing of assessment order dated 09.02.2016 under Section 80 and Rule 438 of the Act/Rules, by the authority defined in section 2(a) of the Act and Serial No. 30 of SRO 371(1)/2001 dated 15.06.2001, it cannot be disturbed by any authority for preparing contravention report overlapping the existing, assessment order for initiation of adjudication proceeding, on the basis of which Respondent No. 3 issued show-cause notice and passed order-in-original. The only course available under law for Respondent No.1 was to challenge the assessment order dated 09.09.2016 before respondent No. 4 under section 193 of the Act in exercise of the powers delegated upon them through SRO 486(1)/2007 dated 09.06.2007. In the filed appeal, Respondent No.1 is empowered to incorporate all the apprehension, misreading of the facts and contravention of the provision of the Act/Rules. The respondent. No. 4, upon receipt of the appeal and going through the facts and grounds if thinks fit that the contention of the Respondent No. 1 seems to be correct and the duty and taxes has not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show-cause notice to the importer (appellant) under the provision of Section 32 as expressed in 3rd proviso to the subsection (3) of Section 193A of the Act. Instead of adherence of the prescribed method available in the Act. the Respondent No. 1 reopened the assessment/clearance order under Section 195 of the Act under which no powers are vested either of the Respondents i.e. 1 and 3. When the right of appeal has been accorded by the legislature in the provision of Section 193 of the Act, the provision of Section 195 is K un-operational and cannot be exercised even by the authority defined therein and this has been validated by the Hon'ble High Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd. Karachi v. Secretary Revenue Division 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 (Appeal) -- 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 exerc ise 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 C.P.L.A. 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. It is also settled proposition of law that in the presence of an appealable order , fresh order cannot be passed even in the shape of reassessment order or through issuance of show-cause notice under section 180, while exercising powers under the provision of Section 179 ibid. These acts are piling upon multiple orders on the existing appealable order not permitted under law as held by Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 Messrs Smith Kline French v. Pakistan that "once an order is passed, which attain finality the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order . By virtue of non filing of appeal against the assessment order dated 09.09.2016 as elaborated above by Respondent No. 1 on or before 08.10.2016. The transaction stood passed and closed and attained finality and cannot be disturbed. For reaching at the said conclusion I have gained strength from the reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Boom of Revenue , wherein their lordship of High Court held that "if the order has attained finality through limitation. A fortiori; the Central Board of Reve nue could not open up an order that has attained finality , under the Sea Customs Act, 1878 and against which suo motu revision. Notwithstanding, the act of issuance of show-cause notice and passing of order-in-original by Respondent No.3 also falls under the ambit of "double jeopardy" not permitted under Article 13 of the Constitution of Islamic Republic of Pakistan.
Rendering the orders passed by the forum below i.e. respondents Nos. 3 and 4 for piling upon an existing appealable order are without lawful autho rity and jurisdiction and as such void and ab-initio and of no legal effect.
The Issue No. (viii) is answered in negative.
11. That as regard to issue No. (ix). Leveling allegation of contravention of Section 79(1) of the Act is erroneous by virtue of the fact that aforesaid section is not a charging section instead a mach inery outlining the procedure of transmitting GD with the Clearance Collectorate under the regime of CCS, no charge under the said Section could be invoked in the show-cause notice even in general not particularly when the goods were selected for examination under the provision of Section 198 and Rule 435 and the goods were released after passing valid assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by the authority defined in section 2(a) of the Act in exercise of the vested power delegated upon him through SRO 371(I)/2002 dated 15.06.2002 for levy of duty and taxes with the application of value of the identical/similar goods available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of the Rules., Since, the goods of the appellant were not either auto cleared by the CSS module, instead after completion of all codal formalities warranted for clearance of the goods i.e. conduction of examination under Section 198 and Rule 435 and passing of assessment/clearance order under sections 80 and 83 and Rules 438 and 442 of the Act by the authority defined in Section 2(a) in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002, his consignment cannot be construed to any stretch of imagination/interpretation cleared on self assessment basis under the provision of Section 79(1) of the Act. Hence, no contravention of the said section despite machinery has been made by the appellant, invoking the contravention of section 79(1) by the respondent No. 3 in the show-cause notice is erroneous/out of place. The issue No. (ix) is answered in negative.
12. That as regard to issue No. (x). One has to look into the definition available in Section 2(kka) for the documents required for transmitting GD under the provision of Section 79(1) of the Act and which read as: "documents means a goods declaration, application for claim of refund, duty drawback or repayment of duty , import or export general manifest passenger manifest, bill of lading, airway bill, commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to customs, whether or not signed or initiated or otherwise authenticated, and also includes:-
(i) any form of writing on material, data or information recorded, transmitted, or stored by means of a tape recorder , computer or any other devic e, and material subsequently derived from information so recorded, transmitted or stored;
(ii) a label, marking or other form of writing that identifies anything of which it forms part of to which it is attached by any means;
(iii) a book, map, plan, graph or drawing, and iv) a photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment of being reproduced; and)] From the perusal of the above definition, it has been observed by me that for filing/transmitting GD under the provision of Section 79(1) of the Act docum ents warranted are "commercial invoice, packing list. Bill of Lading or Air Way Bill or similar other forms or documents used for customs clearance or making declaration to the Customs, whether or not signed or initialed or otherwise authenticated, which are contract, proforma invoice, letter of credit, certificate of origin, health certificate FTA or akin documents. VR issued by Director , Directorate General of Valuation under the provision of Section 25A of the Act, figures no where in the definition of Section 2(kka) of the Act, terming the VR as a document for transmitting declaration under Section 79(1) despite not defined in Section 2(kka) of the Act nor VR could be construed as an direct evidence within the contemplation available in paras 78, 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of serial No.1 of SRO 499(I )/2009 dated 13.06.2009 , which is evidential invoice of the similar goods of the same period and country of export, to be supplied mandatorily to the person upon which charge has been levelled, which is non existent, no charge of misdeclaration on the basis of VR can' be levelled as that least qualify to the definition of direct evidence warrante d under law. VR is only for the purpose of assessment not for levelling charge of misdeclaration of value, as held by my learned brother Member Technical-II, to which I am in full agreement in reported judgment 2014 PTD (Trib.) 190 Messrs Shoaib Tayyab International v. Additional Collector of Customs, Karachi. It is also settled proposition of law that VR cannot be applied subsequent to clearance for the goods for home consumption under section 83 and Rule 442 on the strength of valid assessment order passed under section 80 and Rule 438 of the Act/Rules for levy of duty and taxes. My opinion stands validated as held by the Hon'ble High 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 the 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 Act 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 becom e past and closed transaction." Rendering the show-cause notice as of no legal effect and based on no evidence as held by Hon'ble High Court of Sindh in reported judgment 1991 PTD 551 that "Any action which is based upon no evidence is not permitted by law" and in 2006 PCr.LJ 1427 = 2006 PTD 2190 that a mere assertion of the prosecution is no evidence." The issue No. (x) is answered in negative.
13. That as regard to issue No. (xi), the respondents Nos. 1 and 3, while preparing contravention report and issuing show-cause notice, also ignored the provision of Section 29 of the Customs Act, 1969. It is important to visit and understand the Constitutional and legislature construct of Section 29 containing expression "restriction on amendment of goods declaration" which states.
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."
The rational construction of the above expression is that no amendment under section 205 of Customs Act, 1969 is allowed in the column of the declared value, equity or description after removal of the goods from the customs area or the Customs Reference Number is allotted to the GD electronically . A cap has been laid on the importer for obtaining amendment post filing of GD and after clearance of the goods. Similarly , the word "assessed for duty" used in the expression lays restriction on the Customs not to amend itself the contents of GD after clearance under Section 83 and Rule 442 of the Act/Rules on the strength of valid assessment order for levy and duty and taxes by the appropriate authority under section 80 and Rule 438 ibid and SRO 371(I)/2002 dated 15.06.2002. The officials of respondents Nos. 1 and 3 in fact desires to change the value declared/assessed in the GD after clearance of the goods 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 conside red for the sake of arguments that the customs is empowered to reassess a GD after clearance of the goods under Section 80(3) without adhering the procedure laid down in Section 80(2), there was no need for the legislature to frame subsection (2). The intention of legislature was not as interpreted by the respondent No. 1. The fact of matter is no reassessment is permitted under Section 80(3) of the Act once the goods are cleared, which the official of respondents Nos. 1 and 3 passed through framing of contravention report/ passing of order-in-original. The reassessment is permitted prior to passing of Order of clearance under Section 83 and Rule 442 ibid. Therefore the entire act of respondent No. 1 and respondent No. 3 is in derogation of Sections 29 & 80(2), (3) of the Act besides without any power or jurisdiction under Section 80 and Rule 438 Act/Rules and SRO 371(1)/2002 dated 15.06.2002 and as such without any lawful authority , hence void and ab initio. The issue No. (xi) is answered in negative.
14. That as regard to issue No. (xii) the appeal before respondent No. 4 was filed by the appellant on 23.06.2017 and an order in that has to be filed as per the contemplation of subsection (3) of Section 193A of the Act within 120 days i.e. on or before 20.10.2017 or with further extended period of 60 days by the respondent No.4 prior to lapse of initial period of 120 days on availability of exceptional circumstances and recording of those, after serving notice to the appellant as held by Hon'ble Supreme Court of Pakistan in its judgment reported at 2009 SCMR 1881, Khalid Mahmood v. Collector of Customs . In the instant case of the appellant, no extension whatsoever was given by the respondent No. 4 prior to expiry of initial period of 120 days, evident from the Order itself which is completely silent in this regard. The extension given by the Board vide letter C.No. 2(1)S(legal Cus-A&A)/2016-Pt dated 22.03.2018 is not valid by virtue of the fact that it has to be given prior to the lapse of currency of initial period of 120 days, extension granted by the Board on 22.03.2018 is nothing more than flogging a dead horse for giving a lease of life. The fact of matter is any medication or cure has to be administered prior to demise of an issue, can't be revived even through artificial support when the issue had gone to the annul of history . Hence, the order passed by respondent No. 4 on 22.12.2017 is barred by time by 221 days. Rendering it without power/jurisdiction, hence void, ab initio and not enforceable under law as held by the Judicial Fora in their judgments reported at 2017 PTD 1756 and 2017 SCMR 1427 Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Deen and 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 (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others, 2009 PTD (Trib.) 1263 Messrs Syed Bhai Lighting Limited Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others, 2009 PTD 1978 Leo Enterprises v. President of Pakistan and others 2010 PTD (Trib.) 1010 Innovative Impex v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS; 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.) 1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.)
1650 Pak Electron Ltd. v. Collector of Custo ms, Lahore and others. ##TE ## The issue No.(xii) is answered in negative.
15. That as regard to issue No. (xiii), the orders passed by respondents. Nos. 3 and 4 shows that these are mala fide Order based on assumptions/presumption and conjectures finding no place in the reply to the show-cause notice and grounds of appeal of the appellant, validated from the fact that no arguments of the appellant has either been incorporated or deliberated by respondent No. 3 in the impugned Order-in-Original and respondent No. 4 in Order-in-Appeal incorporated the grounds of appeal at para 3 of the older i.e. on pages 2 to 13 only for stretching the order , not single word in rebuttal of those have been given in the order with the exception of power/jurisdiction in the matter of sales/income tax and that also on the misconceived formed opinion having no warrant of law as evident from the adumbration made in issues Nos. (iii), (vi) and (vii) . These cannot be termed as a judicial order by any through any definition. The fact of the matter is, these are non-speaking order and does not conform to the mandated requirement of section 24-A of the General Clauses Act, 1897. They passed the impugned orders on their personal pre-determined and absurd formed opinion contrary to law and that too are also not containing substantial reasons and does not shows that these were passed on objective consideration. Such type of orders are deemed to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary . No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law.
The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The orders are in violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019 , 2007 PTD 2500, 2004 PTD 1973 , 2005 YLR 1719 , 2003 PTD 777, 2003 PTD (Trib) 2369, 2002 MLD 357, 1983 CLC 2882 , 2005 PTD 2519 , 2005 PTD 1189, 2003 PTD 2369, PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 , 2012 PTD (Trib.) 619 and 2016 PTD 589 . The issue No. (xiii) is answered in negative.
16. 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 the contravention report /show-cause notice framed/issued by respondents Nos. 1 and 3 in addition to setting aside the orders passed thereon, during the hierarchy of the customs being illegal, void and abinitio, appeal is accordingly allowed with no order as to cost.
17. Judgment passed and announced accordingly .