JAHANZAIB WAHLAH, MEMBER JUDICIAL-III .----Through this order , I intend to dispose off Appeal No.K- 637/2019 directed against Order-in-App eal No.1880/2019 dated 03.05.2019 passed by Collector of Customs (Appeals), disposing the appeal as not maintainable against the passed re-assessment order dated 09.10.2018 by Deputy Collector , Group-I, MCC of Appraisement-East, Karachi in GD No.KAPE-HC-30232-20082018.
2. Briefly facts of the case are, appellant during the course of his business activities imported a consignment of 18902 kgs of Kinder Joy Choco Roco from UAE @ US $ 0.80/kg. Upon receipt of shipping documents appellant transmitted Goods Declaration (GD) under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of the Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 (Rules) with the MCC of Appraisement-East under the regime of Custom Computerize d System (CCS), which transmitted view message for payment of upfront duty and taxes of Rs.15,37,177/- which were paid on 20.08.2018, consequent to which GD was numbered as KAPE-HC-30232-20082018, upon appearance of GD the Assessing Officer opted to get the goods examined as per, the contemplation of section 198 and Rule 435 of the Act/Rules and to proceed with after recording his opinion/apprehension transmitted the GD to respondent No.2, who gave his assent and referred the GD to the Deputy Collector , Terminal, who got the goods examined form the Officer of his choice, the goods were found in accordance with the declaration in all aspect, report so prepared was uploaded in the reservoir of the GD. The Assessing Officer upon receipt of that on his workstation passed assessment order dated 27.08.2018 while accepting the declared value in the capacity of the authority defined in Section 2(a) under the provision of Section 80 and Rule 438 while observing in the assessment note "examination report/packing list/data, KAPE-HC-27244- 15082018 and referred the same to Principal Appraiser (respondent No.1), who transmitted view message dated 25.08.2019 under Rule 437 ibid to the appellant for uploading previous lab report, literature and. GDs, wherein identical/similar goods were cleared on declared value. Appellant in compliance scanned the requisite, consequent to which he approved the assessment order vide dated 28.06.2018 and the inbuilt authority of the CCS passed clearance order under the provision of Section 83 and Rule 442. The appellant representative after obtaining delivery order form the shipping compan y approached the official of terminal operator for obtaining delivery , who showed their inability to entertain appellant representative by virtue of the fact that the Principal Appraiser (R&D) put an hold on the GD/ detained the consignment under the prevision of Section 186 of the Act. The representative of the appellant rushed to him for inquirin g the reason, he opined that it is the case of mis-declaration of value and he desire to initiate adjudication proceeding, when he was confronted that how he arrived on such conclusion and as to whether there exist any mis-declaration in material particular , his answer was in negative. Subsequently , after lapse of 45 days from the hold, the Principal Appraiser (R&D) ordered respondent No.2 to reassess the GD in the garb of review at US $ 1.96 as against declared /assessed US $ 0.80/kg, which he did on 09.10.2018 while adducing remarks in the assessment note reading as "Reviewed; assessed as per evidential data vide GD No.KAPW -HC-30608-28082018. Since the goods imported vide referred GD is non famous brand and of China origin, whereas, the goods under this GD are superior/famous brand, therefore, keeping in view the assessment criteria the impugned goods are being assessed after enhancement of 20% in value of the afore referred GD i.e. US $ 1.6296/kg x 20% = US $ 1.9555/kg". Being aggrieved and dissatisfied from the reassessment order in the garb of review passed by respondent No.2, appellant assailed its vires before respondent No.3 on 25.10.2018 vide Appeal No.Cus/2951-2018, multiple hearings were conducted by the respondent No.3 and thereafter passed order dated 03.05.2019 having no nexus whats oever with either' facts and grounds of the appeal. Para of the order is relevant, which is reproduced as under:- "I have examined the case record and the arguments of both the side and have given careful consideration to the facts of the case. The department has contended that since the assessment has done under Section 83(B) of Customs Act, 1969, which is not covered under Section 193 of the Customs Act, 1969 hence, appeal cannot be filed with Collector (Appeals). The point is well taken. However , department is directed to finalize provisions assessment under Section 80 of the Customs Act, 1969 to enable the importer to seek remedy as per law. The appeal is dispose of f accordingly ."
3. The appellant filed the appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the case strictly in accordance with those. No cross objection under subsection (4) of Section 194A of the Act has been filed within the stipulated period of 30 days or not even to date by the respondent No.1.
However , comments were submitted, which are not in any manner to be construed as cross objection, rather opinion on the facts and grounds of the appeal of respondent No.2, hence, least qualify within the definition of cross appeal, placed on record for perusal. On the date of hearing representative of the respondent averred, that the order passed by respondents Nos.2 and 3 are correct in fact and law for validation of the said fact he place reliance on the comments.
4. Rival parties heard and case record perused. It is just and proper to decide first the vital aspects that as to whether Principal Appraiser (R&D) 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 No.371(I)/2002 dated 15.06.2002. Upon perusal of the record of the case, I have observed that the assessment order under section 80 and Rule 438 in the present case was passed on 28.08.2018 and the penalty amount was paid on the same date and so the clearance order under section 83 and Rule 442 of the Act/Rules.
Resultant, no occasion was available for the Principal Appraiser (R&D) or his superior/ subordinate to put and 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 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 No.371(I)/2002 dated 15.06.2002, adherence of expression of Section 186 is mandatory which read as under: 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 penally 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 .
6. 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 against 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 investigation in respect of any goods is under way for imposition of fine and penalty . The, empowered officer can detain forthcoming consignment of the same owner/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 / cleared 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 2013 PTD 628 Muhammad Ali v. FOP that "once goods has been examined and assessed to duty and taxes and reassessed in terms of Section 80 of the Customs act, 1969 and the same were paid and clearance of the consignment had been made and goods were "out of charge"; Customs Authorities had not jurisdiction to refuse release of such goods nor the same could be detained on the basis of alleged mis-declaration of some previous consignment by the importer Customs Authorities could reassess only if duty and taxes and taxes were not levied correctly by invoking the provisions of Section 32 of the Customs Act, 1969 provided the same were attracted to facts and circumstances of the case --- Neither any inquiry of investigation was pending nor any proceeding for mis- declaration had been initiated against the petitioner----No notice for detention, seizure or confiscation was issued--- -Detention of the petitioner's consignment was therefore illegal and without jurisdiction and in 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 03 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 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 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 adjudicated and decided against the person. The procedure and mechanism provided Section 202 A 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 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". 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 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 witho ut lawful authority even jurisdiction and patently in derogation of Section 186 of the Act and the law laid down by the Superior Judicial Fora.
7. The remarks adduced in the assessment note corresponding to assessment order dated 09.10.2018 passed by respondent No.2 speaks volume about malice on his part as he in fact passed reassessment order under the provision of Section 80(3) of the Act after passing of clearance order under section 83 and Rule 442 of the Act/Rules, which is not permitted under law for defeating the settled law by the Superior Judicial Fora in this context he gave a deceptive look by using the word "reviewed. Assessment could be reviewed either by Principal Appraiser or respondent No.2 within the process of assessment only and that also upon filing a review by an importer in terms of Rule 441 ibid., wherein, no suo motu powers are available either with respondent No.2 or any other authority , evident from its expression reading as "441: Review of assessment:- The importer or his agent may file request for review to Customs online giving detailed reasons for disagreement with Customs shall review the assessment on the basis of submissions by the importer or his agent." No review under the said rule was ever filed by the appellant, instead he accepted the passed assessment order dated 28.08 .2018 by respondent No.2 and paid the amount of penalty as evident from duty bill dated 28.08.2018. Consequent to which clearance order under the provision of section 83 and Rule 442 was passed by the inbuilt authority by the CCS. Rendering the impugned reviewed assessment, which is in fact reassessment order , passed by respondent No.2 without lawful authority/jurisdiction and as such void and ab-initio. Hence, not sustainable, being having no legs to stand.
8. 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(1)/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 Principal Appraiser (R&D) and respondent No.2 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 Principal Appraiser (R&D) nor superior/subordinates are empowered to encroach the sovereign jurisdiction of DGPCA under any circumstances, as this will render the formation DGPCA by the legislature, Section 3DD of the Act, and SRO No.500(I)/2009 dated 13.06.2009 as redundant. Similarly , the Principal Appraiser (R&D) or any other officer of Customs, 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, Principal Appraiser (R&D) and respondent No.2 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 passing of 'reassessment order ab-initio, null, void. It has been observed by me with great concern that Principal Appraiser (R&D) and respondent No.2 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.
9. 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 28.08.2018 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 Principal Appraiser (R&D) and respondent No.2, 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 Principal Appraiser (R&D) and respondent No.2 were of the view in the instant case of the appellant proper assessment 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 respondent No.2, in which they should had incorporated all of their apprehensions, opinions/f indings, including contravening provisions 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 Principal Appraiser (R&D) or respondent No.2 despite mandated under law, instead Principal Appraiser (R&D) and respondent No.2 assumed the powers under Section 195 of the' Act and reopened valid assessment/cle arance orders dated 8.08.2018 passed under the provision of sections 80, 83 and Rules 438 and 442 of the Act/Rules. Neither Principal Appraiser (R&D) nor respondent No.2 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. Both acted without power / jurisdiction, hence their action deems to be without any lawfu l authority and as such ab-initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 Messrs 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 exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority . Impugned order was set-aside and Constitution Petition was allowed." 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 Cour t 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 depa rtment 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 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 was dismissed in circumstances. "
10. For determination of essence and spirit of reassessment order passed by respondent No.2 dated 09.10.2018 in the deceit of "reviewed" reproduction of section 80(2) and (3) is vital and which are: "(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 duty ."
11. Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), unless subsection (2) is not complied 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 which or the information so transmitted/submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessment. Upon perusal of the import documents, examination report and documents scanned by appellant and assessment order 28.08.2018 passed by Principal Appraiser , it has been observed that description and quantity was the same as declared. No visible mis-declaration in any aspect has either been made by the appellant in material particular nor any illegality has been committed by the competent authority passing the assessment order .
In the instant case no re-assessment in the garb f any other manner including "reviewed" was warranted under Section 80(3) of the Act. While passing reassessment order in the garb of reviewed the respondent No.2, also acted in nullity to the provision of Section 29 of the Act. It is of vital importance for reaching at a just decision to visit and understand essence and spirit and constitutional and legislature construction of Section 29 containing expression "Restriction on amendment of goods declaration" reading as: "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)
12. The rationale and legal construction of the above expression is that no amendment under section 205 of the Act, is allowed in the columns of the declared value, quantity or description after removal of the goods from the customs area for home consumption as contemplated in Section 79(I) after passing of valid assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 ibid, or after shipment of the exported goods through GD for export transmitted under Section 130 and Rule 444 after completion of codal formalities defined in Section 131 and Rules 450 of the Act/Rules or wherein Customs Reference Number is allotted to the GD electronically . A cap has been laid on the importer/exporter for obtaining amendment after out of charge of the GD in case of import or shipped in full in case of GD for export or post filing of GD. The phrase "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 130 and Rules 442 and 450 of the Act/Rules on the strength of valid assessment orders for levy and duty and taxes under Sections 80 and 131 and Rules 438 and 442 ibid by the appropriate authority defined in Section 2(a) in exercise of the powers vested upon him through SRO No. 371(1)2002 dated 15.06.2002. That the respondent No.2 while making reassessment of the appella nt's GD after clearance of the goods in fact amended unit value to US $ 1.96/kg and value of the consignment to Rs.4,660,444.00 as against assessed US $ 0.80/kg and Rs.1,906,599.00/- of the GD under Section 205 of the Act, which is in derogation of Section 29 and as such not valid and fail the test of judicial scrutiny . In principle' if it is considered for the sake of arguments that the customs is empowered to reassess a GD after clearance of the goods under provision of section 80(3) without adhering the procedure laid down in section 80(2), there was no need for the legislature to frame subsection (2) for inserting in Section 80 of the Act. The intention of legislature was not as interpreted by the Principal Appraiser (R&D) and respondent No.2.
The fact of matter is no reassessment is permitted under Section 80(3) of the Act, once the goods are cleared for home consumption or shipped on board for export. The reassessment is permitted prior to passing of Order of clearance/shipment under Sections 83 and 130 and Rules 442 and Rule 453 of the Act/Rules upon filing of review by the importer/exporter under Rules 441 and 450(3) ibid against the assessment orders of Appraiser/Principal Appraiser before the Principal Appraiser and subsequently before Assistant/Deputy Collector of the Group as the case may be. Therefore, I hold that the reassessment made by Respondent No.2 in garb of "reviewed" is tantamount to amendment under Section 205 post clearance /out of charge of the goods, hence, in nullity to the provision of Sections 29, 80(2) and (3) of the Act, besides without any power or jurisdiction under Sections 30, 131 and Rules 438 and 450 of the Act/Rules and as such without any lawful authority , hence void and ab-initio.
13. The reassessment order in any shape /manner by all means falls within the definition of demand notice for recovery of short paid amount of duty and taxes due to commission of inadvertence by the Officials of Clearance Collectorate. Such type of recovery can only be created upon passing of an order after issuance of show cause notice under Section 32(3) of the Act, expression of 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-ca use why he should not pay the amount specified in the notice".
14. 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 circumst ances. While creating recovery through reassessment order respondent No.2, in fact committed violation of the provision of Section 32(3) of the and principle of natural justice rendering the recovery so created without any lawful authority and as such void and ab-initio as held in 2006 PTD 978 Forte Pakisiar (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" and the Hon'ble Supreme Court of Pakistan in judgment reported as (2001 SCMR 838) Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electr ic Lamp MFG Co., Ltd. Peshawar held that "demand notices in the absen ce of statutory show-cause notices were without lawful foundation. It is well settled proposition of law that a thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all since pre requisite show-cause notices as required by law have not been served on the respond ent, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore, in the absence of statutory notice creation of recovery through reassessment order dated 09.10.2018 by respondent No.2 was/is without lawful authority and as such of no legal effect." In accordance with the ratio decidendi by the judicial fora. I therefore hold that the reassessment order through which recovery was created in isolation is without lawful authority , hence, null, void and ab-initio .
15. No occasion whatsoever was available with either Principal Appraiser (R&D) or respondent No.2 to dispute the declared value of the appellant as the cost of the goods in accordance with the invoice submitted for clearance has been remitted by the Bank of the appel lant vide debit advise dated 25.09.2018 and swift message to the said effect, for the verification of the which the Deputy Collector R&D forwarded notice under Section 26 and Section 155M of the Act to the appellant and his bank, which were replied by the Advocate of the appellant vide letter dated 22.10.2018 and so by the Bank, confirming that his declared value as being transac tion value within the meaning of Section 25(1) and Rule 113 of the Act/Rules. In the presence of availability of categorical confirmation, for disputing the declared value, it was mandated upon Principal Appraiser (R&D) and respondent No. 2 to intimate in writing as per the contemplation of Sub-Rule (3) of Rule 109 of Chapter IX of the Rules to the appellant reasons to the said effect and thereafter determine the fair value. In the absence-of mandated intimation they are not empowered to do so and assessment of the appellant goods ought to be done with the application of identical value available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of the Rules is US $ 0.80 as against unlawfully ascertained US$. 1.96 has a difference of US$. 1.16, which comes to 245% of the declared and available in the relied upon GD. Hence, it was fit case for mis-declaration of value, ironically , no show-cause notice was issued , it was so by virtue of the fact that as per law they have to supply the evidential invoice (direct evidence) as per the contemplation of para. 78 of CGO 12/2002 dated 15.06.2002 and clause (d) of SRO 499(1)/2009 dated 13.06.2009, which is non-existent. Hence, the relied upon GD has no nexus whatsoever with the goods of the appellant, nor it form direct evidence, for that reason unlawful act of reassessment in the deceit of review . Rendering the reviewed assessment, which is in fact reassessment order without lawful authority/jurisdiction. Hence ab-initio and void.
16. I have also observed with great concern that the respondent No.3 was bent upon rejecting the appeal by hook and crock and on irrelevant facts and grounds, he should had been vigilant in passing of order of rejection within the stipulated period of 120 days as contemplated in section 193A(3) of the Act i.e. on or before 22.02.2019, which he failed as evident from the fact that appeal before him was filed on 25.10.2018. Whereas, order has to be passed by him on 03.05.2019. No extension E whatsoever was either given by him or obtained by the Board, evident from the Order , which is silent in this regard. Resultant, the Order passed by the respondent No. 3 on 03.05.2019, is barred by time by 70 days. Law help the vigilant and not the indolent (2018 PTD 2270 ). Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held in the reported judgments 2017 PTD 1756 and 2017 SCMR 1427 Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Deen and Sons and others , 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala , 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others 2009 PTD (Trib) 1263 ; Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and (2009 PTD 1978 ) Leo Enterprises v. President of Pakistan and others , 2010 PTD (Trib.) 1010, Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excis e (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v Additional Collector of Customs, MCC of PaCCS , 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS , 2011 PTD (Trib.) 1146 Kaka Traders v. Additional Collector of Post Clearance Audit and (2012 PTD (T rib.) 1650) Pak. Electron Ltd. v . Collector of Customs, Lahore and others .
17. The order passed by respondent No.3 shows that it is not lawful legal, instead , having no warrant of law being based on erroneous facts and nexus with the order passed by respondent No.2 dated 09.10.2018 and grounds taken in memo of appeal, evident from order dated 03.05.2019 passed by respondent No.3. He also ignored intentionally the urgency of the matter and consumed considerable time without any cause or reason in deciding the matter while ignoring the indication available on the index of the memo. of appe al reading as "Perishable goods by virtue of 06 months of shelf life Lying in terminal". And while recording, judgment/order least bother to take into consideration grounds of appeal, which he for the sake of stretching the order incorporated at, pages 2 to 4. The appellant through the present appeal challenged the vires of reassessment order passed by respondent No.2 on 09.10.2018, order passed by him is silent in this regard and speaks about some provisional assessment under section 83(B) of the Act, not a single word to the said effect has been said by the appellant in the appeal filed before him. Similarly , he opined that when an assessment under section 80 of the Act has not been passed, appeal cannot be filed under the provision of Section 193. This shows that he has not gone through even the reassessment order and grounds of appeal despite mandated upon him prior to recording of order Confirming that he has acted as an officer of the department, instead of an independent, impartial and upright Appellate Authority .
Hence, crucified Article 10A of the Constitution which guarantees fair trial and the fact that neither he has will, passion and ability to do justice in the cases, which importer or appellant files before him against the impugned orders passed by the Adjudicating Author ities under the sections referred in Section 193 of the Act. Orders which are based on imported grounds, finding no place in the memos. of appeal cannot be termed as a judicial orders by any stretch of imagination. The order passed by him in the present case is without any ambiguity is a non speaking order and does not conform to the mandated requirement of Section 24-A of the General Clauses Act, 1897. He passed the impugned order on his personal pre-determined and absurd formed opinion contrary to law and that too is also not containing substantial reasons and did not show it was passed on objec tive consideration. Such type of orders are deemed to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary . No room was available for such illegal, void and arbitrarily order in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law.
The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Order-in-Appeal is in violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019 , 2007 PTD 2500 , 2004 PTD 1973 , 2005 YLR 1719 , 2003 PTD 777, 2003 PTD (Trib) 2369 , 2002 MLD 357, 1983 CLC 2882 , 2005 PTD 2519 , 2005 PTD 1189, PLD 1995 SC(Pak)
272, PLD 1970 SC 158 , PLD 1970 SC 173 1984 SCMR 1014 , 2012 PTD (T rib.) 619 and 2016 PTD 589 .
18. 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 set aside the reassessment orders dated 09.10.2018 passed by respondent No.2 and order-in-appeal dated 03.05.2019 passed by respondent No.3 as ab- initio, null and void while maintaining the assessment order dated 28.08.2018 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 certificate in terms of Section 14A(2) of the Customs Act, 1965.
19. Order passed and announced accordingly .