JAHANZAIB WAHLAH, MEMBER JUDICIAL III.----Through this common order , I dispose off Appeal No.1532/2019 filed against Order-in-Original No. 511/2018-2019 dated 10.12.2018 passed by passed by Additional Collector of Customs, Adjudication-I and Contempt Application No.635/2019 filed by the appellant for non- compliance of interim order dated 25.02.2019 of this Tribunal.
2. Brief facts of the case are, the appellant during the course of his business activity imported a consignment of 24561 kgs of iron and steel rim spokes of Malaysian origin against invoice No.K-5330-CI dated 29.06.2018 and B/L No. P AKMAL859 dated 13.07.2018, upon receipt of documents delivered pose to his clearing agent M/s. Khurram & Co., 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 Customs. Rules, 2001, (Rules) which he did and as per pre-requisite for availing the regime of Custom Computerized System (CCS) deposited upfront duty and taxes amounting to Rs.1,018,769/- in NBP on the basis of declaration. Consequent to which GD were numbered as KAPPI-HC5051-17072018 which was selected for examination in terms of Section 198 and Rule 435 of the Act/Rules, wherein declaration was confirmed and report so prepared was uploaded in the reservoir of the GD, on the strength of which the assessing officer passed assessment order dated 10.07.2018 under' Section 80 and Rules 438 of the Act/Rules. With the application of alien value of US$ 1.10/kg for levy of duty and taxes, against which appellant filed review under Rule 441 before Principal Appraiser , Group-VII, MCC of PMBQ (respondent No.2), who upheld the same and transmitted view message for payment of additional amount of duty and taxes of Rs.846,086/-, which were paid on 19.07.2018.
Consequent to which the inbuilt authority of the CCS passed clearance order under section 83 and Rules 442 of the Act/Rules. Thereafter the clearing agent of the appellant after obtaining delivery order from the shipping company , obtained delivery from the terminal and as per the instruction of the appellant delivered those to M/s. Saleem Raza Goods Transport Station, Railway Station Karachi for transporting to his buyer in Lahore. Prior to transportation the officials of the Directorate General of Intelligence and Investigation (Enforcement-Wing), Karachi (respondent No.1) appeared at the office of the transporter and carried out the search under Section 163 of the Act and transported the appellant goods to their office. Where examination was conducted and an opinion was formed that the goods are in fact motorcycle spokes falling under PCT heading 8714.1020 chargeable to CD @ 35% instead of bicycle Rim spokes falling under PCT heading 8714.9200 chargeable to CD @ 20%. The appellant was pressurized to deposit the differential amount of duty and taxes of Rs.1,028,900/- as security failing to which threat of lodging of FIR was communicated. Since, the appellant was put into an ignoble situation; he has no other option except to scumb to the demand and deposited the requisite amount in the shape of pay order as security .
Thereafter , the subordinate of respondent No.1 seized the consignment under the provision of section 168(1) of the Act and framed a contravention report with the allegation that the appellant mis-declared the description and PCT Heading, which resulted in loss of revenue to the exchequer to the extent of Rs.1,0 28,900/- and the said act of his falls within the ambit of contravention of sections 2(1), (2)(sic), 32A, 79(1) and 209 of the Act, Sections 6, 33, 34 and 36 of the Sales Tax. Act, 1990 (STA) and Section 148 of the Income Tax Ordinance, 2001 punishable under clauses 14, 14A and 19 of section 156(1) of the Act and forwarded that to respondent No.3, who issued show-cause notice dated 07.08.2018 containing the same fact and the contravening provision of the Act, STA and ITO as were narrated in the contravention report without even change of comma and full stop. The appellant advocate replied the allegation 'vide dated 03.09.2018, which was not considered and respondent No.3 passed order dated 04.12.2018, through which he held the charges levelled in the show-cause notice as established and ordered confiscation of the goods subject to redemption of those on payment of fine equivalent to 35% i.e. Rs.1,179,598/- and personal penalty of Rs.500.000/- in addition to -short paid/evaded amount of duty and taxes of Rs.1,028,900/-. Para 8 of the order is relevant, which is reproduced here-in-under: "I have gone through the record of the case as well as the verbal and written arguments of both the parties. The respondents have put forward a very strong defense and have raised legal objection on the jurisdiction and authority of the Intelligence and Investigation with proper example of Supreme Court as well as Hon'ble Courts various judgments but Hon'ble Supreme Courts in its various judgment has pointed out that mere procedural lapse doesn't absolve oneself from the crime peiformed. (The importer himself paid the difference in duty and taxes so he himself admitted his mis-declaration). The jurisdiction of Intelligence and Investigation officers in this case is valid because they are officers of Customs Department they have rightly seized goods and the charges of mis- declaration and violation of section 32(1) & (2) of Customs Act, 1969 are proved Therefore in the interest of justice I ordered the respondent to part MI amount of duty and taxes involved as per in the Show-Cause Notice. Moreover I order for the confiscation of seized goods; however the importer can redeem them against under SRO 499(1)/2009 dated 13.06.2009 against fine of 35% which comes to Rs.1.179,598/- and penalty of Rs.500.000/- (five hundred thousand) each on importer as well as on the clearing agent."
3. The appellant filed application for urgent hearing and interim relief supported by affidavit with the main appeal on 13.02.2019, praying that his goods be ordered to be released upon submission of pay order equivalent to imposed fine of Rs.1179598/- and penalty of Rs.500,000/- as security deposit with the Director , Directorate General of Intelligence and Investigation, (Enforcement Wing), Karachi subject to their encashment/return upon decision in the main appeal. The Tribunal after allowing urgent hearing took up the application for interim relief and disposed of f the same on 25.02.2019 in the following manner .
"Foregoing discussion and ratio decided by the Apex Court,. I have no ambiguity in my mind that passing of a interim order in part of working of a judicial system and at the same time being conscious of the issue while taking into consideration the application/implica tion of the order passed by respondent No.3, against which the instant appeal has been filed and decision in which has to be given after having a detail deliberation in the hearing, meanwhile it is just and fit to freeze the impugned order to the extent of consignment under consideration, which is lying in the terminal for clearance. Therefore, I hereby grant application for interim injunction and direct the respondent No.] to release appellant consignment upon deposit of pay orders for Rs.1,679,598/- against the imposed fine and penalty , subject to return/encashment upon decision of the main appeal. The application for interim relief is accordingly disposed off with no order as to costs." (Emphasis supplied)
4. The appellant consultant, upon receipt of the aforesaid order forwarded letter dated 01.03.2019 to respondent No.1 for prompt compliance of the order and for that purpose representation of the importer approached the respondent subordinate for confirmation that in whose name pay order has to be submitted, after two weeks he was informed that the pay order should be prepared in the name of Collector of Customs PMBQ, resultant pay order No. 21438568 dated 13.03.2019 amounting to Rs.1,679,600/- against imposed fine of Rs.1.179,600/- and penalty of Rs.500,000/- was furnished, which was not acknowledged on the pretext that the same is not accompanied with the covering letter , resultant, a letter dated 15.03.2019 was submitted. Despite of the said fact he was asked to run from pillar to post for many days. Thereafter the respondent No.1 and their subordinates, instead of keeping the pay order in safe custody as security forwarded that to the Collector of Customs PMBQ for depositing encashment despite protest in strongest word by the appellant representative that encashment of the security is tantamount to defiance of the order of the Tribunal beside usurpation, but of no avail and the pay order was en-cashed and deposited in the Treasury vide cash No. ABC-863 on 30.11.2019 and delivery of the goods was effected physically to the appellant on 22.04.2019 i.e. after 56 days of the order of the Tribunal. Being aggrieved from the high handedness and defian ce of the order of the Tribunal of/by the respondent No.1 and his subordinates, appellant filed a contempt application dated 20.05.2019 under the provision of Section 194C(8) of the Act to be read with sections 480 and 482 of the Code of Criminal Procedure 1898, which was numbered and respondent No.1 and his subordinates were put on notice for 18.06.2019.
5. Despite multiple hearing between 18.06 .2019 to 17.10.2019 either representative of the respondent No.1 sought adjournment on one pretext and another , mainly on the plea that the person, who has to submit comment on the memo of appeal and contempt application is on leave/busy or the authority who has to sign those is engaged in some other important work and has not signed those and in such manner dragged the decision in the appeal and contempt for almost 04 months. However , on 17.10.2019 he submitted para-wise comments on the contempt application on behalf of the respondent No.1 signed by Deputy Director sans comments on memo of appeal. In the comments on contempt application, it has been submitted that Tribunal has no powers to take cognizance if any of the provisions of Sections 193, 196 and 228 of Cr.P.C. are contravened, nor he has submitted false evidence or had offered intentional insult or caused any interruption during the sitting in any stage of a judicial proceeding as contemplated in section 228. It has further been stated that the appellant had mis understood the whole matter due to misconception and that' respondent had no intention to bring Customs Appellate Tribunal into disrespect at any time as the respondent has high regard and respect for the Tribunal. In regards to the security submitted in the shape of pay order by the appellant categorical admission has been made that the same had been deposited, plea advanced for the said act in the comment s is that under section 202(4) of the Act for the recovery of duty and other levy, the appropriate officer has the same powers which under the Code of Civil Procedure, 1908 a Civil Court has for the purposes of the recovery of an amount due under the decree. Further stated that main appeal is still pending and yet to be decided by the Tribunal, fate of appeal obviously will be spelt out from the order of the Tribunal and averred that it is well settled proposition of law that the proceeding under the Act do not come to an end with the passing of an order . If a reference is filed under section 196 of the Act before the Hon'ble High Court of Sindh, the proceedings are kept alive and are to be regarded as single legal proce edings. For delay in compliance of the order of the Tribunal and delivery of the consignment reason advanced are completion of codal formalities, for deposit/encashment of security deposited as pay order , reason has been given that it is secured in the Government Treasury .
6. The appeal/application for contempt were heard jointly on 17.10.2019, the consultant of the appellant argued the case/application strictly in accordance with the ground enumerated therein and averment made in the application for contempt. No cross objections under Section 194A(4) of the Act have been submitted within the stipulated period of 30 days by the respondent No.1 as stated in para supra, resultant, lost right of cross appeal within the contemplation of section 194A(3) ibid. Non-submission of counter affidavit whether by will or default forfeit the respondent No.1 right to deny assertion made in the affidavit. This proposition of law stands validated from the following judgments of the Superior Judicial Fora reported as (1974) 94 ITR -- 1, 1980 PLC (C.S.) 350 and 1982 PLC (C.S.) 757, 1986 CLC 745 KAR. (1984) 146 ITR 140, (1985) 53 Taxation- I (Trib.), 1986 CLC 1119, 1986 CLC 1408 KAR, 1991 MLD 1243 , PLD 1992 SC 317, 1993 SCMR 662, PLD 1996 Karachi 68, 1986 PLC (C.S.)
560, 2003 PTD 2118. However , on the date of hearing the representative of respondent No.1 relied upon the para- wise comments submitted against application for contempt and averred that those are sufficient and to be considered as para-wise comments on the memo of appeal also, further stated that the order passed by respondent No.3 is correct in fact and law. Hence, same may be maintained and appeal along with application for contempt be dismissed being.devoid of merit/substance.
7. Argument heard and case record perused. Prior to deliberating on the merit on the main appeal for recording decision, it is act to decide application for contempt first and to proceed with it is apt to reproduce provision of section 194C(8) of the Act and sections 480 and 482 of the code of Criminal Procedure from 1898 under which instant application was filed: "194C(8):- Any proceeding before the Appellate Tribunal shall be deemed to be judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the .Pakista n Penal Code (Act XLV of 1860) and the appellate Tribunal shall be denied to be a court for all the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)
480" Procedure in Certain Cases of Contempt:--(1) When any such offence as is described in section 175, section 178, section .179, section 180 or Section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil, Criminal or Revenue Court, the court may cause the offender to be detained in custody: and at any time before the rising of the court on the same day may, if it think fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred rupees and in default of payment to simple imprisonment for a term which may extend to one month unless such fine be sooner paid.
482:- Procedure where Court considers that case should not be dealt with under section 480:- (1) Is the court, in any case considers that a person accused of any of the offences referred to in section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding 200 Rs. should be imposed upon him, or such Code is for any other reason of opinion that the case should not be disposed off under section 480, such Code, after recording the fact constituting the offence and statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same and may require security to be given for the appearance of such accused person before such Magistrate or if sufficient security is not given, shall forward such person in custody to such Magistrate.
(2) The Magistrate to whom any case is forwarded under this section shall proceed to hear the complaint against the accused person in manner hereinbefore provided.
8. A bare reading of section 194C(8) of the Act contemplates that any proceeding before the Appellate Tribunal is a judicial proceeding within the meaning of Section 193 of Pakistan Penal Code Act (XLV of 1860) (PPCA) for punishment for recording false evidence and under the provision of Section 196 ibid for "Using evidence known to be false", whereas under section 228 of PPCA for intentionally causing insult or interruption to public servant sitting in judicial proceeding and it enjoys akin powers as the Civil Court and is empo wered to initiate proceeding for contempt alike to the Civil Court under the provisions of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898). Hence, no ambiguity exist in this regard that the Appellate Tribunal have the same power as of a Civil Court as expressed in Section 194C(8) of the Act. In the comments on the contempt application, the respondent No.1 has asserted that he and his subordinates are empowered to recover the amount of evaded/short paid duty and taxes etc., under the provision of Section 202 of the Act. The said opinion is based on mistaken belief, my finding in this regard is based on two aspects (i) no recovery by respondent No.1 and his subordinate could be made or proceeding for recovery be initiated under the provision of section 202 of the Act, being appointed under section 3A of the Act and delegated power through SRO 486(1)/2007 dated 09.06.2007, which least empowers respondent No.1 and his subordinates under the provision of Section 202 of the Act. (ii) The recovery proceeding under section 202 and Recovery Rules embodied in Chapter XI of the Rules could only be under taken by the authority defined in Rule 133(ix) upon referring by the authority defined in Rule 133(x), which should be equivalent to the rank of Assis tant Collector of Customs, appointed under section 3 of the Act and that also after crystallization of adjudged amount of duty and taxes, fine and penalty through an order-in-original passed by the competent authority under the provision of Section 179, after due process of law i.e. serving of show cause notice as per the contemplation of section 215 issued under the provision of Sectio n 180 and upon attaining finality of that after crossing all the forums where it can be challenged and the decisio n of the last forum i.e. Hon'ble Supreme Court of Pakistan as held in reported judgments 1993 SCMR 39 CBR v. Chanda Motors and 2013 PTD 581 Ghulam Nabi v. FOP of the Honorable Supreme Court of Pakis tan, paras 17 to 22 are relevant and which are : "17-. Word "finalised" is derived from the word 'final" which is defined in Chambers 20th Century Dictionary to mean "last decisive, conclusive, respecting the end or motive of judgment ready for execution-last of series". "Finality" is defined as state of being final completeness or conclusiveness, In Black's Law Dictionary Fifth Edition, word "final" is defined as, last conclusive, decisive, definitive; terminated; and completed." In its used in reference to legal actions this word is generally contrasted with "inter -locatory". Viewed in the light of meanings of the word "assessments" and "finalized", it appears that assessment order as such do not have touch of finality unless all the forums are exhausted in which such orders can be challenged so that the order take the final decision."
18- Legally speaking order of assessment passed by Income Tax Officer is an order of original authority but is not final for the reason that it can be challenged in appeal or revision as the case may be and would be final only when it goes through all the forums and the finding of the last forum shall be binding as conclusive.
19- The question whether appeals and other remedies provided under the law formed part of proceedings or not came up for consideration before the Supreme Court of India in the case of Garikapati Veeraya v. N. Subbiah Choudhry and others reported in PLD 1957 Supreme Court (India.) 448 it is held as per majority opinion that legal pursuit of a remedy , suit, appeal and 2nd appeal are really but steps in a series of proceeding connected by an intrinsic unity and are so be regarded as one legal proceeding. Reference can be made to the case of Commissioner of Wealth Tax v. Vimlaban Mehta reported in (1984) 145 ITR 11, in which it is held that it is well settled that when an appeal is filed against assessment order before AAC the assessment is thrown open and Appellate proceeding constitute a continuation of a assessment proceeding. "
20- in the case of F.A. Khan v. The Gover nment of Pakistan (PLD 1964 Supreme Court 520), question came to for consideration that in the case of dismissal of a Government servant for filing a declaratory suit whether limitation would start from the date of order of dismissal to be reckoned under Article 120 of the Limitation Act or from the date of order of Appellate Authority confirming the first order to be reckoned under Article 38 of the Limitation Act. It is held that such right accrued on the date of dismissal but, where there is an appeal on the date of Appellate order upholding dismissal. It is further held that the legislature when it provided a hierarchy of the Tribunal for the determination of a dispute it is really providing one complete procedure for such determination, proceeding before different T ribunal being only step in this procedure.
21- On the question of construction, in the light of what is stated above, it can be said without fear of contradiction that order passed in original proceedings is not final unless it crosses all the forums set up under that law in which it can be challenged and the order of the last forum would become final. Mr. Rehan Hassan Naqvi, learned counsel for the respondent has submitted before us that there is plethora of case law on the point that even within the frame work of Income Tax law, appeals and other , remedies provided therein formed part of the same proceedings regarding assessment. In this context our attention is drawn to the case of Chattur am and others v. Commissioner of Income Tax, Bihar reported in (1947) 15 ITR 302. In the reported case assesses of partially excluded areas were served with the notices under section 22(2) of the Income Tax Act for furnishing returns. Subsequently Governor of Bihar by notification directed that India Income Amendment Act, 1939, the Income Tax Law Amendment Act, 1940 be deemed to have been applied to the Chotanagpur Division containing partially excluded areas with retrospective effect. Subsequently Regulation 1 of 1941 was also issued by the Governor to remove doubts as to the retrospective applicability of the Act menti oned in the Notification. Assesses were assessed and their appeals were pending when Regulation I of 1941 was issued. It was contended that assessment proceedings initialed and completed against them were invalid and neither the notification nor the Regulation were competent in law to validate those proceedings, it was held by the Federal Court of India, inter alia, that appeals to the Appellate Assistant Commissioner were an integral part of the machinery of assessment and therefore it could not be contended that assessment proceedings were over when Regulation 1 of 1941 was made and the Regulation could not apply to the proceedings covered by those appeals.
9. In the present case of the appellant the impugned order is the first order passed by respondent No.3 within the hierarchy of customs, which has been assailed by the appellant before this Tribunal under the provision of Section 194A(1) of the Act. Hence, that became wide open as per law laid down by the Hon'ble Supreme Court of Pakistan and cannot be construed by any definition/standard as an order , which attained finality against which recovery proceeding could be initiated, resultant not even the officer of Customs, appointed under section 3 of the Act can proceed for the recovery , nor appropriate officer is empowered to refer the case of the appellant to recovery officer for initiating recovery proceeding as contemplated in section 202 and Chapter XI of the Rules. As adumbrated I am in full agreement with the respondent No.1 that upon filing of reference under the provision of section 196 of the Act before the Hon'ble High Court, the order of the Tribunal stand wide open and to be construed as single legal proceeding. However , I failed to unders tand the said line of arguments in the present case it seems that the respondent No.1 is under impression that immediately upon filing reference the order of the Tribunal stand automatically abate, this understanding of the respondent No.1 and his subordina te is based on mistaken belief, section 196 of the Act least expresses as understood interpreted by the respondent No.1 and his subordinate, the order of the Tribunal remain in the field and had to be complied, unless Hon' ble High Court either stays the compliance or suspend that, in the absence of non-availability of both, the order of the Tribunal hold field firmly and had to be complied without any exception. Reference is placed to the memorandum of Ministry of Law bearing F.No. 51/05-Law FTO dated 21.04.2007 held while rejecting the representation of the respondent "it is trite this that the appeal by itself does not suspend the operation of the order appealed against and the said ratio has been decided by the President in numerous representation." and in PLD 1966 SC 1983 Supreme Court held that it is well settled that the operation of a decree, passed by a Court of 1st instance is not automatically suspended, on mere filing of an appeal there from".
10. In the present case this Tribunal through interim order dated 25.02.2019 ordered respondent No.1 and his subordinate in unequivocal terms to release the appellant consignment upon deposit of pay order for Rs.1,679,598/- against the imposed fine and penalty , subject to return/encashment upon decision of the main appeal, meaning thereby that the pay order so deposited by the appellant has be to kept by the respondent No.1 in safe custody as a security "Amanah", of the appellant pledged against imposed fine and penalty for obtaining release of the goods on the order of this Tribunal, which could only be encashed or deposited in the Government Treasury upon issuance of order of the Tribunal against the appellant and in favor of respondent No.1. This Tribunal in the interim order at no place ordered respondent No.1 and his subordinates to release the goods on payment of fine and penalty , literal meaning of which is "the act of giving money for something, the act of paying and something that is paid, if the word "deposit" used by the Tribunal in the order , in consonance/relying with the orders of the Hon'ble High Court of Sindh, wherein the word "deposit" is used for issuance of interim orders for release of goods. The literal meaning of which are "to put money in a bank account, to place specially for safe keeping or as a pledge, deposited in your bank account", confirming that the amount if deposited with the bank or someone, i.e. his not of the bank or the person with whom deposit was made, confirming that both were have no nexus with each other and meaning of these are pole apart, construing the word deposit with the payment is nothing more than absurdity rather mala fide. By depositing the pay order submitted by the appellant for payment by the respondent No.1/his subordinates, admitted in categorical terms in the comments. Hence, usurped the Amanah of the appellant, not permitted in any scheme of law. The respondent No.1 and his subordinates interpreted the order of the Tribunal in such a manner , which prima facie appears contrary to the spirit of the Tribunal's order , reflecting defiance of the order of the Tribunal, such interpretation/attitude of respondent No.1 and his subordinates is tantamount to using evidence known to be false and fabricated, attracting section 196 of the PPCA/section 194C(8) of the Act and warrant proceeding under the provision of Section 480 of the Code of Criminal Procedure 1898. Similarly , delay in effecting delivery of the goods to the appellant said to be due to completion of codal formalities can't be digested, as after order of the Tribunal, no further order can be issued/passed by any authority including respondent No.1 and his subordinates with the exception of compliance promptly of the order of the Tribunal without any let hitch and hindrance, even otherwise, the delay in compliance cannot be endorsed, when we are living in the space age and are availab le with the fastest means of communication, still sticking with the old red tapism and delaying tactic which needs to be discontinued forthwith in the paperless environment. There exist no opinion with the exception of that the respondent No.1 and his subordinates intentionally and willfully committed defiance of the order of the Tribunal beside contempt, warranting proceeding, however , since, this is the first offence committed by the respondent No.1 and his subordinates by usurping the Amanah of appellant and delaying the delivery of the goods, lenient view is taken and respondent No.1 and his subordinates are warned to be careful in future and comply the order of the Tribunal in letter and spirit, any recurrence of this sort shall be dealt severely .
11. Reverting back to the main case, for recording judgment, the primary question needs to be answered is as to whether the respondent No.1 and his subordinates are empowered to carry out search of any premises/warehouse of a transporter directly under the provision of section 163 of the Act, without recourse to the provision of Section
162. Upon perusal of the record of the case, it has been observed by me that the respondent No.1's subordinates carried out the search of the premises/warehouse of transporter namely M/s. Saleem Raza Goods Transport Station Karachi under the provision of Section 163 of the Act, the search That in the case in question the respondent No.1 and his subordinates has carried out the alleged search under the provision of Section 163 of the Act of the premises of Saleem Raza Goods Transport Station on the premises without recourse to mandated requirement of Section 162 ibid., search could only be carried out by the respondent No.1 and his subordinates in case they believe that there is a danger that before a search could be carried out in terms of Section 162, after obtaining a search warrant from the Magistrate, the documents or things or goods liable for confiscation would be removed from the said place, he after preparing a statement in writing of the grounds of his belief and of the goods documents or things for which search is to be made, search or cause search to be made for such goods, documents or things in that place. However no such details of search were provided either to the appellant/transporter or even to this Tribunal, nor any due process of law was ever disclosed. Hence the search on the basis of which foundation of the present case has been laid down was illegal, without lawful authority/jurisdiction and so the subsequent acts carried out by the subordinat es of respondent No.1 and by respondent No.3 by issuing/passing show-cause notice and order-in-original.
12. It is now a well settled proposition of law that the search carried out in terms of section 163 of the Act without recourse to the mandatory provisions of section 162 of the Act, the same is illegal and any case made out on the basis of goods/documents seized on the basis of such search cannot be used against the person from whose premises the same have been obtained. The following case law are relevant and supports our contention and renders the whole case made out against appellant as illegal, mala fide, tainted with colorful exercise of use of unfair discretion and liable to be vacated, 2003 PTD 2037 M/s. Ihsan Yousaf Textile Mills v. FOP, 2004 PTD 2952 M/s. N.P. Water Proof Textile Mills (Pvt.) Ltd., v. FOP, 2005 PTD 1933 The Collector of Sales Tax and Central Excise v. M/s. Mega Tech (Pvt.) Ltd., 2003 PTD 1034 Federation of Pakistan v. M/s. Master - Enterprises (Pvt.) Ltd. PLD 1991 SC 630 Collector of Customs v. Muhammad Mehfooz , 2009 PTD 1083 and M/s. A.M.Z.
Spinning and W eaving Mills (Pvt.) Ltd. v .FOP .
13. Indeed the respondent No.1. and his subordinates are appointed and designated as "Officer of Customs" under Section 3A of the Act and they derives power for functioning within the specific sphere as contemplated in S.R.O 486(1)/2007 dated 09.06.2007 said to be within the territory of Pakistan for thwarting the act of smuggling but this doesn't mean that they can intercept and detain the goods meant for transportation either within the city or country .
Their jurisdiction in principle is restricted to the territory not falling within the ambit of Sections 9 and 10 of the Act and beyond 5 kilometer of the border of India and Iran in terms of Section 177 of the Act, to be read with SRO No. 118(1)/83 dated 12.02.1983. The goods of appellant were imported from the place/ports defined in sections 9 and 10 of the Act after completion of codal formalities by the officer of customs appointe d under section 3 of the Act and were posted at Port Muhammad Bin Qasim after passing of valid assessment order under the provision of Section 80 and Rule 438 and thereafter payment of the leviable duty and taxes on the strength of the assessment order , consequent to which clearance order under the provision of section 83 and Rule 442 of the Act/Rules was passed akin to the assessment order in exercise of the powers vested upon them through SRO 371(1)/2002 dated 15.06.2002, resultant not brought into Pakistan from the Ports other than defined in Sections 9 and 10 of the Act nor falls within the ambit of condition laid down in aforesaid SRO 118(1)83 dated 12.02.1983, hence cannot be either detained or seized on the pretext of smuggling falling within the ambit of definition given in section 2(s) of the Act.
14. 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/summons in writing as contemplated in section 26(2) and clause (a) of Section 26A of the Act, they are empowered to look into every aspect 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 observatio n and forward that to the importer for clarification, if the reply fail to settle the issue, prepare a report based on their finding and forward that to the Collector of Clearance Collectorate through Director , who after going throug h the said report if agrees with its finding, ordered his subordinates to frame contravention report for onward dispatch to the respective Collector of Customs Adjudication annexed with a covering letter signed by him. The Collectorate of Customs Adjudication for issuan ce of show-cause notice under Section 180 of the Act, and passing of order-in-original by the authority defined in Section 179 ibid. The respondent No.1 and his subordinates despite havin g no powers considering them designate d authority of conducting audit under the provision of section 26(2) of the Act Post Clearance akin to the officers of DGPCA and run a parallel department for the said purpose in negation of the provision of section 3DD of the Act and SRO 500(1)/2009 dated 13.06.2009. The respondent No.1 and his subordinates despite non entity unde r the provision of section 3DD, through which formation of DGPCA was made by the legislature through money bill usurped the power of their officers delegated through SRO 500(1)/2009 dated 13.06.2009 assumed powers on their own of officials of DGPCA and conducted the Audit Post Clearance of the GD of the appellant under Section 26(2) and exercised the powers specifically delegated to the officials of the DGPCA. Neither respondent No.1 nor his subordinates 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. Addition ally, the respondent No.1 and his subordinates 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.1 and his subordinates acted without power/jurisdiction, in conduction of audit of even sales tax and income tax as evident from the contents of contravention reports, show-cause notice. 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 by any authority or alleged department of the FBR, if it is left to be perpetuated, anarchy will prevail within the different organs of FBR to encroach powers/jurisdiction of each other , despite having no lawful authority/jurisdiction. This type of intention/act cannot be validated under any circum stances and has to be crushed in the initial stages for maintaining the integrity and sanctity of the different sovereig n 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.1, for determination of short levied/Collected amount of Customs 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 coram non judice . The superstructure built thereupon ought to be crumble down no matter how strong it may be.
15. That it is also of vital importance to abreast to the Hon'ble Tribunal that the respondent No.1 and his subordinates have no powers under the provision of Sections 32, 79(1) and 80 of the Act through SRO.
486(1)/2007 dated 09.06.2007 issued by the Board delegating the powers to the respondent No.1 and his subordinates. Intercepting consignment after clearance on the pretext of mis-dec laration of description, PCT and value and importability by the respondent No.1 and his subordinates suffer from lack of jurisdiction and power , rendering their act as transgression to the vested powers under the respective section otherwise not vested to them by the Board. In these circumstances the impugned detention/seizure notice, contravention report and show- cause notice and all the subsequent proceeding deems to be illegal and void. Nobody is allowed to act beyond his jurisdiction and all the acts or deeds beyo nd the scope of jurisdiction are null and void in the eyes of law. Reliance is placed on the reported judgments 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.
16. The respondent No.1 and his subordinates could only exercise powers in the consignment of appellant and other importers on the pretext of smuggling defined in Section 2(s) of the Act and a case under the aforesaid provision has to be initiated, only then they are empowered to seize the goods/consignment under the provision of Section 168(1) of the Act, powers of which have been delegated to them under column 3 of the SRO. The contravention report and show-cause notice is silent in this regard, rendering the search, detention, seizure, preparation of contravention report and impugned show-cause notice without lawfu l authority/jurisdiction, hence, ab initio null and void and as such coram non judice . Mere preparing of detention/seizure notice and notice under Section 171 of the Act is not enough, these have to be served within the meaning of contemplation of Section 215 of the Act. No notice under the provision of Sections 186, 168(1) and 171 of the Act has been either served on appellant or transporter . This lapse is fatal as non-serving the notice render the whole proceeding infested from legal infirmity and as such of no legal effect as held by Superior Judicial Fora in umpteenth reported judgment e.g. PTCL 1994 CL 22, 1983 PCr.LJ 620, 1983 PCr.LJ 623, 1983 CLC 786, PTCL 1983 CL 47, 1987 PCr.LJ 1413, 1987 PCr .LJ 1091 and 2004 PCr .LJ 1958.
17. The respondent No.1 and his subordinates also take cognizance in the matter of sales tax and income tax despite of the fact that they are not appointed/designated an "Officer of Inland Revenue" under section 30A of the STA and Section 230 of the ITO under which Directorate General of Intelligence and Investigation Inland Revenue has been designated as officer of Inland Revenue and they had been delegated powers under different section of the STA through S.R.O.776(1)/201 1 dated 19.08.201 1 and Section 207 of the ITO. Resultant, respondent No.1 and his subordinates usurped the power of Directorate General of Intelligence and Investigation Inland Revenue.
Hence, acted without powers/jurisdiction, rendering their act of taking cognizance in the matter of sales tax and income tax, detention, seizure and subsequently preparation of contravention report in the said matter null, void and ab-initio and as such "coram non-judice " as held in reported judgment Major Syed Walayat Shah v. Muzaf far Khan and 2 others (PLD 1971 SC 184), Omer & Company v. Controller of Customs, (Valuation) : (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others PLD 2001 Supreme Court 514 Land Acquisition Collector , Noshehra and others v. Sarfraz Khan and others , 2006 PTD 2237 Pak Suzuki Motor Company Ltd., Karachi v. Collector of Customs Karachi , 2009 PTD (Trib.) 1996, 2010 PTD (T rib.) 832 and 2014 PTD 1733 Waseem Ahmed and others v . FOP and another .
18. The respondent No.3 have invoked in the show-cause notice Sections 33, 34, 36 of the STA and Section 148 of the ITO without going through their expressions, Section 33 of the STA is not a charging Section instead a section containing penal clauses for the contrave ntion of the charging/relevant Section of the STA, Section 34 is for default surcharge, to be paid on the adjudged amount of Sales Tax by the competent authority after due process of law and no provision of Section 36 is availab le in the act as on todate. Section 148 of the ITO is also a machinery Section outlining the procedure for collection of Income Tax at import stage by the authorities referred therein. No show-cause notice can be issued under these sections. Issuance of show-cause notice by invoking irrelevant/non- existent sections. Renders it, ab-initio, null and void and as such of no legal effect as held in reported judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275 , D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593 Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 1992 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898 , Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs . That alike respondent No.1, respondent No.3 issued show-cause notice under the provisions of STA/ITO, when he is also not designated an "Officer of Inland Revenue" under the provisions of Section 30 of the STA and Sections 207 and 230 of the ITO and as such is not empowered to issue show-cause notice under Section 11 of STA and Section 162 (1) not 148 of the ITO. Therefore respondent No.3 equally usurped the power not vested with him, rendering the show-cause notice and order-in-original without power/ jurisdiction, hence void and ab-initio and coram non judice as held in reported judgment referred in para 11 supra .
19. The delivery of the consignments by the terminal operator is being effected upon receipt of online gate out message on their user ID home page after passing of assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules, which are pre-requisite, which was dated 19.07.2018. Order passed by the competent authorities defined in Section 2(a) of the Act in exercise of the powers conferred upon them through SRO 371(I)/2002 dated 15.06.2002. This orders was/is appealable order as per the contemplation of Section 193(1) of the Act, verbatim of which is reproduced here-in-under: Appeals to Collector (Appeals): (1) Any person including an officer of Customs aggrieved by any decision or order passed under sections 33, 79, 80 and 179 by an officer of Customs before below the rank of Additional Collector may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order .
20. Upon perusal of GDs of the appellan t, I have observed that these pertains to the period of 11.05.2010 and subsequent, against each GD valid and legal assessment/clearance orders were passed under the aforesaid provisions of the Act/Rules. That cannot be disturbed by any authority for the purpose of preparing contravention report and adjudication proceeding. The only course available with the respondent No.1 was to challenge the said order before Collector of Customs, Appeal under section 193 of the Act in exercise of the powers delegated upon him through SRO 486(I)/2007 dated 09.06.2007. In the filed appeal the respondent No.1 is empowered to incorporate all the apprehension, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, Appeal 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 have not been either not levied or short paid. He is empowered to issue show-cause notice to the importer (appell ant) as expressed in 3rd proviso of section 193A (3) of the Act. Instead of the adhering the prescribed method available in the Act, the respondents Nos.1 and 3 reopened the assessment order dated 19.07.2018 under section 195 of the Act in the absence of availability of power as the power vested therein are for either Board or Collector . Both figures nowhere in the provision of the aforesaid section, rendering the show-cause notice without power/jurisdiction and as such ab-initio void. The superstructure built there upon is as well ab-initio void. It is to be noted when the right of appeal has been accorded to the respondent No.1 by the legislature in the provision of Section 193 of the Act, the provision of Section 195 is 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 Office 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 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" and 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 $3 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 were dismissed in circumstances. "It is also settled proposition of law that in the presence of an appealable order , fresh order cannot be passed even through issuance of show-cause notice under section 180, while exercising power s under the provision of Section 179 ibid. The said act is piling upon yet another order on the existing appealable order not permitted under law as held by Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 M/s. Smith Kline French v. Pakistan that "once an order is passed which attain finality due to non-filing of appeal within the stipulated period of 30 days, the same cannot be subject to a show-cause notice due to limitation and the transaction stood passed and closed and cannot be disturbed. For reaching at the decision I have gained strength from the reported judgment 1989 MLD 4310 M/s. World Trade Corporation v. Central Board of Revenue , wherein their lordship of High Court held that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue 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 in the instant case by the 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 respondents Nos.3 and 4 for piling upon an existing appealable order are without lawful authority and jurisdiction and as such void and ab initio and of no legal ef fect.
21. I have noted with concern that the respondent No.1 implicated and the respondent No.3 charged appellant for mis-declaration of description, PCT Heading and value under the provision of Section 32 of the Act merely on the basis of assumption presumption that the appellant transmitted GD on the basis of erroneous description and PCT, in order to hoodwink the Customs and to evade the amount of duty and taxes. I am at loss to digest the said line of arguments as in conduction of examination appellant has no part to play, instead had to be carried out by the subordinate of respondent No.2 with the assistance of Officials of Terminal Operator , independently and without any influence as per the expression of Section 198 and Rule 435 ibid. Whereas, passing of assessment/clearance orders under sections 80 and 83 and Rules 438 and 442 of the Act/Rules rest with the sole and exclusive domain of the Customs Officer listed at Serial Nos. 30 and 33 of the SRO 371(1)/2002 dated 15.06.2002. The Officials conducting the examination confirmed the declarations and assessing officers passed assessment/clearance orders while accepting' the declaration as true and correct. If it is presumed as stated in the show-cause notice that the alleged clearance of the goods imported by appellants were on the basis of erroneous description and PCT that could had not been possible unless these officials were having hands in gloves with the appellants. Meaning thereby that they are standing on the same pedestal with the appellant. Ironically , no charges have been levelled under Section 32(2) against those Officials, as of appellant, confirming that the case in question is of inadvertence, error, omission or misconstruction falling within the ambit of Section 32(3) of the Act, the appropriate authority to adjudicate such type of cases rest with the Principal Appraiser in terms of Clause (ii) of Serial No.3 of SRO 371(I)/2002 dated 15.06.2002, not respondent No.3 rendering the show-cause notices and order-in-original without power/jurisdiction hence, ab-initio void and as such coram non judice .
Additionally , it has been established that the appellant has been met out with partial treatment, which is tantamount discrimination not permitted under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial Fora in reported judgment 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts have observed that "there exists no power to target incidence of tax in such a way that similarly placed person be dealt not only this similarly , but discriminatingly". Whereas, in reported judgment 2005 SCMR 492 the Hon'ble Supreme Court held that "A facility allowed to someone and denied to other is discrimination". The Apex Court further held in reported judgment 2010 SCMR 431 that: "Doctrine of equality , as contained in Art.25 of the Constitution, enshrine golden rules of Islam and states that every citizen, no matter how high so ever, must be accorded equal treatment with similarl y situated persons --- State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class --- In fact all legislations involve some kind of classification whereby some people acquire rights or stiffer disabilities whereas others do not --- What however , is prohibited under principle of reasonable classification, is legislation favouring some within a class and unduly burdening others --- Basic rule for exercise of such discretion and reasonable classification is that all persons placed in similar circumstances must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not of fend spirit of Art.25 of the Constitution."
22. In order to resolve the issue in hand to its logical conclusion, in regards to description and PCT heading of the imported goods, which were declared and cleared by the appellant and respondent No.2 as Bicycle Rim Spokes falling under PCT Heading 8714.9200 as against formed opinion by the respondent No. 1 and his subordinates, motorcycle rim spokes falling under PCT Heading 8714.1020, a query was put to the representative of the respondent No.1 that for reaching at the said opinion/decision, whether any expert opinion was sought from either the assembler of the motorcycle or dealers of the motorcycle spare parts, the reply was in negative. Hence, yet another query was made that whether samples have been retained, reply to this was also in negative, this flabbergasted me that how respondent No.1 levelled the allegations and respondent No.3 held, when entire consignment had been cleared and delivery of the same has been given to the appellant, even few samples were not left, enabling this Tribunal to seek expert opinion. Confirming that the respondent Nos.1 and 3 simply asserted that they were liable to custom duty @ 35% ad-valorum being classified under PCT Heading 8714.1020, validated further from the fact that the show-cause notice and order-in-original are silent to the effect, that how they reached on the opinion that the goods imported by the appellant were motorcycle rims spokes as against imported/assessed bicycle rim spokes. I have observed that the respondents Nos. 1 and 3 clearly and categorically made observation regarding the said fact in callous manner and failed to perform their duties with diligence by looking into all aspects of the case rather than proceeding in a pre-determined and rebotic manner . Investigation should had been transparent and fair. Careless investigation not only destroys the fabric of the case rather undermine the confidence of the public, which is apparent in the instant case. Resultant in the given circumstances of the case I have been left with no other option except to hold in unequivocal terms that it is a case of no evidence as held in reported judgment 1991 PTD 551 that "Any action which is based upon no evidence is not permitted by law and in 2006 PTD 2190 that "a mere assertion of the prosecution is no evidence" and the whole case is being made out on the basis of conjectures and fishing inquiries which is not permitted under law as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1992 Supreme Court 485. The Assistant Director Intelligence and Investigation v. B.R Herman Mohattas (Pvt.) Ltd., Karachi that "it cannot make a rowing or fishing inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality". The said principle was subsequently held by the Superior Judicial Fora in reported judgment (1957) 32 ITR 89, (1967) 64 ITR 516, I.
T.As. 2400/2401/KB/91-92, 1995 PTD (Trib.) 580, (1995) PTD (Trib.) 1152, (1982) 1381 ITR 742, 1993 PTD 206, 1997 PTD (T rib.) 2209 and 2013 PTD (T rib.) 353 .
23. Before parting with the judgment, it is of paramount importance to adduce that whether respondent No.3 was justified in ordering confiscation of the goods and imposing fine in lieu of redemption of the goods under the provision of section 1'81 of the Act and SRO 499(1)/2009 dated 15.06.2009, essence and spirit section 181 needs to be understood, expression of which read as under:
181. Option to pay fine in lieu of confiscated goods.-Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer think fit.
[Provided that the Board may, by an order; specify the goods or class of goods where such option shall not be given: Provided further that the Board may, by on order , fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of Section 15 or of a notification issued under section 16 or any other law for the time being in force.)
Explanation:- Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods.
24. Succinctly speaking, the adjudicating authority/respondent No.3 is empowered to order a confiscation of the goods, which are lying in the port/terminal and yet not released, contravention of the provision of the Act/Rules and Regulation framed there under against which has been framed by the competent authority prior to passing of assessment order uncle, the provision of Section 80 and Rule 438 of the Act and against which show-cause notice has been issued and the adjudicating authority upon reaching at the conclusion after providing an opportunity of hearing to the importer (appellant) that he is involved in an act of mis-declaration within the meaning of section 32(1) and (2) is empowered to pass an order under the provision of Section 179 for the confiscation of the goods and thereafter giving an option to the importer to obtain release of those subject to payment of imposed fine as contemplated in section 181, equivalent to the pitch notified by the Board for the goods primarily , if imported in violation of the provision of Section 15 or of a notification issued under section 16 of the Act. However , in case the goods are released (out of charged) by the customs after passing of clearance order under the provision of section 83 and Rule 442 on the strength of valid assessment order for levy of duty and taxes passed by the authority defined in section 2(a) under the provision of section 80 and Rule 438 in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002, cannot either be confiscated or fine can be imposed as per the contemplation of section 181 of the Act, by virtue of the fact that the goods of the appellant. In the present case of the appellant, the goods were not lying in the port/terminal, instead were released after passing of valid assessment/clearance order under the provision of sections 80 and 83 and Rules 438 and 442 of the Act/Rules, resultant, those cannot be ordered to be confiscated, nor fine can be imposed for redeeming those, being not in control of customs, nor imported in violation of motion 15 or a notification issued under section 16 of the Act if confiscated or fine is imposed i.e. in nullity/derogation of the provision of section 181 of the Act. Hence, cannot be validated, therefore, I hold that ordering confiscation of the goods of the appellant and imposition of fine have no warrant of law .
25. In deciding the subject case, I have given anxious consideration to the arguments of the rival parties and perused the impugned order , the relevant provisions of law, the case law referred specifically the interpretation of law, legal propositions and observations made thereon and infield ratio decidendi observed by the Superior Courts, I, have reached to the irresistible conclusion the appellant has been needlessly dragged into the litigation by the respondent No.1 despite not warranted under law. I hereby cancel the detention/seizure notice, and contravention report framed by respondent No.1 and vacate the impugned show-cause-notice, and set aside the orders-in- original passed against the appellant by respondent No.3 as ab-initio, null and void. Appeal is allowed and the contempt application is disposed off accordingly . The Respondent No.1 is ordered to return the amount furnished by the appellant which as per averment of Respondent No.1 "secured in the Government Treasury".
26. Order passed and announced accordingly , with no order as to cost.