JAHANZAIB WAHLAH, MEMBER JUDICIAL-III. ----Through this common order , I intend to dispose of 09 Appeals bearing Nos.K-131 1 to 1319/2019, filed against Orders-in-Appeals Nos. 2158-2172/2019 dated 11.10.2019 passed by Collector of Customs (Appeals), Karachi remanding the appeal back to the Collectorate for assessment / reassessment instead of passing an order deciding the controversy of reassessment orders dated 30.01.2019, 01.02.2019. 28.02.2019 and 26.02.2019 respectively passed by respondent No.1 despite being fully cognizant of the facts and law pertaining to the appeal. All these appeals have identical issues of law and facts thus being heard, dealt with and disposed off simultaneously through this single consolidated judgment in the light of judgment of Hon'ble High Court of Sindh in Customs Reference No.157/2008 (S.M. Naqi son of Syed Muhammad Hussain Karachi v . Collector of Customs (Adjudication-I) and others Karachi).
2. It is needless to discuss the facts of all appeals separately . Hence, for reference the facts of Appeal No.K- 1311/2019 are being taken into conside ration for decision, wherein the appellan t during his business activities imported a consignment of 21,098 kgs of electrical accessories from China valued at US$ 14,436/- vide invoice No. GH147 dated 07.06.2018. Upon receipt of shipping documents the appellant transmitted 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 the Customs Rules, 2001 (Rules) with the MCC of PMBQ under the regime of Custom Computerized System (CCS), which transmitted view message for payment of upfront duty and taxes that were paid on 10.07.2018, consequent to which GD was allotted number KPPI-HC-3837-10072018. Upon appearance of GD on his system, 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 the Deputy Collector of the Group, who gave his assent and referred the GD to the Deputy Collecto r, Terminal, who had the goods examined through the officer of his choice. The goods were found in accordance with the declaration in all aspects, report so prepared was uploaded in the reservoir of the GD. Upon appearance of the examination report and images on his system, the assessing officer, passed assessment order dated 16.07.2018 for levy of duty and taxes with the application of Valuation Ruling and under Section 80 and Rule 438 of the Act/Rules and transmitted view message for payment of additional amount of duty and taxes. After payment of the same by the appellant the inbuilt competent authority passed clearance order under Section 83 and Rule 442 ibid. The respondent No.1 after 18 months of the clearance of the goods at the back of appellant assessed a silent reassessment order dated 01.02.2019 through which he changed quantity and PCT (destruction) and value of the "Electrical Accessories Switch and Sockets" which is tantamount to amending quantity description as against existing for levy of duty and taxes, while observing in assessment note in the garb of audit observation without adducing any remarks in the assessment note as evident from the fact that it is blank. Being aggrieved, appellant challenged the vires of the reassessment order before respondent No.3 vide Appeal No.3162/2019-PQ dated 25.02.2019, after multiple hearing respondent No.3 passed order dated 11.10.2019, through which he rema nded the case to the Clearance Collectorate, operative para in this contest is reproduced here-in-under:- "The perusal of examination report of each GD shows that importer , point is correct as in some GDs the case of PCA is justified, while for the some it is unjustified. Since, at this forum all the GDs and examination report along with images of the items cannot be analyzed. The Collectorate is directed to pursue all GDs in the instant case and dssess/reassess these as per description provided in the examination report/images available in the system in each respective case."
3. The appellant filed the appeal based on the grounds enumerated therein, the Advocate on the date of hearing argued the case strictly in accordance with those. No cross objections under subsection (4) of Section 194A of the Act were filed within the stipulated period of 30 days and not even during the creation of this Order , by the respondents. No cross objections under Section 194A(4) of the Act have been submitted within the stipulated period of 30 days by the respondents, resultant, they have lost the right of cross appeal within the contemplation of section 194A(3) ibid. Non submission of counter affidavit whether by will or default forfeits the respondents right to deny the assertions made in the affidavit as has been held by the Superior Judicial Fora reported at (1974) 94 ITR- I, PLJ 1979, 71 & 72, 1986 CLC 745 KAR L (1984) 146 ITR 140, 1986 PTD (Trib.) 119, 1986 CLC 1119, 1986 CLC 1408 KAR, 1991 MLD 1243 , PLD 1992 SC 317, 1993 SCMR 662, PLD 1996 Karachi 68 and PLJ 197 Quetta 66, 2003 PTD 2118. However , on the date of hearing the representative of respondent No.1 supported the orders passed by the respondent No.3 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.
4. Rival parties heard and case record perused. It is just and proper to decide first the vital aspects that as to whether respondent No.1 is empowered to conduct audit under Section 26A of the Customs Act, 1969, and whether any provision in the Act allows for the audit to be conducted electronically . It is apt for perusal of Sections 26A and 155M ibid to determine this issue the same is therefore reproduced below: 26A. Conducting the audit.-(1) The appropriate officer of customs conducting any audit under this Act shell proceed in the manner as the Board may by rules prescribe.
(2) Where any audit or inquiry or investigation is to be conducted for the purpose of ascertaining the correctness of any declaration or document or statement, for determining the liability of any person for duty, taxes, fees, surcharge, fines and penalties, or for ensuring compliance with all other laws administered by the customs, an appropriate officer of Customs may ,-
(a) examine, or cause to be examined, upon reasonable notice, any record, or any statement or declaration or document described in the notice with reasonable specificity , which may be relevant to such audit, inquiry or investigation;
(b) summon, by giving a notice and reasonable time,
(i) the person who imported, or exported or transported or stored or held under customs bond, or filed a goods declaration, drawback or refund claim;
(ii) an) officer , employee or agent of any person described in clause (a); and
(iii) any person having possession, custody or care of records and documents required to be kept under the Act, and any other person, as deemed proper , to appear before him at a reasonable time and to produce such records and documents as specified in the notice and to give such testimony under oath as may be relevant.
155M. Requisition of documents. - (1) The appropriate officer may , by notice in writing, require a person, as and when Specified in the notice, - (a) to produce for inspection by a specified Customs Officer , documents or records that the appropriate officer considers necessary or relevant to -- (i) an investigation under this Act; or
(ii) an audit under this Act; or
(iii) the recovery of dues payable under this Act;
5. The legislature through a money bill formed/established the Directorate General of Post Clearance Audit (DGPCA) by inserting 3DD in the Act and their officers have been delegated powers by the Board through SRO 500(I)/2009 dated 13.06.2009 for conducting audit under section 26(2) of the Act, of the importers books of account maintained under Section 211 after serving notice/summon under , clause (a) of Section 26A ibid. Perusal of the aforementioned makes it patently clear that the officials of DGPCA excluding the Director General are indeed empowered to conduct an audit under Section 26A ibid and in accordance with rules prescribed by the Board which despite insertion of Section 26A vide the Finance Act, 2006 into the Act have not been framed by the Board meaning that audit mechanism is limited solely to the provisions of Section 26A alone. However , the point of contention in the instant case arises on how the audit is to be conducted by the empowered officials and Section 26A of the Act when read with section 155M ibid makes it abundantly clear that the appropriate officer is required to serve a notice in writing to the person specifying clearly in said notice the record, maintained under the provisions of section 211 ibid by the person, required and purpose for which it is required in connection with the audit. There is no provision in the Act that permits conducting of Audit on the basis of goods declaration and its corresponding data available in the Customs data reservoir and in electronic format i.e. using electronic mods of communication.
For further support, reliance is placed on 2019 PTD 1786 , 2019 PTD 1567 , 2018 PTD 2132 and 2018 PTD 1273 wherein it has been categorically held that for conduction of legally viable audit in terms of the Act, issuance of a written notice or summon for obtaining record maintained under Section 211 of the Act was mandatory on the officials of DGPCA and failure to adhere to these requirements by conducting audit on the basis of data available in the Customs Clearance System reservoir would render the act including the audit observation as well as super- structure built upon it as void ab initio no matter how strong the allegations/findings. I am constrained to further deliberate on the issuance of notice/summ ons as mandated under Section 26A read with 155M of the Act wherein the phrase "in writing" reigns supreme in deciding this matter . Reference to multiple dictionaries has revealed the following definitions for the word writing: Collins Dictionary : "Writing is something that has been written or printed", Cambridge Dictionary: "something that has been written or printed", Macmillan Dictionary: "used about words written or printed on something." And Free Law Dictionary .com: "The expression of ideas by letters visible to the eye. Clason v. Bailey , 14 Johns. (N. Y.) 491. The giving an outward and objective form to a contract, will, etc., by means of letters or marks placed upon paper, parchment, or other material substance". It is abundantly clear in light of the aforementioned definitions that where legislature inserted the phrase in writing" in the Act, the intent was to constrain the officials of DGPCA to issue a written/printed notice to a person wheth er to ensure mandatory serving through registered post or to circumvent the hardship of substantiating serving of notice on a person through any electronic medium. Indeed support for this intent of the legislature can be further gleamed from the fact that this phrase has been used in connection with conduction of an audit to determine whether or not the person being investigated has contravened the provisions of the Act requiring further action by the respective empowered authorities, the gravity of the entire exercise was intended to be conducted with a written/printed notice served upon the person being investigated affording him ample time to gather and submit the required record and his contention. However , the respondent No.1 in the instant case has effectively flouted the entire mechanism enumerated in sections 26A and 155M by attempting to conduct an audit devoid of any notice/summon to the appellant and devoid also of any finding therein. It is settled proposition of law that a thing has to be done as it has been prescribed to be done, in case of doing the same in any other E manner render it illegal and as such void and ab-initio and this have been held in countless reported judgments, reference is 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. Messrs 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 PTD 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". Therefore, I find this so-called audit fails the criteria adumbrated above and as such is held in no uncertain terms to be patently illegal void and ab initio.
6. Additionally the second point of contention is the effect of the attempted audit conducted by the respondent No.1 which is a reassessment order dated 30.01.2019, 01.02.2019, 28.02.2019 and 26.02.2019 passed under the provision of Section 80(3) of the Act after passing of clearance order dated 09.11.2017 under Section 83 and Rule 442 of the Act/Rules, which is not permitted under law as it defeats the settled law by the Superior Judicial Fora. In this context respondent No.1 gave a deceptive look to the reassessment order by attempting to cloak/disguise it as an audit observation. The reassessment can only be done 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 any 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. 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 and paid the amount of reassessed duty and taxes. 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 reassessment order , passed by respondent No.1 without lawful authority/jurisdiction and as such void and ab-initio. Hence, not sustainable, having not a leg to stand upon.
7. Based on the enumeration in Para's supra, the officials of DGPCA are empowe red to look into every aspect of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 and Rule 438 of Act/Rules by preparing and issuing an audit observation to the importer for clarification. If the reply to the audit observation fails to settle the issue the DGPCA frames contravention report and forwards it to the Clearance Collectorate, which forward sit to the respective Collectorate of Customs Adjudication. for issuance of show-cause notice under Section 180 of the Act, and thereafter passing of order-in-original by the authority defined in Section 179 ibid. The respondent No.1 despite in his efforts to issue a valid audit observation effectively failed to fulfill the post audit observation requirements of forwarding the same for issuance of show-cause notice. The act of the respondent No.1 was to assume the powers of official of Clearance Collectorate and issue a reassessment order by exercising the powers specifically delegated to the officials of the clearance Collectorate through SRO 371(1)/2002 dated 15.06.2002. Neither was respondent No.1 nor his superiors/subordinates empowered to encroach the sovereign jurisdiction of the clearance Collectorate under any circumstances, as that will render Section 83 and Rule 442 of the Act/Rules along with SRO 371(1)/2002 as redundant. Hence, respondent No.1 acted without power/jurisdiction, in conducting reassessment of the cleared consignment.
8. Expectantly 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 09.11.2017 as contemplated in Section 83 and Rule 442 ibid has been passed by the competent authority in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002. Such order is an appealable order and can't be disturbed by any other authority including respondent No.1, with the exception of preferring an appeal under the provision of Section 193 of the Act as was/is invariably done by an importer , in case he felt the assessment order so passed is nullity to the fact/law . Similarly , if the respondent No.1 was of the view in the instant case of the appellant proper assessment has not been carried out, the only option left with them was 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/findings, including contravening provisions of H 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 of the said notice, the Collector of Customs, Appeals 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 respondents despite mandated under law, instead respondent No.1 assumed the powers under Section 195 of the Act and reopened a valid assessment/clearance order dated 09.11.2017 passed under the provision of sections 80, 83 and Rules 438 and 442 of the Act/Rules.
Neither respondent No.1 nor 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(1)/2002 dated 15.06.2002. Both acted without power/jurisdiction; hence their action deems to be without any lawful authority and as such ab initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 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 Customs, Additional Collector of Customs, (Adjudication) had no jurisdiction under the provision of Customs Act, 1969 to issue show-cause notice and to pass order-in-original. No question of law having arisen out of the impugned of the judgment passed by Appellate Tribunal warranting interference by High Court under section 196, Customs Act, 1969. Reference were dismissed in circumstances."
9. Express reproduction of sections 80(2) and (3) is vital for determination of the essence and spirit of reassessment orders passed by respondent No.1 dated 30.01.2019, 01.02.2019, 28.02.2019 and 26.02.2019 which is as follows: "(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 ."
10. Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), hence, unless subsection (2) is not complied with in letter and spirit no action can be taken under section 80(3) of the Act.
Meaning thereby that re-assessment I 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 dated 16.07.2017 passed by Assessment Officer, 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 has any illegality been committed by the competent authority passing the assessment order . In the instant case no re-assessment in the garb of any other manner was warranted under Section 80(3) of the Act being 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)
11. Regarding the rationale and legal construction of the above expression it is clear 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(1) after passing of valid assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 ibid, or after shipment of the imported goods through GD after completion of codal formalities defined in the Act/Rules or wherein J Customs Reference Number is allotted to the GD electronically . A cap has been laid on the importer 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 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(I)/2002 dated 15.06.2002. The act of the respondents of 'reassessing the GD post clearance under Section 205 of the Act 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 empowered by respondent No. 1. 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 Rule 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 Appra iser/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.1 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 80, 131 and Rules 438 and 450 of the Act/Rules and as such without any lawful authority , hence void and ab-initio.
12. 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 refinded, 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".
13. 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.1, infact committed violation of the provision of Section 32(3) of the 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 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 is a condition precedent for initiation of proceedings, in the absen ce of notice under section 32 on the importer the entire proceeding initiate d 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 Electric Lamp MFG Co., Ltd., Peshawar held that "demand notices in the absence 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 ents, 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 the reassessment order by respondent No.1 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.
14. On going through the operative part of the order passed by respondent No.3, it has been observed that he should have been vigilant in passing of orders within the stipulated period of 120 days as contemplated in section 193A(3) of the Act, which he failed as evident from the fact that appeals before him were filed on 26.02.2019 and 21.03.2019, in terms of Section 193A(3) of the Act, Orders had to be passed within 120 days or within further extended period of 60 days in terms of its proviso by the Respondent No.3 himself , upon availability of exceptional circumstances and recording of those after issuance of notice to the tax payer as held by Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881, Khalid Mahmood v. Collector of Customs. In the instant cases orders should have been passed on or before 25.06.2019 and 19.07.2019, which he failed to pass, no extension whatsoever was either given by him or obtained from the Board, as the impugned orders are completely silent in this context. Resultant, the Orders passed by the respondent No.3 on 11.10.2019 are barred by time by 108 and 84 days rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held in the reported judgments 2017 PTD 1756 , 2017 SCMR 1427 , 2008 P7D 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263, 2009 PTD 1978 , 2010 PTD (Trib.) 1010), 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1 146, 2012 PTD (T rib.) 1650, 2019 PTD 1961 , 2019 SCMR 1735 = 2019 PTD 1961 and 2019 SCMR 1989 .
15. I have also observed with great concern that respondent No.3 infact through the impugned Order has remanded the case to the clearance Collectorate with the direction to pursue all the GDs in the instant case and assess/reassess them as per the descrip tion provided in the examination report/im ages available in the system in each respective case. I fail to see the logic behind the direction of respondent No.3 in light of his clear admission of perusal of examination report of every GD for the instant case after which they could have issued clear speaking orders in terms of section 193A(4). To determine the legality of the direction in the impugned Order perusal of subsection (3) of Section 193A of the Act was perused as to the powers of respond ent No.3 which confirmed that it is limited to the extent of only "writing, extend, confirm, modify or annual" of an order. The absence of the phrase remand by the legislature substantiates the intent of the same not to grant such powers on respondent No.3.
Indeed this has been previously realized in 2014 PTD 956 which held that orders such as the impugned order in appeal by respondent No.3 were void and illegal as the statute was bare of any enabling provision for respondent No.3 to do so. It is well settled law that when a law required and act to be done in a particular manner it had to be done in that manner alone, not otherwise. Reference in this regard can be made to Muhammad Hussain and another v. Muhammad Shafi and another (2004 SCMR 1947 ) and Munawar Hussain and 2 others v. Sultan Ahmed (2005 SCMR 1388 ). And in 2006 SCMR 129 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others that "If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted---each and every words appearing in a Section is to be given effect and no other word is to be rendered as redundant or surplus---when the legislature required the doing of a thing in a particular trimmer then it is to be done in that manner and all other manner or modes of doing or performing that things are barred--if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare taciturn". Even otherwise, I fail to see the wisdom in respondent No.3 supporting the grounds of the appellant only to deffect remand the case back to the clearance collectorate which is akin to ad idem with the stance of the respondents Nos.1 and 2. The office of the Collector of Customs Appeals should be an impartial forum, rather through the impugned order I can only observe a prejudice towards the Appellant. I, therefore, hold the impugned order to be in derogation with the Act, hence, void ab-initio and illegal.
16. In deciding the subject case, I have given anxious consideration to the arguments of the rival parties and perused the impugned order , the relevant provisions of law, the case law referred specifically the interpretation of law, legal propositions and observations made thereon and infield ratio decidendi observed by the Superior Courts, I, hereby set aside the reassessment orders dated 30.01.2019, 01.02.2019, 28.02.2019 and 26.02.2019 passed by respondent No.1 and order in Appeals Nos.2158-2172 dated 11.10.2019 passed by. respondent No.3 as ab-initio, null and void. Appeals are accordingly allowed with no order as to cost.
17. Order passed and announced accordingly .