JAHANZAIB WAHLAH, MEMBER JUDICIAL-III .----Through this order , I intend to dispose off appeal bearing No.K- 1512/2018 directed against Order-in-Original No.1213991 dated 30.10.2018 passed by Additional Collector of Customs, (Adjudication-II), Karachi (Respondent No.3).
2. Briefly fact of the case are that, the appellant is a commercial importer of motorcycle parts, who during the course of his business activities entered into contract with M/s. Chonguing Vehicle Imports and Exports Co., Ltd., China for import of 23900kgs of motorcycle parts, duly registered with Habib Metropolitan Bank, Karachi on 19.04.2018 vide No.HMI3C/01 1/05/92. The beneficiary in fulfillment of that shipped those through invoice No.N356PK180410-2 dated 11.04.2018 and B/L No. COAU-706074996 dated 04.05.2018 inscribing therein that the goods are packed in 1448 cartons and stuffed in 1x20" container . The appellant upon receipt of shipping documents delivered those to his clearin g agent M/s. Khurram Brothers, Karachi CHAL No. 618 for transmitting Goods Declaration (GD) 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 Customs Computerized System (CCS) deposited upfront duty and taxes of Rs.2,251,431.00 vide cash No. C-KAPE-007529 on 12.06.2018, consequent to which GD was numbered as KAPE-HC-21786 of even date.
The assessing officer upon receipt of GD on his workstation instead of completing the assessment under section 80 and Rule 438 of the Act / Rules, opted to get the goods examined first, to proceed with after adducing his opinion/reasoning for obtaining physical verification, transmitted that to the Deput y Collector of Customs, Group- VII, MCC of Appraisement-East (Respondent No.2), who gave his assent and referred that to the Deputy Collector of Customs, Examination, who marked that to the Officials of his choice selected as per devised/adopted criteria, who carried out physical verification as contemplated in Section 198 and Rule 435 ibid. Wherein, the goods were found in accordance with the declaration in all aspects and report so prepared was uploaded in the reservoir of GD sans any contradictory observation. The Assessing Officer upon appearance of that on his workstation, cross- checked that with the declaration transmitted under Section 79(1) and Rule 433, uploaded documents forming part of the declaration as defined in section 2(kka). Since, he was confident that nothi ng contrary to the declaration is apparent, he passed assessment order dated 19.06.2018 with the application of valuation ruling/value available in data base maintained by PRAL under Rule 110 of the period given in Rule 107(a), evident from his adduced observation reading as " ER & VR /assessed in the light of ER/VR/Data etc." in assessment note of each imported/assessed items. Thereafter transmitted view message of even date for payment of Rs.1,422,277.00 towards additional amount of duty and taxes, which were paid by the appellant on 05.07.2018, consequent to which inbuilt authority of the CCS passed clearance order dated 05.07.2018 under the provision of Section 83 and Rule 442 of the Act/Rules. When the clearing agent of the appellant approached terminal operator for obtaining delivery of the cleared goods, he was confronted with the fact that the Principal Appraiser (R&D) MCC of Appraisement- East (Respondent No. 1) has put an hold on the GD of the appellant, resulting in detention of the goods as per the contemplation of Section 186 of the Act. The clearing agent of the appellant rushed to the office of respondent No.1 and asked him for reasoning for putting an hold after out of charge of the consignment. His answer shocked the clearing agent, which was that he has a credible information that the appellant has committed an act of misdeclaration, not detected during the course of examination by the official and so by the assessing officer at the time of passing assessment orders. Hence, he is desirous to get the goods re-ex amined, on which agitation was tendered in strongest possible manner that neither he is empowered to put an hold on GD/detained consignment, nor either order/ obtain re-examination of the consignment of the appellant, which has already been cleared (out of charge) under the provision of section 83 and Rule 442 by the competent authority on the strength of valid assessment order passed under section 80 and Rule 438 by the authority defined in section 2(a) of the Act , in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002 in the absence of availability of enabling provision in the Act. The respondent No.1 put a deaf ear on the submission of appellant clearing agent and adamantly created re-examination, which was conducted and report so prepared was once again uploaded in the reservoir of GD, on the strength of which the assessing officer passed reassessment order dated 11.07.2018 for levy of duty and taxes, while adducing remarks in the assessment note of each item, available in column "AO remarks in fact No.(viii) of the memo. of appeal and in exhibits L to L17 at pages 50 to 84". On the strength of the same second view message for payment of Rs.1,734,398.00 towards further additional amount of duty and taxes was transmitted. The appellant restraint from paying that, in the light of the fact that in an identical case, where he paid the second communicated amount of duty and taxes, despite illegal and ab-initio, only for saving himself from the container detention/rental and terminal demurrage/storage charges accumulat ing mani-fold with each passing day. The respondent No.1, refused to lift the hold. Hence, appellant decided to wait for the next move of respondent No.1 adopt the policy of wait and see for waiting respondent No.1, which came into light, in the shape of contravention report framed by him on the basis of the reassessment order dated 11.07.2018 stating inter-alia that the appellant mis-declared, the description, quantity , PCT heading and value attracting the provision of Section 32(1)(2) of the Act, punishable under clause 14 of Section 156(1) ibid read with SRO 499(I)/2009 dated 13.06.2009 which was transmitted through Deputy Collector (R&D), who referred that to Additional Collector , Law , who offer after assenting transmitted to the respondent No.3. On the strength of which, he issued show-cause notice dated 16.07.2018 containing the same facts and the contravening provisions of the Act, as were narrated in the contravention report.Appellant advocate submitted a befitting reply dated 31.07.2018, against which she sought comment from respondent No.1, subsequently received, no copy of that was supplied to the appellant for submitting rebuttal/ rejoinder despite mandated under law. The respondent No.3, thereafter passed order dated 30.10.2018 without properly appraising the fact and proposition of law, through which she held the charges established as levelled in the show-cause notice and ordered confiscation of the goods, subject to redemption of those on payment of 20% fine of Rs.707 ,527.00, imposed penalty of Rs.300,000.00 and the amount of duty and taxes worked out by the assessing officer vide reassessment order dated 11.07.2018 on the order of respondent No. 1. Paras 10 to 12 are relevant and are reproduced here-in-under for the purpose of easement: "10- After detail examination of the fact of the case, the undersigned is of the view that R&D being the watch dog of the Collectorate, has been vested with the poweis to do any sought of inquiry and investigation in case of any credible information received under sections 32, 80 and 186 of the Act read with Rules 109, 438 and 442 of the Customs Rules, 2001. Section 168 empower an appraiser or principal appraise d to detain any goods pending inquiry or investigation and Section 80(2) and (3) empowers the custom officer to check goods declaration filed by the respondent before as well as after release of the goods and can reassess the GD. In this particular case, though the automated system of WEEOC assigned the gate out role to the GD after reassessment but it was still not cleared by the R&D Section, of the Collectorate, which had applied a hold at terminal on the GD in fear of anticipated automated clearance. Since, the importer had accepted the reassessment done by R&D and paid the additional amount without any protest. It had practically accepted the mis-declaration and as such R&D was legally bound to detain the consignment and prepared contravention report against the importer , specially in the presence of 03 other consignments of the importer having exactly identical nature of mis-declaration.
11- The plea of the importer that the power of adjudication pertains to Collecto r stands no where as the word "involved in the section connotes amounts of duty and taxes short paid/evaded. The amount short paid/evaded by the importer on the offending goods mentioned in show-cause notice and asses s at S.No. 13-18 of GD , in the instant case is Rs. 17,34,398.00 which is within the jurisdiction of Additional Collector and therefore correctly sent to undersigned. It is also important to mention here that total amount of duty and taxes levied in this GD is Rs.47,89,579.00 out of which importer had paid an upfront duty of Rs.2,251,431.00 paid on 12.06.2018 + 1st additional amount of Rs.14,27,277.00 paid on 05.07.2018 while the balance amount of Rs. 11,10,871.00 is yet to be recovered. The amount of duty and taxes of Rs.17,34,398.00 as shown in the show-cause notice is actually the amount of duty and taxes importer wanted to evade on the offending goods mentioned at S.No. 13-18 of GD and have an offending value of Rs.2,021,507. 00 and on which redemption fine is to be levied under SRO 499(1)/2009 dated 13.06.2009, if the charge establishes.
12- Finally , the undersigned agree with the contention of the department that the importer has clubbed a bunch of different item with manipulated description under single assessable value i.e. US$. 1.45/kg weighing 9500 kg as a single item against PCT heading 8714.1090 as mentioned at Sr. No. 5 of the GD. The detected item by virtue of actual description did not cover under the declaration of the importer and are classifiable under PCT heading, which attracts additional custom duty besides statutory customs duty and are assessable on much higher value as compare to the value of US$ 1.45/kg, thus the importer by manipulating the description, classification and weight of the item attempted to deprive the government from its legitimate revenue to the tune of Rs.1734,398/-. The payment of additional duty and taxes by the importer after assessment by the Group and R&D without protest is a clear indication of the fact that the importer has confessed and accepted his crime of mis-declaration and evasion of duty and taxes. It is therefore, concluded that the charges levelled in the show-cause notice stands established.
Accordingly , the offending goods are confiscated under clauses 14 and 14A of Section 156(1) of the Customs Act, 1969 for violation of provision of Sections 32(1), 32(2) and 79(1) ibid. However , an option is given to the importer to redeem goods under section 181 of the Customs Act, 1969 on payment of fine equal to 35% of the value of the offending goods to the tune of Rs.707,527/- (ascertained value of impugned goods of Rs.2,021,507/- (subject to the condition that the same are otherwise importable as per Import Policy Order in vogue as prescribed udder SRO No. 499(I)/2009 dated 13th June, 2009, in addition to any other leviable duty and taxes thereon. A penalty of Rs.300,000/- (Rs. Three hundred thousand only) is also imposed under clause 14 of Section 156(1) of the Customs Act, 1969 on the importer ."
3. The appellant preferred 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 objections under Section 194A(4) of the Act have been filed within the stipulated period of 30 days by the respondent No.1, resultant, lost right of cross appeal within the contemplation of subsection (3) of aforesaid section. However , on the date of hearing representatives of respondents Nos.1 and 2 contended that the order passed by the respondent No.3 is correct in fact and law as evident from paras 10 to 12 of the order , which are self explanatory and proves the guilt of the appellant. Hence, same should be maintained an appeal be dismissed as of no substance and legal ef fect.
4. Rival parties heard and case record perused. It is just and proper to decide the vital aspects that as to whether respondent No.1 is empowered to put an hold on the GD /detain the consignment under the provision of Section 186 of the Act, which has been allowed to be released after passing of valid clearance order under the provision of Section 83 and Rule 442 on the strength of assessment order passed by the authority defined in section 2(a) under section 80 and Rule 438 of the Act/Rules, in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15,06.2002. The respondent No.3 in para 10 of the order held that, that the respondent No.1 and his subordinates are empowered to put an hold on GD/detain the consignment in terms of section 186, upon having credible information of mis-declaration falling within the ambit of section 32 of the Act. Upon perusal of the record of the case, show-cause notice and impugne d order , alleged credible information is not visible, instead confirmation to the effect is available that the consignment of the appellant was cleared after completion of codal formalities, i.e. conduction of examination, uploading of requisite documents in compliance to view message transmitted to him under Rule 437 and assessment order dated 19.06.2018, these exercises were carried out by the customs functionaries independently without any interaction either with appellant or his clearing agent. The said fact leave no occasion for the respondent No. 1 or his subordinate to put an hold on the GD/detain the consignment of the appellant under section 186 of the Act. Notwithstanding to the formation of R&D, otherwise illegal, being formed in the absence of availability of enabling provision in the Act, empowering Collector of Customs, to form/establish the said cell, parallel to Directorate General of Intelligence and Investigation-FBR (watch dog) under the provision of 3A of the Act and delegation of power to its officials through SRO 486(1)/2007 dated 09.06.2007. When Collector of Customs is not empowered to form any section or cell on his own, similarly not empowered to delegate powers for functioning to the officers of the said cell/section. For safe guarding of the interest of Government, proper mechanism is available in different relevant sections of the Act. Therefore, any action taken should and ought to be within the devised frame work, not on the basis of personal understanding/opinion having no warrant of law .
5. For detention of any consignment by the authority empowered under entry 92 of SRO 371(1)/2002 dated 15.06.2002, adherence of expression of Section 186 is mandatory , which read as: 186: Detention of Goods pending payment of fine or penalty:-
(1) when any goods or fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or pending any inquiry or investigation, in respect of any goods such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed.
(2) when any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any goods belonging to the same owner pending of such fine or penalty .
Upon conscientious analysis of Section 186, it is observed that the said section comes into play during the course of imports, i.e. if any case has been adjudicated by the competent authority agains t an importer and through which he held the charges established as levelled in the show-cause notice and imposes fine and penalty , which importer has not paid or any inquiry or investigatio n in respect of any goods is under way for imposition of fine and penalty .
The empowered officer can detain forthcoming consignment of the same owne r/importer till the time fine and penalty are paid. The case of appellant is that against him, no order is infield, through which fine/penalty has been imposed upon him and that has not been paid or order so passed has not been assailed by him before the forum expressed in the Act. Neither any inquiry or investigation in respect of any of his imported consignment sans the instant is under way for decision for imposition of penalty . Resultant, his lawful imported/declared consignments after payment of leviable duty and taxes on the strength of assessment order passed by the authority under Section 80 and Rule 438 of the Act/Ru les cannot be detained under any pretext by any officer of customs, respondent No. 1 is not exception as held by the Hon'ble High Court of Sindh in its judgments reported at 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 3 others that "authorities could detained such goods in respect of which inquiry or investigation was pending and not the good which had been or were been imported by a person. The subsequent imported goods belonging to a same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remained un-paid. By no stretch of imagination all subsequent import can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In out opinion no such action is permitted under this provision. The respondent are only authorized to take action for issuance of detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against the person. The procedure and mechanism provided Section 202 of the CA, 1969 is entirely independent of any action taken in terms of Section 186 of the Act. It is not the case of respondent that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's of even the goods covered by the instant petition and thereafter detention notices have been issued. With this the Hon'ble High Court of Sindh declared the detention of the consignment without lawful authority by holding that provision of Section 186 of the Customs Act, 1969 did not empowers the authority to do so" and 2015 PTD 560 Messrs O.S. Corporation v. FOP and others, "where no fine or penalty has been imposed or even under consideration the provision of Section 186 are not relevant --- the authorities acting on a hunch have detained goods as the exit gate, even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totally contrary to the provision of the Act, 1969". Hence, in categorical terms I hold that putting an hold on GD/detaining of consignment of the appellant by the respondent No.1 is not only without lawful authority even jurisdiction and patently in derogation Section 186 of the Act and the law laid down by the Superior Judicial Fora.
6. The legislature through a money bill formed/established the Directorate General of Post Clearance Audit (DGPCA) by inserting 3DD in the Act and their officers have been delegated powers by the Board through SRO 500(I)/2009 dated 13.06.2009 for conducting audit under section 26(2) of the Act, of the importers books of account maintained under Section 211 after serving, notice/summon under clause (a) of Section 26A ibid, they are empowered to look into, every aspects of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 and Rule 438 of Act/Rules and prepare audit observation and forward that to the importer for clarification, if the reply fails to settle the issue, frames contravention report and forward it to the Clearance Collectorate, which onward forward to the respective Collectorate of Customs Adjudication for issuance of show cause notice under Section 180 of the Act, and passing of order-in-original by the authority defined in Section 179 ibid. The 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) while exercising the powers specifically delegated to the officials of the DGPCA. Neither respondent No.1 nor superior/subordinates are empowered to encroach the sovereign jurisdiction of DGPCA under any circumstances, as this will render the formation of DGPCA by the legislature, Section 3DD of the Act, and SRO 500(1)/2009 dated 13.06.2009 as redundant. Additional ly, 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 conducting the audit of sales tax and income tax as evident from the assessment orders, containing the amount of sales tax and income tax rendering the act of conduction of audit and framing of contravention report ab-initio, null, void. It has been observed by me with great concern that respondent No.1 and his subordinates under the patronage of their superior are running a parallel department to the DGPCA and Directorate General of Internal Audit. This is not permitted under law, 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 circumstances and has to be crushed in the initial stages for maintaining the integrity and sanctity of the different sovereign organs of FBR. Therefore, the conduction of audit post clearance of the GDs of the appellant under Section 26(2) of the Act, Section 25 of the STA and Section 177 of the ITO by the respondent No.1 or his subordinates, for determination of short levied /collected amount of 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.
7. Under the provision of Section 179 of the Act an adjudicating authority assume powers in a case, on the basis of involved amount of duty and taxes, evident from its expression, which read as "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes", which means that assumption of powers is to be made on the basis of total amount of duty and taxes i.e. paid upfront + paid additional amount of duty and taxes on the basis of assessment order short paid/evaded worked out by the contravention framing authority , not evaded, as read/interpreted by respondent No.3 in para 11 of the order , in case the intention of the legislature would had been as opined by respondent No.3, the legislature would had incorporated the word "evaded" or "involved evaded" instead of existing word "involved" in the expression, which means the entire amount of duty and taxes involved without any exception. It is settled proposition of law that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency .
There is no room for intendment. There is no equity about a tax. There is no presumption as to tax nothing is to be read in, nothing is to be implied. One only look fairly at the language used nothing else to be done". In the case under decision, the involved amount of duty and taxes is Rs.54083106/- (paid upfront on 12.06.2018 Rs.2,251,431/- additional amount of duty and taxes levied on the basis of assessment order Rs.1,422,277 /- paid on 05.07.2018 + short paid/ evaded amount of duty and taxes incorporated in show-cause notice Rs.1,734,398/-.
The competent authority to adjudicate the case of said amount under clause (i) of Section 179(1) of the Act rest with Collector of Customs. To the contrary , Respondent No.3 issued show-cause notice and passed order-in- original while usurping the powers of Collector . This is not permitted under law, not a single word has been uttered by the representative of the respondents Nos.1 and 2 on the said issue during the course of hearing, which is tantamount to admission and confirms that the Respondent No.3 usurped the powers of the Collector in derogation of the explicit provision of Section 179(1) of the Act, verbatim of the same is reproduced for perusal: 179 Power of adjudication:- (1) Subject to subsection (2) in cases involving confiscation of goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under this Act or the rules made there-under , the jurisdiction and powers of the officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows, namely:-
(i) Collector no limit
(ii) Additional Collector Not exceeding three million rupees
(iii) Deputy Collector not exceeding one million rupees
(iv) Assistant Collector not exceeding five hundred thousand rupees
(v) Superintendent not exceeding fifty thousand rupees
(vi) Principal Appraiser not exceeding fifty thousand rupees.
[Provided that in cases of goods to be exported, the above officers of customs shall have their jurisdiction and powers in terms of FOB value and twice their respective monetary limit.]
(2) Notwithstanding the provisions of subsection (1), the Board may by notification in the officials Gazette, fix or vary the jurisdiction and powers of any officer of Customs or a class of officers and may also assigns or transfer {by an order} any case to any {of ficer} of customs, irrespective of the territorial jurisdiction (emphasis supplied)
For lending clarity to the issue, upon perusal of Section 179(1) of the Act, it is abundantly clear that the authority defined therein has to exercise powers, neither superior nor subordinate is empowered to assume the powers of his superior or subordinates, unless Board is desirous of fixing or varying the jurisdiction and powers of any Officer A of Customs or a class of Officers, through a notification in official Gazette as per the expression of Section 179(2) assign or transfer any case to any Officer of Customs, irrespective of designation or territorial jurisdiction. In the instant case no notification of the Board has been presented empowering Respondent No.3 for exercising powers of his superior . He assumed the powers of the Board himself in negation of Section 179(2) ibid., which he could not assume under any pretext/circumstances. This defect renders the show cause notice without lawful authority and jurisdiction. Hence, ab-initio, void and ab-initio wrong, superstructure built there upon, no matter how strong it may be has to crumble down. Rendering the show-cause notice and order-in-original issued/passed by the Respondent No. 3 as ab-initio void and coram non judice and as such of no legal ef fect.
8. It is now a legal fiction that the consignment which has undergone the process of passing assessment order under the provision of Section 80 and Rule 438 of the Act/Rules for levy of duty and taxes, which were paid and thereafter valid clearance order dated 05.07.2018 as contemplated in Section 83 and Rule 442 ibid has been passed by the competent authority in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002. Such order is an appealable order and can't be disturbed by any other authority including respondent No.1, assessing officer and respondent No.3 with the exception of preferring an appeal under the provision of Section 193 of the Act as was/is invariably done by an importer , in case he felt the assessment order so passed is nullity to the fact/law . Similarly , if the respondent No.1 was of the view in the instant case of the appellant proper assessment has not been carried out, the only option left with him to adopt the mechanism available in the Act, for the reopening of the impugned assessment order by filing an appeal before the Collector of Customs, Appeals under the provision of Section 193 of the Act either by him directly or through Deputy Collector R&D or Group in which they should had incorporated all of their apprehensions, opinions/findings, including contravening provisions of the Act and so the applicable penal clauses. Upon receipt of that the Colllector of Customs, Appeal have to go through the facts and grounds of that, thereafter if he think fit that in the case under appeal correct duty and taxes have not been either levied or paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Act as enunciated in 3rd proviso of Section 193A to the respondent (importer/appellant) and after receipt of reply to the said notice, the Collector of Customs has to decide the appeal in the light of the issued show-cause notice and reply . In the instant case no appeal has been filed either by the respond ent No.1 /Deputy Collector R&D or Group despite mandated under law, instead respondents Nos.1 and 3 assumed the powers under Section 195 of the Act and reopened valid assessment/clearance orders dated 19.06.2018 and 05.07.2018 passed under the provision of sections 80, 83 and Rules 438 and 442 of the Act/Rules. Neither respo ndent No.1 /Deputy Collector of Customs, R&D nor respondent No. 3 are empowered to reopen valid assessment order passed by the authority defined in Section 2(a) of the Act, in exercise of powers vested upon him through SRO 371(I)/2002 dated 15.06.2002. All acted without power/jurisdiction, hence their action deems to be without any lawful authority and as such ab-initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD1256 M/s. Paramount International (Pvt.) Ltd. v. FOP and others, wherein their lordship of High Court opined that "department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (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 CPLA No.105-K of 2014 filed by Collector of Customs and others against the order of the High Court has been dismissed by the Hon'ble Supreme Court of Pakistan while refusing leave to appeal. Whereas, the High Court of Balochistan in 2019 PTD 1712 titled as Collector of Customs, MCC, Quetta v. Al-Habib Enterprises and Engineering and others , while dismissing the SCRA of the department held that "after assessment of leviable duty and taxes under Section 80 of Customs Act, 1969 and payment thereof and after clearing the vehicle under Section 83 Customs Act, 1969, the available remedy of filing appeal under Section 193 of the Customs Act, 1969 was not availe d 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."
9. It is settled principle of law, that at a time one order has to remain in field, second order for piling upon on the existing is not permitted through any mechanism either by passing of reassessment order under section 80(3) or order-in-original under section 179 after issuance of show-cause notice under section 180 of the Act. In the instant case assessment order for levy of duty and taxes was passed on 19.06.2018 by the appropriate authority , in exercise of the power vested upon him through SRO 371(1)/2002 dated 15.06.2002, which were paid and consignment was released after passing of clearance order dated 05.07.2018 under section 83 and Rule 442 of the Act/Rules. Passing of reassessment order under the provision of Section 80(3) or order-in-original under section 179 are not only acts of piling upon multiple order on the existing, beside double jeopardy as held in M/s. Smith Kline French v. Pakistan reported as 2004 PTD 3020 held that "once an order is passed, which attains finality , the same cannot be subject to a show-cause notice again, considering that no appe al or revision is filed against the first order . This was held by the learned High Court to be in derogation of the principles of administration of justice"
Yet another committed illegality is apparent in case i.e. assessment order was passed on 19.06.2018 appeal against which could had been filed by either respondent No.1, Deputy Collector (R&D) or Group, on or before 18.07.2018 but had not filed to this date and the passed assessment orders attained finality and became closed and vast transaction and cannot be distu rbed or reopened by any authority or court as held in reported judgment 1989 MLD 4310 M/s. World Trade Corporation v. Central Board of Revenue that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which so sou motu revision lay under the Act". In the light of the settled law the initial assessment orders attain finality by virtue of expiry of stipulated period expressed in subsection (2). Therefore, the reassessment order dated 11.07.2018 and order dated 30.10.2018 passed by respondent No. 3 are nullity in the eyes of law. This is also tantamount to double jeopardy not permitted under Article 13 of the Constitution of Islamic Republic of Pakistan, which respondents Nos.1 and 3 committed purposely and intentionally , in derogation of Article 13 and law laid down by the Superior Judicial Fora ,Rendering the reassessment orders dated 11.07.2018 passed by assessing officer and respondent No.3 as without lawful authority/jurisdiction.
10. As regards to reassessment under section 80(3) of the Act it is permitted only after calling for the documents as contemplated in Section 80(2) ibid., after clearance of the goods in terms of Section 83 and Rule 442 of the Act/Rules. After examination of those, if declaration transmitted and uploaded docu ments at the time of transmitting GD under section 79(1) and Rule 433 of the Act/Rules or any information or statem ent so furnished by the importer is found to be incorrect in respect of earlier assessment. In the absence of = availability of aforesaid ingredients, reassessment is not permitted, evident from the reassessment orders dated 11.07.2018, which are silent in this regard confirming that no mis-declaration in any aspect i.e. declaration, documen ts, information or statement has been made by the appellant, further validated from the uploaded examination report for the alleged said to be mis- declared goods by the nominated officer carried out independently without any interaction either with the appellant or his clearing agent, which read as "ASSOR TED GASKET , FIXING, STOPPER, GUIDE CONTROL AND PRESS PLATE, ROCKER ARM VALVE W/SHAFT , PUSH ROD SET ROT OR IN AND EX W/SHAFT , OIL STICK AND SCREEN, NEUTRAL BUTT ON TUBE BREA THER W/INT AK PIPE, OUTER COVER KATORA, CAM W/SHAFT , CLUTCH KATORA W/PLA TE KIT ARM CAM CHAIN TENSIONER W/LEVER, TAPPET COVER, UPPER AND LEFT COVER, PINION PRIMAR Y DRIVE GEAR, SPRING SET, RUBBER BUSH, ROLLER AND SEALS, NET WT APPROX: 9500 KG" , confirming answering the declaration made by appellant at serial No. 5 of the GD i.e. "Assorted gasket, fixing, stopper , guide control and press plate, rocker arm, valve, w/ shaft, push rod set, rotor' in and _ex,w/shaft, oil stick and screen, neutral button, tube breather , w/intake pipe, outer cover , katora, cam, w/shaft , clutch katora, w/plate, arm cam, chain tensioner , w/lever , tappet cover , upper and left cover , penian primary ,- drive gear, spring set, rubber bush, roller and seals spare parts for motor cycle ", on the strength of which assessing officer passed assessment order dated 19.06.2018 with the inscription in the assessment sheet "Assorted gasket consisting of engine loose gasket etc., net. wt: 141 kgs approx. fixing stopper guide control and press plate net wt: 300 kgs approx B. Rocker Arm valve Assey net wt: 325 kgs approx., camshaft clutch net. wt: 395 kgs approx. oil stick and screen net wt: 47 kgs Aprox. Neutral button net. wt: 9 kgs. Approx. breather pipe net wt: 58 kgs approx. intake pipe net wt: 304. kgs Approx, cover clutch outer net. wt: 416 kgs, approx. cam shaft complete net wt: 752 kgs approx. arm can chain etc., " while adducing remarks in the assessment notes reading as assessed in the light of ER and VR/Data" and for remaining item ER & VR and for item 10 "assessed per ER and data KAPE-HC-149212 dated 21022018. Rendering the reassessment order dated 11.07.2018 by the assessing officer nullity to the provision of Section 80(2) & (3) of the Act. Hence, ab-initio null and void.
11. The respondent No.1 while orderin g the assessing officer to pass reassessment order also ignored the provision of Section 29 of the Act. It is vital to visit for understanding, its constitutional and legislature construct.
Hence, verbatim of the same is reproduced here-in-under: 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 the Act is allowed in the column of the declared value, quantity or description after removal of the good s 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 contents of description, quantity and value transmitted/assessed in GD, when it have/had gone the process of passing of assessment order under the provision of Section 80 and Rule 438 for levy of duty and taxes and which had been paid, thereafter clearance order dated 05.07.2018 under the provision of Section 83 and Rule 442 has been passed by the authority expressed therein in exercise of the power vested upon him through SRO 371(1)/2002 dated 15.06.2002. The respondent No.1 by putting an hold on GD, issuing re-examination order and passing of reassessment order by the assessing officer, in fact amended the declared/assessed descriptions, quantities, PCT headings and values of the GD under the provision of Section 205 despite bar under section 29 of the Act. Rendering that illegal, hence, not valid and fails the test of judicial scrutiny . However , if it is considered for the sake of arguments, that the customs is empowered to reassess 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 and insert subsection (2) in section 80. 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 respondent No.1 ordered and assessing officer passed. Neither reassessment nor issuance / passing of show-c ause notice order-in-original are permitted in such like situation. The entire acts of respondent No.1, assessing officer and respondent No.3 are therefore, in derogation of Sections 29, 80 (2) & (3) of the Act, and as such without any lawful authority , hence void and ab-initio.
12. Apparently no mis-declaration in material particular is visible in the instant case evident from the adumbration made in para 8 supra, in regards to description, quantity weight and value. Resultant, neither the provision of section 32(1) nor (2) are applicable. Hence, the instant case without any exception is of error, omission or misconstruction, made / done by the custom officers, attracting under the provision of Section 32(3) of the Act.
Show-cause notice under the said provis ion could be issued by the Principal Appraiser only as notified in Serial No.3(ii) of SRO. 371(1)/2002 dated 15.06.2002 and none else. To the contrary , the assessing officer created recovery/demand through reassessment order dated 11.07.2018 on the order/direction of respondent No.1 and respondent No.3 passed an order by usurping the powers of his subordinate, which is not permitted under law.
Nobody is allowed to usurp the powers of his subordinates as held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others and 2009 PTD 1083 that "Superior authority cannot exercise the power of his subordinates for adjudication purpose-------------powers of sub-ordinate exercised by superior authority is held as to be without jurisdiction beside usurpation". Rendering the transmitting of view message for creating demand/recovery in the garb of reassessment orders under section 80(3) and order-in-original under section 179 of the Act being without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding 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 PLD 2014 Supreme Court 514.
13. In regards to the allegation of mis-declaration levelled in the show-cause notice on the basis of purported "credible information" as stated therein, I have examined the uploaded impo rt documents falling within the destination of section 2(kka) of the Act, examination report and the assessment orders dated 18.06.2018 and have observed that no mis-declaration of any sort in material particular is visible from those. Physical examination of the goods was being carried out by the4selected examiner by the Deputy Collector , Terminal independently without any interaction either with the appellant or his clearing agent as per the enunciation of Section 198 and Rule 435 of the Act/Rules. Whereas, assessment/clearance orders dated 19.06.2018 were passed by the competent authority on the strength of declaration, examination report, images and uploaded documents in compliance to the view message transmitted to him by the assessing officer under Rule 437 ibid. Subsequent reassessment orders dated 11.07.2018 have been passed by the assessing officer on the direction of the respondent No.1, who supplied the assessment sheet of the imported items, which he thought being appropriate/correc t based on rearranged/changed descriptions, quantity , weight and PCTs, in accordance with his pre-determined biased opinion, formed only for the purpose of justifying his illegal act of detention and preparation of contravention report, having no nexus with the fact of the case, after passing of clearance order dated 05.07.2018, which is not permitted under law, as deliberated by me in para supra. The said act of his have no warrant of law, the entire exercise of putting an hold on GD/detention of the consignment, re-examination, reassessment orders, issuance of show-cause notice and passing of order-in-original have been carried out by the respondents Nos.1 and 3 on the basis of purported credible information. A mere change of opinion does not constitute "credible inform ation" beside, if the concerned authority acting on his own or under instruction from his superior officers, subsequently comes to a different conclusion with regards to proper applicability or interpretation of a statutory provision i.e. mere a change of opinion, these could not ipso facto constitutes "credible information". In the facts and circumstances of the present case, reliance placed thereupon on "credible information" thereon to reopen the assessment/clearance orders were/are misconceived and misplaced as evident from the law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1990(sic) Edulji Dinshaw Ltd. v. Income Tax Officer that "The Income Tax Officer is seeking to reopen the passed assessment for the last 09 years under section 65 of the Ordinance acting beyond his jurisdiction because all material facts were already on record of the department on the basis of which his predecessor had held that the assessee was liable to be assessed as a property holding company i.e. accompany not carrying on the business of buying and selling properties there was no suppression or concealment of any facts but merely a change of opinion by the I.T.O., as to the inference to be drawn from the same facts, there was thus no legal basis for proceeding under section 65 of the Ordinance."
14. It has also been observed by me that the respondent No. 1 was extra enthusi astic in dealing the instant case and this stands validated' from the fact that while changing the description of the goods, he did in such a manner that those should fall under the ambit of additional custom duty, in addition to leviable statutory custom duty under the First Schedule of the Act, while doing so he ignored the fact that the goods, least falls within the regime of the goods, levialbe to additional custom duty, being different and identifiable, which the appropriate authority identified at the time of passing assessment order dated 19.06.2018 in the light of respective PCT heading of the goods available in First Schedule to the Act, after perusing those and so the identical/similar goods/item allowed clearance by the Collectorate in the past, detail of which was available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of the Rules. ' Amazingly , the goods of same description and under the same PCT Heading and value were cleared even after framing contravention report as against the consignment in question and even to date. Hence, by giving differential treatment to the appellant by the respondents, they acted in derogation of E Articles 4, 18 and 25 of the Constitution. Therefore, I endorse the assessment orders dated 19.06.2018 and clearance orders dated 05.07.2018 being correct in fact and law, no illegality was committed by the appropriat e authority . It is to be noted that the description of any goods cannot be stretched other than their actual description, only for the purpose of squeezing duty and taxes despite not leviable.
It is settled preposition of law that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency . There is no room for intendment. There is no equity about a tax. There is no presumptio n as to tax nothing is to be read in nothing is to be implied. One only look fairly at the language used nothing else to be done " as held by High Court and Supreme Court of Pakistan in their reported judgment starting from Abbasi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463 to M/s. Fazal Ellahi v. Additional Collector of Customs, 2011 PTD (Trib.)
79. Even otherwise "if there are two or more interpretation of our provision pertaining to levy of tax on account of anomaly/ambiguity the one favourable to tax payer has to be adopted by the court" as per judgment reported as 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227 . It is considered opinion of the Superior Judicial Fora in a number of judgments "that tax payer should not be made to suffer on account of bad drafting of the statute". Relia nce is placed on the judgment of High Court of Sindh reported as 2004 PTD 901 ".
"While interpreting the taxing statute the Court must look to the word of statute and interpret it in the light of what is clearly expressed. It cannot imply anythin g which is not expressed. It cannot import provision in the statute as to support assumed deficiency ."
"While finding out intention of the legislature language of the law is not be seen and if the intention is cleared from the language used nothing else is to be done." "if the legislature has not sufficiently expressed itself Court has no duty to act for it, for court is concerned with what it lays down and not what it has only in mind, but once it has been articulated enough. Court does not more than give effect to the intention that it has succeeded in expressing. The intention may be expressed in faulty language, in very faulty language in extremely faulty language this is of no consequence as long as there is no doubt as to the intention. A draftsman mistake as long as it relates to form in which the legislative intend is expressed and not to the substance of it is of no effect. Of course ones an element of doubt as to the intention of the legislature enter the field consideration otherwise irrelevant may all become relevant.
15. Although the deliberation made in paras supra, resolved the issue of lis and no further deliberation is warranted, Ergo, since the respondent No. 3 in its order has formed opinion that charge of mis-declaration of value on an importer could be levelled on the basis of Valuation Ruling issued by the Director , Directorate General of Valuation under the provision of Section 25A of the Act, it is beneficial to adduce in this context and hold that her opinion is based on mis-conception and in-apt interpretation of Section 32 of the Act and Rules and regulation framed there- under . The charge of mis-declaration of value on an importer could only be levelled upon availability of direct evidence i.e. evidential invoice of the identical/similar goods of the period given in Rule 107(a) of the Rules, as ordered by the Board in para 78 and Sub-para (3) of para 101 of CGO 12/2002 dated 15.06.2002 and Serial No.(d) of SRO 499(1)/2009 dated 15.06.2009. The Valuation Ruling is only for the purpose of assessment, not for levelling charge of mis-declaration of value under Section 32 of the Act. This is due to the reason that it is not a declaration of the importer , no column is available in the prescribed GD to be filed online for incorporating that. In the absence of declaration to the said effect, the charge cannot be invoked. I am fully in agreement with the learned Member (Technical), who authored judgment in the appeal of M/s. Shoaib Tayyab International, Karachi v. Additional Collector of Customs, MCC of Appraisement-East and which is reported at (sic) PTD (Trib.) 190 holding that "proving of charge of mis-declaration of value needs high standard of proof, a direct evidence not the valuation ruling, or the value of identical/similar goods available in the data. Additionally , in case of levelling charges of mis- declaration of value on each importer based on valuation ruling or identical/similar assessed value (instead of import) in the data, not a single consignment would had been cleared by any field formation of Pakistan and their job would had been only to frame contravention reports, adjudicating authorities would had been piled with the cases and the ports/dry ports would had been chocked to their capacity due to non timely clearance of consignments. Since, no direct evidence of value for levelling charge of mis-declaration is available nor presented during the course of hearing as warranted under and paras of the CGO /SRO referred above. The charge of mis- declaration is unsubstantiated and as such of no substance and legal effect. Rendering it, nullity to the provision of Act and Rules and regulation framed there-under and existing practice in vogue within the field formations."
16. 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 that the appellant has been needlessly dragged into the litigation by the respondent No. 1 despite not warranted under law. I hereby vacate the impugned show-cause notice, and set aside the reassessment orders dated 11.07.2018 and order-in-original dated 30.10.2018 passed by the assessing officer and respondent No.3 as ab-initio, null and void while maintaining the assessment order dated 19.06.2018 being correct in fact and law. Appeal is accordingly allowed with no order as to cost. The respondent No.2 is directed to issue delay detention certifica te in terms of Section 14A (2) of the Act in duplicate, for submission with the respective shipping company and terminal for waiver of paid container detention/rental and terminal demurrage/storage charges accumulated manifold without any fault or default on the part of the appellant.
17. Order passed and announced accordingly .