JAHANZAIB WAHLAH, MEMBER JUDICIAL-III .---- Through this order , I intend to dispose of Customs Appeal bearing No.K-1333/2019, filed against Order-in-Appeal No.2215/2019 dated 28.10.2019 passed by Collector of Customs (Appeals), Karachi by remanding the appeal back to the Collectorate for assessment / reassessment instead of passing an order deciding the controversy of assessment orders dated 13.02.2019 passed by respondent No.3 despite being fully cognizant of the facts and law pertaining to the appeal.
2. Brief facts of the case are that the appellant being a commercial importer of auto care products located at Plot No.13, Auto Market, Plaza Square, M.A. Jinnah Road, Karachi, imported a consignment of 11,515 Kgs of auto care product @ US $ 0.7438/Kg packed in 1575 cases against invoice No.SL.076208-01 dated 10.12.2018 and B/L No.NAM 3330441 dated 18.12.2018. Upon receipt of import documents the appellant got the I-Form approved from Bank Al-Habib amounting to US $ 8564.6500 and uploaded the same in the portfolio of the appellant maintained by PRAL in the Custom Computerized System Regime (CCS). Thereafter , delivered those to his clearing agent Messrs Khurram Brothers, Karachi for transmitting Goods Declaration (GD) under the provision of Section 79(1) and Rule 433 of the Act/Rules, with the MCC of PMBQ, under the regime of CCS, after which as per pre-requisite deposited upfront duty and taxes of Rs.666,0281- vide cash NO.C-KP1 11- 005649 dated 22.12.2018, consequent to which GD was numbered as KPPI-HC-54647-22012019. Upon appearance of GD on his system, the respondent No.1 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.3, who gave his assent and referred the GD to the Deputy Collector , 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. The CCS thereafter referred the GD to the respondent No.1, who passed assessment order dated 26.01.2019 against each item while accepting the declared value or with the application of identical similar value as per the contemplation of section 25(5) (6) and Rules 117 and 118 of the Act/Rules maintained by PRAL under Rule 110 of the period given in Rule 107(a) of the Rules, while adducing remarks reading as "no direct evidence. GD assessed on DV, or GD assess @ US $ 1/kg, as per KPPI-HC-46309- 22122018 and ER, as per {KPPI-HC477 37 and ER, @ US $ 0.80/kg @ US $ 1.25/kg as per serial No.25A of VR No.759 @ US $ 1.50 as per serial No. 25A, 830 @ US $ 0.80/kg @ US $ 1.50, @ 0.90/kg, US $ 0.80, US $ 1.6498/kg, as per (KPPI-HC-39778 dated 30.11.2018] and routed the GD to respo ndent No.2 who on 01.02.2019 approved the same by adducing remarks reading as "similar goods, prorata, data, upheld" and transmitted a view message for payment of additional amount of duty and taxes subject to acceptance of appellant. Since the assessment order passed by respondent No.2 was nullity to the law and in derogation of prices available in the data the appellant filed the 1st review under Rule 441 with respondent No.2, who on 02.02.2019 rejected the same while adducing remarks reading as upheld". Being' aggrieved by the act and commission of respondent No.2, appellant exercised his guaranteed right of 2nd review before the respondent No.3, who after keeping the GD with him for about more than 10 days, on 13.02.2019 rejected reviews on the basis of normal interpretation of the provision of law and enhanced the value of each item by adducing remarks in the assessment note as enumerated here-in-under:-
1. The identical item having same country of origin by importer (Protek Devices) just cleared (US $ 2/kg their consignment on US $ 4/kg. Therefore, the same treatment is given to the importer [KPPI-HC-4186-06122018]
2. (KAPW -HC-88523-14122018) reviewed in the light of data of similar item imported from UK origin @ US $ 1.20/kg
3. Review upheld
4. Item reviewed in the light of data of similar item of Belgium [KPPI-HC---51426-10012019]
5. Assessment maintained
6. Upheld
7. --do-
8. Reviewed as per VR + 20% loading of origin = 3.54 US$/kg
9. Upheld
10. --do --
11. --do -
12. Reviewed in the light of prevailing data
13. Nil
14. Upheld
15. --do-
16. --do-
17. --do-
18. --do
19. --do-
20. Evidence quoted by the traders was beyond 90 days data, therefore, the transaction value of the item is reflecting higher trend that the one declared. Furthermore, keeping in view of the VR number 1142 of the corborator cleaner is 1.5/kg which is similar item than the one assessed. Therefore, prorate yield the transactional value US$.2/kg. The item is reviewed accordingly .
21. Upheld
22. --do-
23. Assessment maintained
24. Upheld
3. Since the assessment orders passed by respondent No.3 were nullity to Para 78 of CGO 12/2002, clause (d) of SRO 499(1)/2009 dated 13.06.2009 and value of identical similar goods available in the data reservoir maintained by PRAL, appellant challenged the vires of those before respondent No.4 along with an application for interim relief on 07.03.2019 vide Appeal No.Cus/3187/2019/PQ which was allowed and goods released under Section 81 of the Act after securing the differential amount of duty and taxes after a delay of two months from the time of import. The impugned order was then passed on 28.10.2019 which instead of deciding the appeal remanded the case to respondent No.3 to re-assess. The relevant Para (4) of the impugned order is reproduced herein below:- "I have examined the case record and the arguments of both sides and given careful consideration to the facts of the case. Both departmental representative and the appellant has sought time to plead the case as in all there are 24 items in the Goods Declaration, where value was revised without any cogent reason or speaking orders. It is not possible to decide the case since no clear/explicit orders or assessment notes are issued by the Collectorate. The case is therefore remanded back to the Collectorate to assess the consignment on merits and pass a speaking assessment order ."
4. 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 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, 1979 PLJ 71 and 72, 1986 CLC 745 KAR. (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, &, PLJ 1979 Quetta 66 and 2003 PTD 2118. However , on the date of hearing the representative of respondents supported the orders passed by the respondents Nos.3 and 4 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. I have heard the rival parties and have perused the case record in detail. Therefore I, find it just and proper to decide first the vital aspects surrounding the case that as to how respondent No.3 proceeded to change the values of the imported goods without any basis or substance on which to rely on and in the presence of data of identical similar goods applicable on the appellant's goods that was readily available in the data reservoir maintained by PRAL under Rule 110 of the period given in Rule 107(a) of the Customs Rules, 2001. The respondent No.3 relied upon a singular piece of evidence i.e. GD No.KPPI-HC-41846-06122018 as direct-evidence to build the basis upon which he issued the assessment order and upheld the disputed assessment ignoring the fact that the GD relied upon him is considered stray evidence under the law for the same is not even of the same origin let alone region, the learned respondents 2 and 3 would have fared better if they considered that goods imported from the place it was manufactured is bound to cost less than that imported from another region. Even otherwise it is a settled proposition of law that where two or more transaction values of identical goods were available in the data of import A of 90 days maintained by PRAL as enumerated above, the lowest value had to be applied for completing the assessment of identical goods under dispute and in the appellants case goods imported under firm contract evident from I-form the burden of proof has been discharged as required under Section 25(1) of the Act and it was mandated upon the respondents 2 and 3 to transmit a message under Rule 109(2 ) of Chapter IX and Rule 437 of Chapter XXI(iii) of the Customs Rules, 2001 to enable the transporter to upload any additional documents required for satisfaction of the respondents. Not only was no such exercise undertaken evident from lack of view message placed on record by respondents but no material evidence has been placed on record to counter the evidential data provided by the appellants which speaks volumes about the intent of the respondents 2 and 3 in assessing the goods of the appellant at over inflated values despite the presence of lower valid evidence that incidentally was made in blatant contravention of Para 78 of CGO 12 of 2002 dated 16.06.2002 and the requirement in Rule 109(3) of the Rules. In determining the same reliance has been placed on 2018 PTD 422, 2014 PTD 218, 2011 PTD 2624 , 2010 PTD 2432 , and 1996 (81) ELT and I have no choice but to declare the method adopted by the respondents to be ultra vires, void, ab-initio.
6. Brazen perusal into the matter is required to deliberate in detail why the respondents 2 and 3 felt that the transaction value of the appellant was unacceptable hence required assessment under section 25(5) of the Act when in light of the invoice they could have easily been assessed on the basis of transaction value under section 25(1) of the Act i.e. the price actually paid or payable for the goods sold for export to Pakistan especially when the same has been further substantiated through the submission of a valid I-form the veracity of which was at no point questioned or doubted by any of the respondents. Only where goods could not have been assessed on transaction value then they were to be assessed on the basis of value of identical goods sold for export to Pakistan at about the same time at which the goods were being valued under section 25(5). In fact the respondents in determining the value of the goods had to resort to sequential manner under section 25 B where the exercise had to stop at the first method found applicable and that it was neither permissible nor necessary to go on or consider any of the succeeding methods. As discussed above, the I-form and invoice was never alleged to be flawed/false as no where have the respondents claimed so and as enumerated in para supra the methodology provided in Rule 109 of the Rules was not complied with during this entire exercise, hence, the respondents have not even provided any reasoning for not assessing the goods under the first applicable method i.e. section 25(1) of the Act. In reaching this conclusion I have placed reliance on 2019 SCMR 1126, 2019 PTD 800, 2019 PTD 36, 2018 PTD 1746 and I find the respondents valuation of the goods under section 25(5) of the Act to be in direct contravention of the Act, Rules and precedents set by the judicial fora therefore void and ab initio.
7. Expectantly after going through the order passed by Learned Collector (Appeals), it has been observed that it was mandated upon him to pass an order in a stipulated period of 120 days and further period of 60 days as contemplated in section 193A(3) of the Act, which was passed time barred as evident from the fact that appeals before the lower forum was filed on 07.03.2019, 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, 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 case the order should have been passed on or before 05.07.2019 or 03.09.2019, although it has been observed by this court that a extension was obtained on 24.09.2019, which was after the expiry of the entire stipulated period defined in the law. It has been observed that the extension should have been applied for and granted during the initial duration of 120 days in order for the board to grant the extension of additiona l duration of 60 days, even if for the sake of argument we consider that the extension passed by the board on 24.09.2019, which is void due to being issued after expiry of the 120 day period, were to retrospectively apply and grant an extension of 60 days, even then the impugned order has been passed after the entire stipulated period of 180 days and additionally one month after the extension granted by the board despite being invalid. Resultant, the Order passed by the respondent No.4 on 23.10.2019 is barred by time by 110 days rendering it without power/jurisdiction, hence void, ab initio and not enforceable under law as held in the reported judgments 2020 PTD 147, 2017 PTD 1756 , 2017 SCMR 1427 , 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 126,3, 2009 PTD 1978 , 2010 PTD (Trib.) 1010), 2011 PTD (Trib.) 79,12011 PTD (Trib.) 987, 2011 PTD (Trib.) 1146, 2012 PTD (Trib.) 1650, 2019 PTD 1961 , 2019 SCMR 1735 and 2019 SCMR 1989 .
8. I have gone through the operative part of the impugned Order passed by respondent No.4 in which I have observed with great concern that the lower forum has remanded the case to respondent No. 3 with the direction to assess the consignment once more. I have observed in the Order-in-Appeal that the learned Collector (Appeals) supported the contention of the appellant that the respondents Nos.2 and 3 have made assessments and revised the value of the goods without any cogent reasoning or through the issuance of speaking assessment orders.
Despite the recording of these findings in the impugned order and being cognizant of the illegalities of the assessment orders so challenged, it is astounding that the respondent No. 4 should have passed a speaking order in terms of Section 193A(4) in support of the appellant instead of remanding the case. I have perused subsection
(3) of Section 193-A of the Act which defines the powers vested by the responden t No.4 which, confirmed that the Respondent No.4 can only "extend, confi rm, modify I"- or annul" an order challenged before him. The absence of the phrase remand by the legislature substantiates the intent of the same not to grant such powers to the respondent No.4. Indeed this has been previously realized in 2014 PTD 956 which held that orders such as the impugned Order-in-Appeal by Respondent No.4 were void and illegal as the statute was bare of any enabling provision for respondent No.4 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 Shaft 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 redunda nt or surplus -- when the legislature required the doing of a thing in a particular manner 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 cessaretacitum"
9. 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 to and specifically the interpretation of law, legal propositions and observations made thereon and infield ratio decidendi observed by the Superior Courts, I, hereby find the value declared by the appellant to be inconson ant with the provisions of law as enumerated in this order hence I, set aside the assessment orders dated 13.02.2019 passed by respondent No.3 and Order-in-Appeal No.2215 dated 23.10.2019 passed by respondent No. 4 as ab-initio, null and void.
Furthermore the appellant be provided with a delay detention certificate under the provision of section 14A(2) of the Act, 1969.
10. Order passed and announced accordingly .