JAHANZAIB WAHLAH, MEMBER JUDICIAL -III.--- Through this order , I intend to dispose off appeals bearing Nos.K-1533/2018 and K-1534/2018 directed against Orders-in-Original No. 1213983 and 1213971 dated 30.10.2018 passed by Additional Collector of Customs, (Adjudication-II), Karachi (Respondent No.3).
2. Since, these 02 appeals pertains to same appellant and are based on identical fact and grounds. Hence, it is needless to reproduce facts and so the grounds of each case separately . Therefore, facts of Appeal No.K- 1533/2018 are taken into consideration for deliberation/decision, which are, 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. HMBC/01 1/05/92. The benefic iary in fulfillment of that shipped those through invoice No. N356PK180410-3 dated 12.04.2018 and B/L No.COAU-7060740980 dated 09.052018 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 clearing 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) deposite d upfront duty and taxes of Rs.2,366,252.00 vide cash No.C-KAPE-001768 on 04.07.2018, consequent to which GD was numbered as KAPE- HC-1978 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 good s examined first, to proceed with after adducing his opinion/reasoning for Obtaining physical verification, transmitted that to the Deputy 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 nothing contrary to the declaration is apparent, he passed assessment order dated 06.07.2018 by the assessing officer, being aggrieved, appellant filed 1st review under Rule 441 before Principal Appraiser , who rejected that and maintained the assessment made by assessing officer, with the application of infield valuation ruling / identical / similar goods value available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of Rules, evident from his adduced observation reading as "Assessed as per VR 118, Vr 1135, VR 967 and Data", in 'assessment note of each imported/assessed items. Thereafter transmitted view message of even date for payment of Rs.1,295,356.00 towards additional amount of duty and taxes, for payment of which appellant clearing agent officials approach NBP, he was shocked to learn that an hold has been placed on the GD of the appellant by the Principal Appraiser R&D, MCC of Appraisement-East (Respondent No.1) which is also instrumental in detention of his consignment under the provision 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 passing of assessment order for levy of duty and taxes and transmitting of view message for payment of those. His answer shocked the clearing agent, which was that he has a credible information that the appellant has committed an act of mis-declaration, 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 desires to get the goods re-examined, 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 assessed for levy of duty and taxes after passing of valid assessment order under the provisio n of section 80 and Rule 438 of the Act/Rules 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 20.07.2018 for levy of duty and taxes, while adducing remarks in the assessment note of each item, available in column "' AO remarks in fact No. (vii) of the memo of appeal and in exhibits H to H17 at pages 42 to 77". On the strength of the same second view message for payment of Rs.1,91 1,866.00 towards further additional amount of duty and taxes was transmitted, which appellant was unable to pay alike earlier , amount worked out on the basis of assessment order dated 06 07.2018 due to hold on GD, which respondent No. 1 was not inclined to lift. Thereafter , respondent No., framed contravention report on the basis of the reassessment order dated 20.07.2018 stating inter alia that the appellant mis-declared, the description, quantity , PCT heading and value attractin g the provision of section 32(1)(2) of the Act, punishable under clause 14 of Section 156(1) ibid read with SRO No.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 21.07.2018 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 01.08.2018, 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 confi scation of the goods, subject to redemption of those on payment of 20% fine of Rs.734,798.00, imposed penalty of Rs.300,000.00 and the amount of duty and taxes worked out by the assessing officer vide reassessment order dated 20.07.2018 on the order of respondent No. 1. Paras 11 and 13 are relevant and are reproduced here-in-under for the purpose of easement: "11. 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 powers 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 WEBOC 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, importer had accepted the reassessment done by the group and R&D and paid the additional amount without any protest. In two other consignments of identical nature imported by him with this consignment vide GD No.KAPE-HC-217824 dated 12.06.2018 and GD No.KAPE-HC-217864 dated 12.06.2018, 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.
12. 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 assessat S.No.13-18 of the GD, in the instant case is Rs.19,1 1,866.00 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.5,000,922.00 out of which importer had paid an upfront duty of Rs.2,366,252.00 paid on 29.06.2018 while the remaining amount of Rs.2,634,670.00 is yet to be recovered while the balance amount of Rs.11,10,871.00 is yet to be recovered. The amount of duty and taxes of Rs.19,1 1,866.00 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.2,099,422. 00 and on which redemption fine is to be levied under SRO 499(1)/2009 dated 13.06.2009, if the charge establishes.
13. 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, weighing 9370 kg as a single item against PCT heading 8714.1090 as mentioned at S.No.5 of the GD and similarly under item No.10 of GD against PCT heading 7317.0090. The detected items by virtue of actual description did not cover under the declaration of the importer and are classifiable under PCT headings which attracts additional custom duty beside statutory custom duty and are assessable at much higher value as compare to value of US $ 1.45/kg and US $ 1.10/kg on which the item, were assessed as per initial examination report, thus the importer by manipulating the description , classification and weight of the. item attempted to deprived the government from its legitimate revenue to the tune of Rs.1,91 1,866/-, The payment of additional duty and taxes, after Assessment by the Group and R&D without any protest in two other consignments of identical nature imported by him along with this consignment vide GD No.KAPE-HC-217824 dated 12.06.2018 and GD No.KAPE-HC-217864 dated 12.06.2018 is a clear indication of the fact that the importer has confessed and accepted his crime. 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 a fine equal to 35% of the value of the offending goods to the tune of Rs. 734,798/- (ascertained value of impugned goods of Rs.2,099,422/- (subject to the condition that the same are otherwise importable as per Import Policy Order in vogue as prescribed under SRO 499(1)/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 11 to 13 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 assessed for levy of duty and taxes, after passing of valid 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)/20 02 dated 15.06.2002. The respondent No.3 in para 11 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 impugned order , alleged credible information, is not visible, instead confirmation to the effect is available that the consignment of the appellant was assessed for levy/payment of duty and taxes 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 20.07.2018, these exercises were carried out by the custo ms 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(I)/2007 dated 09.06.2007. When Collector of Customs is not empowered to form any section or cell on his own, similarly not empo wered 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(I)/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 throu gh 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 assessed consignments for levy/payment of duty and taxes on the strength of assessment order passed by the authority under Section 80 and Rule 438 of the Act/Rules 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 goods which had been or were been importe d 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 our 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 adjudica ted and decided against the person. The procedure and mechanism provided Section 202 of the Customs Act, 1969 is entirely independent of any actio n taken in terms of Section 186 of the Act. It is not the case of respond ent that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's or 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) M/s. 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 totall y 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 of Section 186 of the Act and the law laid down by the Superior Judicial Fora.
6. 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 12 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.5573474/- (paid upfront on 04.07.2018 Rs.2,366,252/- + additional amount of duty and taxes levied and communicated on the basis of assessment order dated 06.07.2018 Rs.1295356/- + short paid/ evaded amount of duty and taxes incorporated in show-cause notice Rs.1,91 1,866/-. 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 three million rupees
(iv) Assistant Collector not exceeding three million rupees
(v) Superintendent not exceeding three million rupees
(vi) Principal Appraiser not exceeding three million 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 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 Respondents No.3 as ab-initio void. and carom non judice and as such of no legal effect as held by Superior Judicial fora in umpteenth reported judgments holding field, e.g. the case of Dr. Seema Irfan and 5 others v. FOP through Secretary and 2 others reported at 2009 PTD 1678 , wherein their lordship of High Court of Sindh aptly defined the consequences emerging from "assumption of jurisdiction/powers not vested upon the authority" and legal terminology "coram non judice" in so many words by adducing that "lack of jurisdiction meant lack of powers or authority to act in a particular manners ought to give a particular kind of relief and it referred to a court's total lack of powers or authority to entertain an case or to take cognizance. It may be failure to comply with condition essential for exercise of jurisdiction or that the matter falls outside the territorial limit of a court. The abuse of process it is intentional use of legal process for a improper purpose in compatible with the lawful function of the process by one with an ulterior motives in doing so-, and with resulting damages , in its broadest sense abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process. Abuse of process is a tort comprised of two elements: (1) an ulterior purpose and (2) a wilful act in the use of process not proper in the regular conduct of proceeding. Abuse of process is the malicious misuse or misapplication of process in order to accomplished an ulterior purpose. However , the critical aspect of this tort remains the improper used of the process after it had been issued. Ref. DeNardo v. Maassen 200 P.3D 305 (Supreme Court of Alaska, 2009, Mc Cornell v. City of Jackson 489 F. Supp. 2D 605 (United States District Court, Mississippi, 2006 ), Montemayor v. Ortiz 208 SW 3d 627 (Court of Appeal of Taxes at Corpus Christi- Edenburg. 2006), Reiz v. Walker , 491 F.3d 868 (United States Courts of Appeals 2007), Sipcas v. Vaz, 50AD 3d 878 (Appellate Division of the Supreme Court of the State of New York 2008). Whereas, coram non judice is a Latin word meant for "not before a judge, is a legal term typically used to indicate a legal proceeding i.e. outside the presence of a judge or with improper venue or without jurisdiction. Any indictment of sentence passed by a court which has no authority to try an accused of that offence is clearly in violation of law and would be coram non judice and a nullity ." When a lawsuit is brought and determined in a court which has no jurisdiction in the matter then it is said to be coram non judice and the judgment is void. Manufacturing Co., v . Holt, 51W .Va.352,41 S.E.351.
7. 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, by the competent authority in exercise of the powers vested upon him .through SRO 371(I)/2002 dated 15.06.2002. Such order is an appealable order and can't be disturbed by any other authority including respondent No.1, Principal Appraiser of the Group and respondent No.3 with the exception of preferring an appeal under the provision of Section 193 of the Act. In case the respondent No.1 was of the view that in the case in question 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, opinion/finding, including contravening provision of the Act and so the applicable penal clauses. Upon receipt of that the Collector of Customs, Appeal have to go through the facts and grounds of that, thereafter if he think fit that in the case under appeal correct duty and taxes have not been either levied or paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Act as enunciated in 3rd proviso of Section 193A to the respondent (importer/appellant) and after receipt of reply to the said notice, the Collector of Customs has to decide the appeal in the light of the issued show-cause notice and reply . In the instant case no appeal has been filed either by the respondent No.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 a valid assessment orders dated 06.07.2018 passed under the provision of section 80 and Rule 438 of the Act/Rules. Neither respondent 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 the 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 PTD 1256 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 exercis e any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudic ating 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.
8. It is settled principle of law, that at a time one order has to remain in field, seco nd 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 under Section 80 and Rule 438 for levy of duty and taxes was passed on 06.07.2018 by the appropriate authority , in exercise of the power vested upon him through SRO 371(1)/2002 dated 15.06.2002, 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 Messrs 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 appeal 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 past transaction and cannot be disturbed or reopened by any authority or court as held in reported judgment 1989 MLD 4310 Messrs 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 suo 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 , as this 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.
9. The reassessment under section 80(3) of the Act 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 20.07.2018, 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, STOPPE R, 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 AKE 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: 9400 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/intakek pipe, outer cover , katora, cane, w/shaft, clutch katora, w/plate, arm cam, chain tensioner , w/lever , tapit 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 06.07.2018 with the inscription in the assessment sheet "Assorted gasket consisting of engine loose gasket etc., net. wt: 182 kgs approx. 5A fixing stopper guide control and press plate net. wt: 561 kgs approx 5B. Rocker Arm valve Assey net.wt: 368 kgs approx., SC camshaft clutch netwt: 382 kgs approx. 5E. oil stick and screen net. wt: 50 Kgs aprox. SF. Neutral button net wt: 12 kgs. Approx.
5G. breather pipe net wt: 72 kgs approx. 5H. intake pipe net wt: 306 kgs approx. 51. cov r clutch outer net. wt. 394 kgs , approx. Si cam shaft complete and so o z as reported in examination report ", while adducing remarks in the assessment notes reading as "assessed as per VR 1188, V.R 1135, VR 967 and Data ". Rendering the reassessment order dated 20.07.2018 by the Principal Appraiser of the Group nullity to the provision of Section R0(2) & (3) of the Act. Hence, ab-initio null and void.
10. No mis-declaration in material particu lar is apparent in the instant case, evident from the adumbration made by me in para 7 supra, in regards to description, quantity origin, and weight , resultant , neither the provision of section 32(1) and (2) are applicable. Hence, the case of appellant at the most could be termed to be of, error, omission or' misconstruction, committed / done by the custom officers, falling under the provision of Section 32(3) of the Act , under which show-cause notice could be issued by the Principal Appraiser in terms of 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 20.07.2018 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 power s 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 S.C.
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, 201 1 PTD (T rib.) 2557 and PLD 2014 Supreme Court 514 .
11. In regards to the allegation of mis-declaration leveled 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 06.07.2018 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 the selected 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 orders dated 06.07.2018 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. Subseque nt reassessment orders dated 20.07.2018 have been passed by the Principal Appraiser of 'the Group on direction of the respondent No.1, who supplied the assessment sheet of the imported items, which he thought being appropriate/correct 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 assessment order dated 06.07.2018, which is not permitted under law, as deliberated by me in paras 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 information" 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, clearance placed thereupon on "credible information" thereon to reopen the assessment / clearance order 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 399 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."
12. 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, levialable to additional custom duty, being different and identifiable, which the appropriate authority identified at the time of passing assessment order dated 06.07.2018 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 Articles 4, 18 and 25 of the Constitution. Therefore, I endorse the assessment orders dated 06.07.2018 being correct in fact and law, no illegality was committed by the appropriate 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 of what is clearly expressed. It cannot imply anythin g 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" 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". Reliance 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."
13. Although the deliberation made in pans 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 Apprais ement-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 leveling 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 leveling 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."
14. 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 notices, and set aside the reassessment orders dated 20.07.2018 and orders-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 orders dated 06.07.2018 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.
15. Order passed and announced accordingly .