JAHANZAIB WAHLAH, MEMBER JUDICIAL-III.---- Through this order , I intend to dispose off Appeal bearing No. K-607/2019 directed against Order-in-Appeal No.1850/2019 dated 19.04.2019 passed by Collector of Customs, Appeal Karachi maintaining the reassessment order dated 28.09.2018 passed by the Auditor , Directorate General of Post Clearance Audit, Karachi in GD No. KPPI-HC-17093 dated 31.08.2018.
2. Brief facts of the case are, the appellant during the course of his business activities imported a consignment of 10046.728 kgs of 100% Cotton Mechanic ally made Lace falling under PCT heading 5804.2900 from Zavian Lace, Sidharth Nagr , Soorath, India against invoice No.Exp. 01/18/-19 dated 113.08.2018 and B/L No. MEAU-966052869 dated 28.08.2018, upon receipt of documents delivered those to his clearing M/s. U.K. Traders, Karachi 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 for availing the regime of Customs Computerized System (CCS) deposited upfront duty and taxes of Rs.74, 930/- in the NBP, consequent to which GD was numbered KPPI-HC-17093 dated 31.08.2018. The inbuilt authorit y of the CCS Module thereafter referred the GD to the Assessing Officer (respondent No.2). who instead of completing the assessment on the basis of declaration, uploaded documents opted to get the goods examined under the provision of Sections 198 and Rule 435 of the Act/Rules and to proceed with after adducing his opinion routed the GD to the Deputy Collector (respondent No.3), who gave his assent and transmitted the GD to the Deputy Collector , QICT , who marked it to the examiner of his choice, for conduction of examination, the goods were found as examined and the report so prepared was uploaded by him in the reservoir of the GD. The respondent No.2 upon receipt of GD with examination report passed assessment order under the provision of Section 80 and Rule 438 of the Act/Rules on 16.07.2018, while deleting the exemption claimed under SRO 1274(I)/2006 dated 29.12.2006 @ US$. 3/kg for levy of duty and taxes and transmitted the same to Principal Appraiser for approval,, which gave his assent on 16.07.2018, while observing in the note as "upheld". That since, deletion of benefit of SRO was not legal appellant clearing agent filed 1st review under Rule 441 before the Principal Appraiser , who rejected the same on 17.07.2018, consequent to which 2nd review was filed before respondent No.3, who agreed to the contention of the appellant after going through the First Schedule to the Act and SRO and allowed the same on 18.07.2018, while adducing his opinion reading as "Reviewed in the light of data and relevant SRO provision" and transmitted view message for payment of additional amount of duty and taxes of Rs.63.723/-. The appellant accordingly , paid the communicated amount on 07.09.2018, consequent to which the inbuilt authority of CCS passed clearance order under the provision of Section 83 and Rule 442 of the Act/Rules, consequent to which appellant clearing agent obtained delivery from the terminal and transported the goods to the appellant warehouse. The respondent No. 1 alter lapse of 3 weeks on 28.09.2018 passed reassessment order under the provision of Section 80(3) of the Act in the garb of audil observation and created recovery of Rs.209,812/- and in support of that adduced opinion in the assessment note that: "An information was received to the Directorate of PCA Karachi that certain importers are importing polyester lace from India and availing inadmissible benefit of SRO 1274(I)/2006 dated 29.12.2006 by mis-declaring its classification 2. Accordingly , scrutiny of past clearance data of the instant goods was started and the instant CD was selected for Audit. The audit of the instant CD revealed that the importer M/s. IMPORIANT TRADERS imported GARMENT ACCESSORIES (ASSOR TED DESIGN, MULTICOLOR LACE) from India and got the same cleared under PCT heading 5804.2900 and availed benefit of SRO 1274(1)/2006 dated 29.12.2006. However the contents of examination report and image s uploaded clearly reflect that the goods are made of polyester which is a manmade fiber and the same is correctly classifiable under PCT heading 5804.2100 chargeable to CD @ 20% and where benefit of SRO 1274(1)/2006 dated 29.12.2006 is not admissible.
3. Hence, the importer for alleged evasion of duty/taxes through mis-declaration of classification and availing inadmissible exemption under SRO 1274(I)/2006 dated 29.12.2006 and causing a loss of revenue amounting to Rs.209812/-. If the importer is not agree with the above observation revaluated electronically as well as representative of the importer submitted the reply of same manually on or before the date of hearing, otherwise importers required to deposit the evaded amount of Rs.209812/- with the National exchequer within 10 days of the issuance of this Audit Observation failing to which legal proceedings may be initiated as defined under the law ."
3. The appellant upon having knowledge of the passing of impugned re-assess ment order , retrieved that and preferred appeal before respondent No.4 on 28.11.2018 which he rejected vide orders dated 19.04.2019 on the basis of limitation. Para 3 is relevant, which read as follows: From the record of the case, I observe that the appeal is time barred by about thirty (30) days: the impugned order was passed an 28.09.2018 and appeal against the aforesaid order was required to be filed by 28.10.2018 (i.e. within 30 days) in terms of time limit stipulated under section 193 of the Customs Act, 1969, whereas the same was filed an 28.11.2018. Thus the appeal is time barred. No cogent reason have been given by the applicant to explain the delay in filing the appeal within the prescribed time period. Under the circumstances, I have no reason to condone the inordinate delay in filing the appeal. Therefore, the case is accordingly rejected as time barred."
4. The appellant filed the appeal on the basis of grounds enumerated therein, the consultant of the appellant argued the case strictly in accordance with the ground enumerated therein. No cross objections under Section 194A(4) of the Act have been submitted within the stipulated period of 30 days by the respondent No.1 resultant, lost right of cross appeal within the contemplation of section 194A(3) ibid. Non submission of counter affidavit whether by will or default forfeit the respondent No.1 right to deny assertion made in the affidavit as has been herd by the Superior Judicial Fora reported at (1974) 94 ITR-1, 1980 PLC (C.S.) 350, 1982 PLC (C.S.) 757, 1986 CLC 745; (1984) 146 ITR 140, (1985) 53 Taxation-1 (Trib.), 1986 CLC 1119, 1986 CLC 1408 KAR, 1991 MLD 1243 , PLD 1992 SC 317, 1993 SCMR 662, PLD 1996 Karachi 68, 1986 PLC (C.S.) 560, 2003 PTD 2118, Similarly , respondents Nos. 2 and 3 also have not filed cross objection instead comments, which least qualify as in cross objection falling within the ambit of cross appeal.. Hence to be construed as opinion having no warrant of law, none, the less are kept on record for appeal. On the date of hearing representativ e of the respondents supported the orders stating inter alia that these are correct in fact and law. Hence, same may be maintained and appeal be dismissed being devoid of merit/substance.
5. Arguments heard and case record perused and the relied upon documents/judgments by the appellant's. Prior to dilating upon other factual and legal aspect of the case, it is apt and just to decide the issue that as to whether appellant was having knowledge of the assessment order passed by respondent No.2 and whether appeal filed before respondent No.3 by the appellant was barred by time and as to whether respondent No.3 was in his right to reject the appellant appeal only on the basis of limitation. I have observed that the respondent No.4 lost sight of the facts that respondent No.1 was not empowered to either assume powers under sections 80, 179 and 180 of the Act, beside any communication whatsoever has to be posted on the home page of the appellant, not in hidden manner as evident from the assessment sheet/note. Therefore, it was incumbent upon him to decide the appeal on merit as the reassessment order passed by respondent No.1 has not been officially transmitted to the appellant to this date. Rendering the order without lawful authority and as such ab-initio, null and void.
6. Notwithstanding, to the above observation, appeal was filed by the appellant before the respondent No.4 against a void and nullity to law order , which stands validated from the penultimate grounds and for such A type of appeal as it is well settled law that statute of limitation do not runs against such judgments and orders, reliance is placed on 1986 SCMR 962 Rehmat Bibi and others v. Punno Khan and others, 1996 SCMR 2296 Syed Haji Abdul Wahid and another v. Syed Sirajuddin and PLD 1976 Supreme Court 37 Ali Muhammad v. Hussain Bux and another wherein it has been held that: "On the question of limitation, the learned judge referred to a number of decision of this court and held that if an order is without jurisdiction and void then it needs not to be formally set aside. In Yousuf v. Muhammad Aslam Zia and others in reported judgment PLD 1958 SC (Pak) 104 (1), it was said by this Court "Where the legislature clothes an order with finality , it always assume that the order which it declared to be final is within the power of the authority making it and no party can plead as final and order made in excess of powers of the authority making it, in the eyes of law, such order being void and non-existent". In PLD 1965 SC 68 Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (2) it was said that an order without jurisdiction is a nullity in law mid it does not require to be set aside formally . Again in PLD 1967 SC 294 Syed Ali Abbass and others v. Vishan Singh and others
(3) it was observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalized for not throwing himself again by way of revision or review on the mercy of the authority who were responsible for such excess this being the rule firmly established, the dismissal of writ petition by the learned single judge on finding that the appeal before the Additional Settlement Commissioner was barred by time and in dismissing it he had acted with jurisdiction was not warranted in law .
7. In adherence of the ratio decidendi the Hon'ble High Court of Sindh in reported judgment 2002 PTD 87 FOP v.
Metropolitan Steel Corporation held that "when a Court or a Tribunal assume jurisdiction not vested by law or failed to exercise jurisdiction so vested its order may be void and in nullity to law. However , when its act illegally or material irregularity in the exercise of its jurisdiction the order is only voidable but not void and thereafter held that limitation does not runs against void order instead against voidable order ." In the light of the order of the Superior Judicial fora the Tribunal in umpteenth reported judgment held that no limitation runs against the void order e.g. 2010 PTD (Trib,) 1636 , Hence, I hold in unequivocal terms that no limitation runs against the order passed by respondent No.1, which was ab-initio null and void, and no limitation runs against the appeal filed by the appellant against the said order and was deems to be within time and it was incumbent upon respondent No.4 to decide the appeal on merit instead summarily on limitation and that also on erroneous premise and in derogation of the law laid down by the Superior Judicial Fora referred above.
8. Reverting back to the merit of the case, it is apt to adduce that no online proce dure for conducting audit under the provision of Section 26(2) and Section 155M of the Act of the consignment cleared through CCS through Rules as contemplated in Section 26A(1) ibid, in the framed Rules, incorporated in Chapter XXI of Rules. Resultant, any audit desired to be conducted should and ought to be as per the enunciation made in Chapter XVIA inserted in the Act with the caption' reading as "Provision relating to the Customs Computerized System and Audit and access to documents". Section 155M(1) expresses that a notice in writing to be served on the importer . The emphasis is in writing, which means that it should be in writing and not through mail, powers of which are otherwise not available with the Officials of Directorate of Post Clearance Audit. The respondent No.1 has no power even under the 'provision of Section 155M of the Act as evident from Notification No.S.R.O No. 500(1)12009 dated 13.06.2009.
Rendering the purported audit and audit observation, which is in fact a charge sheet, show-cause notice and order as ab-initio, void and as such of no legal ef fect.
9. The respondent No. 1 is indeed empowered to conduct audit of the record under the provision of Section 26(2) but after serving a notice or summon as contemplated in clause (a) of section 26A of the Act. No B mandated notice or summon has been either served on the appellant, rendering the purported audit and observation so conducted is in derogation of the settled law that a thing has to be done as it has been asked to be done, otherwise not to be done at all as held in 2002 PTD 2457 that "the thing should be done as they are required to be done, or not at all". The apex Court held in judgment PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner" and in PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court, is not bound to give effect to it." The said ratio was maintained, in the case of E.A Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of .law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. M/s. Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 if the law had prescribed method for doing of a thing in a particular manner , such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted". The super structure built on such foundation namely audit observation, show-cause notice and order-in-original no matter how strong those may be have to fall, reference is made to PLD 1996 Karachi 68 which laid down that "where the initial order or notice was void all subsequent preceding, orders or super structure built on it were also void. In reported judgment 2006 P7D 978 it is held that "the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---- all successive orders based upon it illegal and liable to be quashed".
10. The respondent No.1 in fact passed a reassessment/adjudication order under Section 80 Rules 438 and 179 of the Act/Rules. The powers under Section 80 and Rule 438 rest with Principal Appraiser under SRO 371(1)/2002 dated 15.06.2002, he figures no where in the provision of Section 179 of the Act. He has been delegated powers under these sections either under the provision of Section 179 or SRO 371(1)/2002 and even SRO 500(1)/2009 dated 13.06.2009 as such not empowered to either pass reassessment or adjudication order . To the contrary , he. passed both the orders by usurping the powers of Principal Appraiser and the authorities defined in Section 179 of the Act. This is not permitted under law. Hence, the reassessment/adjudication order passed by him is without power/jurisdiction, hence null and void as held in the reported judgments- Major Syed Walayat Shah v. Muzajfar Khan and 2 others (PLD 1971 SC 184), Omer & Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectora te of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector , Noshehra and others v. Sarfraz Khan and others 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib) 1996 and 2010 PTD (T rib.) 832 .
11. That reassessment under subsection (3) of Section 80 of the Act is permitted after calling for the documents as expressed in Section (2) ibid after release of the goods and the declaration or documents or any information or statement so furnished is found to be incorrect in respect of earlier assessment. In the absence of availability of any mis-declaration, misstatement false documents/statement, reassessment is not permitted. As evident from the reassessment order , which is silent in this regard confirming that no mis-declarati on in regards to any aspect i.e. declaration, documents, information of statement has been made by the appellan t, rendering the assessment so made by the respondent is nullity to the provision of Section 80 of the Act. Hence, null void and ab-initio. The respondent No.1 is neither designated as "Officer of Inland Revenue" under the provision of Section 30 of the STA and Section 228 of the ITO and as such are not empowered to pass assessment order , hence, is not empowered either to conduct audit under section 25 of the STA and 77 of the ITO or to pass assessment order under the provision of section 11 of STA and 120 of the ITO by doing so he usurped the power of "Officer of Inland Revenue" to which they are not vested, Rendering the reassessment order for even sales tax and income tax in flagrant violation of law and as such coram non judice.
12. 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 07.09.2018 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 appeala ble order and cannot be disturbed by any other authority including respondent No.1 or his superior with the exception of preferring an appeal under the provision of Section 193 of the Act for which his superiors are empowered through SRO 500(1)/2009 dated 13.06 .2009, 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 superior were of the view in the instant case of the appellant proper assess ment has. not been carried out, the only option left with them 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 Superior 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 Collector of Custo ms. 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 or his superior despite mandated unde r law, instead respondent No.1 assumed the powers under Section 195 of the Act and reopened valid assessment/clearance orders dated 07.09.2018 passed under the provision of sections 80, 83 and Rules 438 and 442 of the Act/Rules. Neither respondent No.1 nor his superior are empowered to reopen valid assessment order passed by thee authority defined in Section 2(a) of the Act, in exercise of powers vested upon him through SRO 371(1)/2002 dated 15.06.2002. All acted without power/jurisdiction, hence his 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 othe rs, 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 C.P.L.A. No.105-K of 2014 filed by Collector of Customs and others against the order of the High Court has been dismissed by the Hon'ble Supreme Court of Pakistan while refusing leave to appeal. 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 availed by the concerned officials of the Collectorate of Customs Additional Collector of Customs, (Adjudication) had no jurisdiction under the provision of Customs Act, 1969 to issue show- cause notice and to pass order-in-origina l. 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."
13. It is also well settled law, that in the presence of an appealable order , fresh order cannot be passed even through issuance of show-cause notice under section 180, while exercising power s under the provision of Section 179 ibid. The said act is piling upon yet another order on the existing appealable order not permitted under law as held by Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 M/s. Smith Kline French v. Pakistan that "once an order is passed, which attain finality due to non-filing of appeal within the stipulated period of 30 days, the same cannot be subject to a show-cause notice due to limitation and the transaction stood passed and closed and cannot be disturbed. For reaching at the decision I have gained strength from the reported judgment 1989 MLD 4310 M/s. World Trade Corporation v. Central Board of Revenue wherein their lordship of right Court held that if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that has attained finality under the Sea Customs Act, 1878 and against which suo motu revision. Moreso the reassessment order/demand notice pass ed/issued by the respondent No.1 also falls under the ambit of "double jeopardy" not permitted under Article 13 of the Constitution of Islamic Repub lic of Pakistan. Rendering the reassessment order/demand notice of respondent No.1 for piling upon an existing appealable order are without lawful authority and jurisdiction and as such void and ab-initio and of no legal ef fect.
14. Recovery can only be created upon passing of an order after issuance of show-cause notice under Section 32(3) of the Act, which read as: "Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiring him to show-cause why he should not pay the amount specified in the notice".
15. In the instant case no show-cause notice has been issued despite mandated under law, issuance of show- cause notice is pre-requisite and cannot be dispense with under any circumstances. In the present case recovery has been created by the respondent No.1 in isolation through the impugned reassessment order , the respondent No.1, in fact committed violation of the provision of Section 32(3) of the Act and principle of natural justice rendering the recovery so created without any lawful authority and as such void and ab-initio as held in reported judgment 2006 PTD 978 Forte Pakistan (Pvt.) Ltd: Karachi v. The Director General of Intelligence and Investigation (Customs and Excise), Karachi and another , wherein it has been held that "service of notice under section 32 of the is a condition precedent for initiation, of proceedings, in the absence of notice under section 32 on the importer the entire proceeding initiated by the Adjudicating officer and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction, void and in operative. The entire proceeding are accordingly struck off. Hon issuance of show-cause notice 32(2) also confirms the fact that the present case of the appellant is not of mis-declaration instead short levy of duty and taxes, due to error omission or misconstruction which thus under the ambit of section 32(3) of the Act. The respondent No.1 while creating recovery through reassessment orders dated 28.09.2018 committed yet another illegality as under the provision of Section 32(3) show-cause notice could only be issued by the Principal Appraiser as evident from entry No.3(ii) of SRO 371(1)/2002 dated 13.06.2002, which he usurped despite 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 under section 80(3) is 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 (T rib.) 1636, 201 1 PTD (T rib.) 21 14, 201 1 PTD (T rib.) 2557, 2010 PTD 465 and 2014 Supreme Court 514.
16. For determination of validity of reassessment order , it is beneficial to reproduce Section 80(2) and (3) of the Act :
(2) An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of the Customs:
(3) if during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment the goods shall without prejudiced to any other action which may be taken under this Act be reassess to duly .
17. Upon plain reading of Section 80(3), it is observed that it is dependent on Section 80(2) unless compliance is made to that in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re- assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in Section 80(2) ibid. Upon receipt of documents or the information so transmitted/submitted or the statement given by the importer to the Customs Authority , if are round to be incorrect in respect of earlier assessment made on that basis of uploaded import documents, examination report and assessment order passed by respondent No.3. Nothing this sort of visible in the instant case as evident from the 'assessment order dated 07.09.2018 passed by the respondent No.3. Confirming description and quantity' of the goods as declared nothing contrary , can be construed, it seems that the reassessment order passed by the respondent No.1 on assumption/presumption and conjectures. I am unable to digest the wisdom of respondent No.1 in forming opinion that the appellant is guilty of misdeclaration as examination under the provision of section 198 was carried out by the customs officials independently in assistance with the terminal operator as contemplated in Rule 435 ibid and so the passing of assessment order by the respondent No.3 under the provision of section 80 and rule 438 in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002, what action against the delinquent officers was suggested, or any action was initiated against those, observation adduced by respondent No.1 is silent. Hence, cannot be construed as valid or legal. The respondent No.1 committed series of illegality as evident from the adumbration made by me in preceding paras, even of the provis ion of section 29 of the Act, for understanding its constitutional and legislature construct, verbatim of it is reproduced.
"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." (Emphasis supplied)
18. 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 goods from the customs area or the Customs Reference Number is allotted to the goods declaration electronically . A cap has been laid on the importer for obtaining amendment post filing of GD and after clearance of the goods. Similarly , the word "assessed for duty" used in the expression lays restriction on the Customs not to amend itself the contents of GD after clearance under Sections 83 and Rule 442 of the Act/Rules on the strength of valid assessment order for levy and duty and taxes by the appropriate authority under Section 80 and Rule 438 ibid and Notification No.371(I)/2002 dated 15.06.2002.
That the respondent No.1 through reassessment order changed the description, unit value and value of the GD to that the fancy lace is made of Polyester , US$ 3.00/kgs and US$. 10,710.00 as against existing to US$. 40/kg and of the consignment USS. 27,417.00 as against existing Lace made of Cotton, US$. 1.70/kg and US$. 5787.8106, after clearance of the goods under Section 205 of the Act which is in derogation of Section 29 and as such not valid and fail the test of judicial scrutiny . Therefore the entire act of respondent No.1 is in derogation of Sections 29, 80
(2) and (3) of the Act besides without any power or jurisdiction under Section 80 and Rule 438 of the Act/Rules SRO 371(I)/2002 dated 15.06.2002 and as such without any lawful authority , hence void and ab-initio.
19. As per declaration and as contented by the appellant, the imported goods were of cotton without any ambiguity as confirmed in the examination report and were entitled for benefit of reduced rate of duty and taxes under Serial No. 2584 of SRO 1274(I)/2006 dated 29.12.2006 and Serial No. 2701 of SRO 569(I)/2017 dated 01.07.2017. validly allowed by the respondent No. 3, this stands validated letter of the shipper dated 19.10.2018. However , for resolving the issue to its logical conclusion, a query was put to the representative of the respondent No.1 that for reaching at the said opinion/decision, whether any expert opinion was sought from either manufacturer of lace or stockiest, the reply was in negative. Hence, yet another query was made that whether samples have been retained reply to this was also in negative, this flabbergasted me that how respondent No.1 levelled the allegations and held. I have observed with concern that the respondent No.1 clearly and categorically made observation regarding the said fact in callous manner and failed to perform his dudes with diligence and transparently and fairly. Careless investigation not only destroys the fabric of the case rather under mind the confidence of the public, which is apparent in the instant case. Resultant in the given circumstances of the case I have been left with no other option except to hold in unequivocal terms that it is a case of no evidence as held in reported judgment 1991 PTD 551 that "Any action which is based upon no evidence is not permitted by law" and in 2006 PTD 2190 that "a mere assertion of the prosecution is no evidence" and the whole case is being made out on the basis of conjectures and fishing inquiries which is not permitted under law as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment 1992 Supreme Court 485, The Assistant Director Intelligence and Investigation v. B.R Herman Mohattas (Pvt.) Ltd., Karachi that "it cannot make a rowing or fishing inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality". The said principle was subsequently held by the Superior Judicial Fora in reported judgment (1957) 32 ITR 89, (1967) 64 ITR 516, 1.T As. 2400/2401/KB/91-92, 1995 PTD (Trib.) 580, (1995) PTD (Trib.) 1152, (1982) 1381 ITR 742, 1993 PTD 206, 1997 PTD (Trib.) 2209 and 2013 PTD (Trib.) 353.
Therefore, no inference contrary to that could be drawn, in the absence of availabil ity of sample and test to the said effect that the goods imported by the appellant were of composition other than declared i.e. as opined by the respondent No.1 polyester falling under PCT heading 5804.2100.
20. What has been discussed and observed herein above, particularly the interpretation of law and legal preposition discussed in the light of prescribed law and observations made thereon and to follow the ratio decidendi, I hold that the re-assessment order passed by the respondent No.1 in the GD of the appellant and as well as the order in appeal passed by the respondent No.4 suffers from grave legal infirmities, therefore, are declared to be null and void and hereby set aside and the present is allowed with no order as to costs.
21. Judgment passed and announced accordingly