TAYABBA AGENCIES VS ADDITIONAL COLLECTOR OF CUSTOMS-IV, 2013 PTD-CUSTOMS-APPELLATE-TRIBUNAL-ISLAMABAD 2284 (2013)

2013 P T D (Trib.) 2284

[Customs Appellate Tribunal Bench-I, Islamabad]

Before Ch. Naimatullah, Chairman/Member (Judicial)

Messrs TAYABBA AGENCIES and 2 others

Versus

ADDITIONAL COLLECTOR OF CUSTOMS-IV and another

Appeals Nos. K-1404 to K-1407 of 2011, decided on 12/08/2013.

(a) Customs Act (IV of 1969)---

----Ss.129, 207 & 208---Customs General Order (XII of 2002), para. 31--Trans-shipment of goods to foreign country---Clearing Agent authorized by importer for submission of goods declaration---Scope---Submission of goods declaration by Clearing Agent amounted to authorization given by importer---Contention that customs officials could not ask the Clearing Agent/appellant to submit separate authorization from importer for transmitting goods declaration---Validity---Appellant Clearing Agent submitted goods declaration before the Customs for transmission of goods to foreign country---Submission of goods declaration by the Clearing Agent was deemed to be an authorization of the importer, the same was accepted by the Customs as valid and no separate authorization was required under any provision of the Customs Act, 1969 or under the (Afghan) Transit Trade Rules or para. 31 of Customs General Order 12 of 2002---Filing of goods declaration before customs amounted to authorization to Clearing Agent---Clearing Agent who undertook the job of transiting the goods were issued smart card by the Customs Agents Association---No separate authorization was required by the Clearing Agent from the importer of Foreign Country (Afghanistan)---In the presence of goods declaration, the customs never ever demanded separate authorization from any Clearing Agent and this was the adhered mechanism honoured by the customs since decades.

(b) Customs Act (IV of 1969)---

----Ss.129, 156(1) Cl.64 & 194-A---Appeal to Appellate Tribunal--- Trans-shipment of goods to foreign country (Afghanistan)---Show-cause notice to Clearing Agent---Scope---Clearing Agent/appellant was imposed a penalty in pursuance of show-cause notice on the charge of contravening the provisions of S.129 of the Customs Act, 1969---Appeal filed by Clearing Agent before Collector of Customs (Appeals) was dismissed---Contention was that no charge could be levelled against appellant under machinery provisions of law---Validity---Show-cause notice was served under S.129 of Customs Act, 1969 which was not a charging section rather the same was simply a machinery provision---No show-cause notice could be issued by any authority under S.129 of the Customs Act, 1969---No Rules were made under S.129 of the Customs Act, 1969 for (Afghan Transit) Trade at the time of issuing show cause notice---Show-cause notice had not mentioned any Rules which were contravened by the Clearing Agent---Order of adjudication being ultimately based on a ground which was not mentioned in show-cause notice was palpably illegal on the face of it---Appeal was allowed.

2001 SCMR 838; 2006 SCMR 1519 and Rehm Din v. Collector of Customs 1987 SCMR 1840 rel.

(c) Customs Act (IV of 1969)---

----Ss.129, 156(1), Cl.64 & 194-A---Customs General Order (12 of 2002), Para. 31---Appeal to Appellate Tribunal---Trans-shipment to foreign country/Afghanistan---Cross Border Certificate (CBC), submission of---Show-cause notice to Clearing Agent for non submission of cross border certificate---Scope---Importer of foreign country had imported consignments without payment of customs duty and other leviable taxes for onward transit to Afghanistan/foreign country through the appellant Clearing Agent---Customs authorities handed over the goods to the appellant Clearing Agent for transportation to foreign country/Afghanistan---Subsequently, the customs authorities asked the appellant Clearing Agent to submit the requisite cross border certificate in respect of the consignments---Appellant Clearing Agent failed to submit cross border certificate to the effect that the goods had crossed the border of Pakistan which meant that goods were consumed inside Pakistan, causing loss to the government exchequer---Customs authorities after serving show-cause notice had imposed a penalty on the appellant Clearing Agent for violating the provisions of S. 129 of the Customs Act, 1969 and causing loss to the government exchequer---Appeal filed by Clearing Agent was dismissed by the Collector of Customs (Appeals)---Contention of the appellant was that being Clearing Agent he was not responsible for submitting cross-border certificate and as such the penalty was illegal---Validity---Consulate General of foreign country/Afghanistan submitted an authority letter/undertaking to the Collector of Customs (Appraisement) for clearance and transportation of transit goods---Consulate General also undertook that the cargo in transit to Afghanistan would not be used/consumed in Pakistan and Cross Border Certificate would be furnished within fifteen days of its crossing the border---Consulate General authorized the Clearing Agent/appellant for clearance of the goods from Karachi port to transit to Afghanistan---Clearing Agent got the goods cleared from Karachi port and handed over to the National Logistic Company for trans-shipment, thereafter the job of Clearing Agent was concluded and it was for the Consulate or the Border Agent to submit Cross Border Certificate to customs---Impugned order of imposing penalty upon appellant clearing agent was declared as null and void---Appeal was allowed.

(d) Customs Act (IV of 1969)---

----Ss. 179(3) & 194-A---Appeal to Appellate Tribunal---Extension of time by Collector---Order in original was time barred---Scope---Impugned penalty order was passed by Collector of Customs after the expiry of prescribed time period---Effect---Order-in-original should have been passed within 120 days from the date of issuance of show cause notice or within a further extended period of 60 days due to emergence of "exceptional circumstances" prior to the expiry of initial period of 120 days after serving a notice to the person concerned---Order-in-original was passed after the expiry of entire period of 180 days without any extension prior to the expiry of 120 days---Order-in-original was silent in respect of extension of time---Order-in-original was barred by time and as such was without power/jurisdiction and not enforceable under law---Impugned order was set aside---Appeal was allowed.

1999 SCMR 1881; PTCL 2005 CL 841, 1998 MLD 650; 2004 PTD (Trib.) 2898; 2004 PTD 369; 2005 PTD 23; 2007 PTD 2092; 2008 PTD 609; 2008 PTD 578; 2009 PTD (Trib.) 1263; 2009 PTD 762; 2010 PTD (Trib.) 23; 2010 PTD (Trib.) 81; 2010 PTD (Trib.) 1146; 2010 PTD (Trib.) 1469; 2010 PTD (Trib.) 1631; 2010 PTD (Trib.) 1636; 2010 PTD (Trib.) 2117 and2006 PTD 340 rel.

(e) Customs Act (IV of 1969)---

----Ss. 179(4) & 194-A---Appeal to Appellate Tribunal---Extension of time by Federal Board of Revenue after the expiry of prescribed period of decision---Scope---Order-in-original imposing penalty on appellant was time barred---Effect ---Federal Board of Revenue extended the time period after 29 days of the expiry of entire period of 180 days---Validity---Board was not empowered to extend the time period of decision/adjudication after the expiry of prescribed time limit---Once the matter stood lapsed, no extension could be granted---Extending time by the Board was akin to giving a new lease of life into dead entity which tantamounted to flogging a dead horse---Event or documents had become dead on account of non-timely extension of time period prior to expiry of stipulated period was legally considered dead and new spirit could not be infused into it by any means or on account of any reason whatsoever--- Impugned orders were set aside---Appeal was allowed.

1999 SCMR 1881; 2007 PTD 117; Messrs Supra Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and another 2008 PTD 60; 2006 PTD 340; 1998 MLD 650; 2004 PTD (Trib.) 2898; 2004 PTD 369; 2005 PTD 23; 2007 PTD 2092; 2008 PTD 609; 2008 PTD 578; 2009 PTD (Trib.) 1263; 2009 PTD 762; 2010 PTD (Trib.) 23; 2010 PTD (Trib.) 81; 2010 PTD (Trib.) 1146; 2010 PTD (Trib.) 1469; 2010 PTD (Trib.) 1631; 2010 PTD (Trib.) 1636 and2010 PTD (Trib.) 2117 rel.

(f) Customs Act (IV of 1969)---

----Ss. 179(4) & 194-A---Appeal to Appellate Tribunal---Non-observance of time limit prescribed under provisions of Customs Act, 1969---Extension of time by Federal Board of Revenue after the expiry of prescribed period of decision---Effect---Order-in-original imposing penalty on appellant was time barred---Customs officials had taken stand that Board had extended the prescribed time period and mere non-observance of time limit would not render the lawful act as illegal---Validity---Customs authorities were not performing their duties under the Constitution but under the provisions of Customs Act, 1969---Any act done contrary to the provisions of said Act render the whole exercise nullity and ab initio void on account of suffering from lack of power/jurisdiction---Impugned order was set aside---Appeal was allowed.

Messrs Pakistan Ordinance Factory (POF),Wah Cantt. v. Collector of Customs, Sales Tax (Adjudication) 2012 PTD 1016 rel.

PLD 2006 SC 209 = 2006 PTD 769 distinguished.

(g) Customs Act (IV of 1969)---

----Ss. 193-A(3) & 194-A---Appeal to Appellate Tribunal---Extension of time period by Collector of Customs (Appeals)---Scope---Collector of Customs (Appeals) had passed order after the expiry of prescribed time period---Extension in time period was given after the expiry of initial period---Effect---Order-in-appeal should have been passed by the Collector of Customs (Appeals) within 120 days from the date of filing of appeal or within a further extended period of 60 days prior to the expiry of initial period of 120 days with reason to be recorded for extension in writing---Collector of Customs (Appeals) had not extended time period of decision prior to expiry of initial period of 120 days instead he granted extension after the expiry of said period--- Extension granted by the Collector of Customs (Appeals) was without lawful authority as time had been extended after the lapse of initial period of 120 days---Order-in-appeal was barred by time---Impugned orders were set aside---Appeal was allowed.

2007 PTD 117; 2008 PTD 60; 2007 PTD 2092; 2010 PTD (Trib.) 1636; 2010 PTD (Trib.) 2117; 2009 SCMR 1126; 2002 MLD 180; 2003 PTD 1354; 2003 PTD 1797; 2008 PTD 578; 2009 PTD 762; 2009 PTD (Trib.) 107; 2010 PTD 465; 2011 PTD (Trib.) 79; 2011 PTD (Trib.) 987; 2011 PTD (Trib.) 1010; 2011 PTD (Trib.) 1146and2012 PTD (Trib.) 1650 rel.

Nadeem Ahmed Mirza for Appellant.

Irfan Baig for Respondent.

Dates of hearing: 25th April, 15th May, 4th, 25th June, 8th, 22nd and 25th July, 2013.

ORDER

CH. NAIMUTULLAH CHAIRMAN/MEMBER (JUDICIAL).---These (4) appeals of the appellants are directed against Orders-in-Appeals Nos. 5946-5949 of 2011 dated 3-11-2011, passed by the respondent No. 2. These appeals have identical issues of law and facts and are, therefore being heard, dealt with and dispose off simultaneously through this common order in the light of judgment Hon'ble High Court of Sindh in Custom Reference No. 157 of 2008 S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Custom (Adjudicaiton-1) and others, Karachi.

2.Brief facts of the case are that Messrs Lunar products/ISAF, Kabul, Afghanistan had imported four consignments of assorted beverages vide IGM No. 6975 dated 3-3-2010 Index No. 202 vide IGM No.1014 dated 23-5-2008, Index No. 261 IGM No. 1590 dated 15-8-2008, Index No. 193 IGM No. 7075 dated 25-3-2010 and Index No. 108 and cleared the same without payment of customs duty and other leviable thereon for onward transit to Afghanistan through the appellant respectively. The goods were handed over to the appellants for transportation to Peshawar and then to Afghanistan. Subsequently, the appellants were asked to submit the requisite cross border certificate CBC in respect of Aforesaid consignment because in terms of clause (X) of the para. 31 of the CGO No. 12 of 2002 dated 15-6-2002 the crossing of border certificates were required to be submitted within fifteen days. The appellants however, failed to submit the requisite CBC's which clearly meant that the goods had not crossed border and, instead , had been consumed inside Pakistan in violation of the provisions of law quoted in the impugned order. Had the misappropriated goods been imported in Pakistan. The Government would have got an amount of Rs.1,312,002.00 as duty/taxes. Thus a mis-preparation of the goods under reference had caused revenue loss of Rs.1,312,002.00 to the Exchequer besides violating the import restriction imposed on import of alcoholic beverages. The appellants were charged under the relevant provisions of law and the respondent No. 1 held vide impugned Order-in-Original No. 7 of 2011 dated 30-4-2011 charges against the appellant has been established. The operative para of the same is reproduced as under:--

"I have gone through the case record as well as written and verbal submission of respondent i.e. Messrs Tayabba Agencies, Karachi (CHAL No. 2045) and departmental representative. The goods were imported by Messrs Lunar Product/ISAF , Kabul, Afghanistan and the goods were lifted for transit through NLC. The carrier/clearing agent had failed to transport the cargo for final destination and did not produced the cross border certificate to the effect that the goods have crossed the border for Afghanistan hence violated the provision of Section 129 of the Customs Act, 1969. The offence is therefore established as well as admitted by the carrier they have not delivered the goods at final destination failing which they shall pay the duty and other taxes. Therefore, in terms of power vested in me under clause (64) of section 156(1) of the Customs Act, 1969, the carrier Messrs NLC is directed to pay duty and other taxes amounting to Rs.1,312,002.00. A penalty of Rs.25,000.00/(each) on NLC and the clearing agent. The amount of duty and other taxes/penalty are to be paid within a period of 14 days failing which recovery proceeding under section 202 as of the Customs Act, 1969 read with recovery rules as well as action under licensing Rules notified vide S.R.O. No. 450(I) of 2001 shall be initiated."

3.The appellant challenged the vires of the order before the respondent No. 2 through appeals dated 1-6-2011, who rejected the appeal while holding that these are absolutely without merit, the operating Para. 6 of the impugned order read as under:--

I have thoroughly examined the entire case record and given very careful consideration to the arguments advanced before me "It is an admitted position that the goods imported through the impugned four (4) consignment had been given into the care of the appellants for onward transportation to Afghanistan and to the appellant had submitted undertaking to the effect that they would ensure safe transportation of the submitted undertakings to the effect that they would ensure safe transportation of the same at their final destination. The evidence on record also establishes that the appellants had neither been appointed by the actual importer (that is, Messrs Lunar Products/ISAF Afghanistan) nor the requisite documents had been directly received by them from the importer instead, the appellants had acted on the advice/directive of one Sohail. Since the importer is not available in Pakistan and it is the clearing agents (the appellants in these cases) at the port of entry of the goods who got the goods cleared without payment of duty/taxes chargeable thereon, the principle responsibility lay under clause (X) of para. 31 of CGO 12/2002 dated 15-6-2002 read with section 209 and other provisions of the Customs Act, 1969 as well as the understanding submitted by them. Keeping in view the role of the appellant in misappropriation of the goods and the extent of duty taxes (that is Rs.436775.00) involved in these cases. I am of the considered view that the penalty of Rs. 25,000.00 imposed on each of the appellant I unduly lenient. I, rule that the arguments advanced by the learned consultant, reproduced at para. 3 above are untenable and the case-law quoted by him is not relevant to the facts and circumstances of the instant cases. Consequently, the appeals being absolutely without merit are rejected accordingly"

4.The appellants challenged the above orders by way of the referred in above appeals. The consultant Nadeem Ahmed Mirza appeared on behalf of the appellant who reiterated the arguments incorporated in the memo. of the appeal and supplied the copies of relied upon citation.

The respondent No. 2 in order dated 3-11-2011 failed to distinguish or discuss the law including citation, instead made academic discussion of personal nature in regards to fiscal statute, which is not sustainable in comparison to the Law and the judgment of Hon'ble superior Courts of Pakistan. Hence he erred in passing the order and it is not sustainable in law as this is clearly contrary to the Law/Rules, being erroneous and not in consonance of law, equity and natural justice and the said fact further stood validated from the following:-

(a)That the respondent No. 2 in para 5 of the order has incorporated the comments of the respondent on the memo. of appeals. No such comments were ever submitted by the respondent No. 1 as those were not supplied to the appellant at the time of hearing. It seems that the respondent No. 2 obtained the said comments at belated stage and those also in accordance withhiswhimsandwishes and dictated versionforusingthose as a tool for rejecting theappealdespitemeritallowingon the basis of grounds of memo. of appeal. The said act of respondent 2 render the comments as not admissible under law as these were obtained at the back of the appellant and at belated stage and order-in-appeal so passed amounts to mala fide and intellectual dishonesty, hence ab inito, null and void.

(b)That the clearance of the goods was obtained by the appellant strictly in accordance with the provision of section 129 of the Customs Act, 1969 and upon presenting documents/authorization of Consulate General of Afghanistan and NOC of NLC supplied by the shipper in terms of para 31 of the Customs GeneralOrder 12 of 2002 read with procedure laid down for Afghan Transit Goods in Public Notice 16 of 2000 dated 3-9-2000.

(c)That invoking of section 129 of the Customs Act, 1969 in the show cause notice is patently erroneous as the said section is a machinery section not charging hence no show cause notice can be issued under the said provision of the Act. Likewise reference to para. 31 of CGO 12/2002 dated 15-6-2002 is without any basis as CGO in none of its sub-para lays down any condition on the appellant for ensuring crossing of the border of the transit goods and neither direct the appellant to submit cross border certificate in confirmation of the said fact. The show cause notice on the face of it suffer from legal infirmity, hence void and ab initio as held by the superior Court of Pakistan in reported judgment 2001 SCMR 838 and 2006 SCMR 1519.

(d)That it is the duty of Consulate/Embassy or their representative to re-submit the duplicate copy of Port/Airport of origin within 15 days of the crossing of borders of the goods as enunciated in Clause (x) of para 31 of CGO 12/2002, which is the Consulate General of Afghanistan and National Logistic Cell not the appellant and for that reason he has not submitted any sort of undertakingwiththe Collectorate ofAppraisementandthesaid fact stood verified from the fact that the same is not available in record and was not provided to the respondent No.2 on 4-10-2011 by the representative of respondent No. 1 and neither the comments incorporated by the respondent No. 2 at para. 5 contain any number or date of the said undertaking. Any action which is based upon no evidence is not permitted by law and Apex Courts laid down the law in this regard in the reported judgment 1991 PTD 551.

(e)That in terms of para. 6 of the Public Notice No. 16 of 2000 dated 30-9-2000 it is the duty of the Customs Station at the border to send cross border certificate within 45 days of the receipt of documents from clearance Collectorate as enumerated in para. 2 of Public Notice. Under no circumstances the respondent cannot attribute the duties of Customs Station at border to the appellant and neither he can be charged for any dereliction of duties of officials of the Customs Station at Border. Hence the charges levelled in the show cause notice and subsequently held in the order in original/appeal are of no legal effect being based on absurd interpretation of the provision of the Act and para 31 of CGO 12/2002 and Public Notice No. 16/ 2002. Rendering the show cause notice as well as order-in-original/appeal, void, null and ab initio.

(f)Thattheshowcausenoticetotheappellantwasissuedon7-7-2010 under section 180 of the Act, 1969 and order under the proviso of subsection (3) of section 179 of the Customs Act, 1969 should had been passed by the respondent within 120 days from the date of issuance of show cause notice or within a further extended period of 60 days by the Collector and further by Board under subsection (4) of section 179 of the Customs Act, 1969 for some exceptional circumstances and recording of the exceptional circumstance by the Collector/Board after giving a notice to the person against whom the order has to be passed as held by Supreme Court of Pakistan in its reported judgment 1999 SCMR 1881 Khalid Mehmood v. Collector of Customs, Customs House, Lahore. Their lordship of Supreme Court held:

"S. 168----If initial period of two months, envisaged in S.168, Customs Act, 1969 is allowed to go by without any extension having been made, vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting my extension--- Question whether an extension , if any was actually made, within the initial period of two months from the date of seizure and merely because it purported to have been to so made, within time may not be itself be enough the contrary may be shown but, ordinary within the Customs Jurisdiction alone."

"Thus if initial period of two months, envisaged in S.168, Customs Act, 1969 is allowed to go by without any extension having been made, a vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting any extension--- correspondingly as always , it would remain a moot question whether an extension, if any, was actually made within the initial period of two months from the date of seizure and merely because it purports to have been so made within time, may not be itself be enough the contrary may be shown but, ordinarily within the Customs Jurisdiction alone."

(g)That as mentioned at (iii) of para wise comments on ground of appeal by the respondent No. 1 and incorporated in respondent No. 2 in page 5 of the order that the extension of further 60 days was given by the Collector on 16-10-2010, i.e. invalid and of no legal effect as no notice was given to the appellant as per the law laid down by the Supreme Court of Pakistan, beside that extension was given by the Collector in mechanical manner on an omni bus request of respondent No. 1 without any reason or exceptional circumstances and recording of those. Such type of extensions are in negation of the subsection (3) of section 179 of the Act, hence illegal as held by Apex Court/Supreme Court in reported judgments 2004 PTD 369, 2005 PTD 23, 2007 PTD 2002, 2011 PTD 235 and 2011 PTD 1185.

(h)That as regards the extensiongivenbytheBoardforfurther90 days on 2-2-2011 vide letter C.No. 2(6)/Cus.Jud/2011 i.e. also illegal by virtue of the fact that the period of 180 days stood lapse on 4-1-2011 and extension cannot be given after the lapse of time. In principal if the extension was to be accorded it should had been prior to 4-1-2011 not after that. In words of Superior Judicial Fora time extension given in such cases is akin to giving a new lease of life into dead entity. It is tantamount to flogging a dead horse if an event or document has become dead on account of non timely extension of time period prior to expiry of entire stipulated period. It is legally considered dead and new spirit cannot be infused into it by any means or on account of any reason whatsoever. Following extract from the judgment of the Hon'ble Sindh High Court reported as 2007 PTD 117 is relevant to the merit of this case:

We are of the considered opinion that once a matter become barred by time then the subsequent enhancement in the period of limitation shall not have the effect of reopening the passed and closed transaction and resuscitating the matters which attained finality and had gone in the annals of history.

The same principle has been laid down by the Hon'ble Lahore High CourtinthecaseofMessrs Super Asia Muhammad Din Sons (Pvt.)Ltd. v. Collector of Sales Tax Gujranwala and another reported as 2008 PTD 60:--

(i)"Once limitation had started to run and had come to an end the assessee had acquired a vested right of escapment of assessment by lapse of time."

(ii)The claim of the revenue that the prescribed limitation of 45 days from completion of adjudication proceedings as provided through Finance Ordinance, 2000 and enhanced to 90 days by Finance Act, 2003 is merely directory cannot be accepted. It is settled law that where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen the prescription of time is deemed directory. However, where a public functionary is empowered to create liability against a citizen only within the prescribed time, it is mandatory. The acceptance of contention of the revenue in that regard will make a provision of law redundant and nugatory. Redundancy or superfluity of an act of Parliament and a provision of law cannot be readily accepted. All the more so when the prescribed limit is beneficial for the citizen and restricts the executive power to touch the pocket of a tax payer thereby creating threat after its expiry even if there was good case for creation of liability he will not be dragged in."

(i)Thatsincetheentireperiodof120daysstoodexpiredon4-1-2011, without any valid extension, the order-in-original become barred by limitation period by 176 days rendering itand subsequent order passed by respondent No. 2 on that as without power/jurisdiction, hence ab initio null and void andnot enforceable under the law. The said ratio was further fortified by the Superior Judicial Fora in judgments un-reported/ reported viz., Order in Sales Tax Appeal No. K-255/01 (New No.K-286/04) and K-309/01, 2006 PTD 340 and PTCL 2005 CL 841, finding/decision in Complaint No. 958-L/2005, 1998 MLD 650, 2004 PTD (Trib.) 2898, 2004 PTD 369, 2005 PTD 23, 2007 PTD 2092, 2008 PTD 609, 2008 PTD 578, 2009 PTD (Trib.) 1263, 2009 PTD 762, 2010 PTD (Trib.) 23, 2010 PTD (Trib.) 81, 2010 PTD (Trib.) 1146, 2010 PTD (Trib.) 1469, 2010 PTD (Trib.) 1631, 2010 PTD (Trib.) 1636 , 2010 PTD (Trib.) 2117.

(j)That the appeal with the respondent No. 2 was filed on 1-6-2011 and an order under the proviso of subsection (3) of section 193-A of the Customs Act, 1969 should had been passed by the respondent No. 2 within 120 days from the date of filing of appeal i.e. on or before 29-9-2011 or within a further extended period of 60 days prior to the expiry of initial period of 120 days with reason to be recorded for extension in writing. No extension was granted by respondent No. 2 prior to expiry of initialperiod of 120daysinsteadextensionwasgrantedon3-11-2011 as evident from Para 5 of the order-in-appeal reading as "that the proceeding in this case could not be finalized within the stipulated time limit due to certain un-avoidable circumstances and administrative reasons, despite of the fact there were no un-avoidable circumstances or administrative reason" and neither any exception because appellant attended all the hearing and sought no adjournment and the respondent No. 1 was functioning in the capacity of Collector (Appeal) from the date of filing appeal to the date of order in appeal. Resultant the extension granted on 3-11-2011 is without any lawful authority as it has been extended after lapse of initial period of 120 days, hence the order-in-appeal is barred by 35 days rendering it void and ab inito as held by the judicial forums in its reported judgments 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 1146, 2011 PTD (Trib.) 987, 2011 PTD (Trib) 1010, Customs Appeal No. K-313/2010 dated 2-8-2011, Customs Appeal No. K-320 of 2010 dated 2-8-2011, Customs Appeal No. K-313 of 2010 dated 2-8-2011.

(k)The order-in-original/appeal are nullity to the provision of subsection (3) of sections 179 and 193-A of the Customs Act, 1969. Hence without power/jurisdiction and coram non-judice. The super structure built on such foundation no matter how strong it is has to fall. Refer 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". Resultant the contravention report prepared by Directorate General of Post Clearance Audit and show cause notice issued by your authority are ab inito, illegal and void.

(l)The appellant carves his right to add any fresh grounds at the time of hearing beside placing any valid incriminating evidence/ documents

5.The representative of respondent No. 1 maintained that the order of respondent are correct and in support of his stance submitted written cross objection while raising preliminary objection and rebuttle on the grounds of appeal vide dated 21-5-2012 signed by Deputy Collector Afghan Transit Group, MCC of Appraisement, Karachi reproduced here-in-below:--

Preliminary objections:

It is most reverently submitted that the subject appeal is not maintainable as the appellant has failed to deposit the amount of penalty adjudged against him in the impugned Order-in-Original No. 7 of 2011 dated 30-4-2011, as required in terms of section 195-B of the Customs Act, 1969. It is therefore respectfully prayed that this Hon'ble Tribunal may be pleased to reject and dismiss the instant Appeals, as being not maintainable, unless the appellant furnishes valid proof of deposit of the impugned amount under the express provisions of law.

Grounds:

(a)Denied vehemently being conjectural and baseless. The impugned order was passed by the respondent No. 2 after affording due opportunity of hearing to the appellant. The representative of the respondent No. 1 duly submitted their written comments in the matter during the course of hearing which the appellant rebutted. The appellant also availed of his opportunity to cross-examine the prosecution during hearing. He cannot therefore take a plea of "non-hearing" at this belated stage. The position taken by the appellant in this para is therefore untenable.

(b)Denied vehemently , as already submitted at Sub-Para No. 3 above.

(c)Denied vehemently, appellant's objection with regard to section 129 of the Customs Act, 1969 is untenable as this section is the governing law, whereby rules to regulate the flow of Afghan Transit Cargo through Pakistani Territory have been framed. Mention of this section in the impugned show cause notice was therefore in order. Similarly, appellant's plea with respect to para. 31 of CGO 12/2002 dated 15-6-2002 is also frivolous. The relevant extract of para. 31 of CGO 12/2002, whereby the legal responsibilities of the clearing agent (appellants have been enjoying) is as reproduced hereunder , for ease of reference:

"(ix)The Customs staff at the port/Airport of Exit shall verify the Shipping/Air Line Seal Customs Bullets Seal and endorse the same on Duplicate and Quadruplicate copy of the trans-shipment permit. They shall retain the quadruplicate copy for their own record and hand over the duplicate copy to the transporter for re-submission by the representative of the consulate/shipping Airline Agent at the Port of Origin.

(x)the Consulate /Embassy or their representative shall re-submit the Duplicate copy at the Port/air port of origin within 15 days of Crossing Border by the goods."

Since the instant appellant is the duly authorized representative of the consignee he cannot absolve himself of his legal obligation to ensure crossing over of the impugned goods into Afghanistan and to produce CBC in this regard to the Port of Departure.

(d)Denied as per sub-para (c) above. It is evident that the appellant is fully responsible, as having been nominated on behalf of the consignee and was entrusted for safe transportation of the consignment in question.

(e)Denied, as being totally misleading, illogical and against the letter and spirit of law. Without prejudice to the afore-said/ undertaking of the Afghan Consulate General Karachi whereby the legal obligation of the instant appellant (being the Authorized clearing Agent of the consignee), are clearly spelt out, it must be appreciated that even otherwise importer (consignee) are clearly spelt out, it must be appreciated that even otherwise. Importer (consignee)/his authorized clearing agent (appellant) are jointly and severally responsible for safe crossing over of the Afghan Transit Goods into Afghanistan. The clearing agent (Appellant) cannot be said to have discharged his legal duties, under sections 208 and 209 of the Customs Act, 1969 until and under cross border certificate in respect of the relevant AT consignment is received at the Port of department , in line with the provisions of the noted CGO. As regards the legal obligation of the customs authorities in this regard, these should not be seen in Isolation. The corollary is that how could the Exit Customs Station be expected to send the Cross Border Certificate to the Port of Origin, on their own, if the goods never actually reached border and were in fact pilfered en-route. The Hon'ble Appellate Tribunal may appreciate that the Afghan Importer, sitting in a foreign land, cannot pilfer the Afghan Transit Goods inside Pakistani territory, all by himself unless such nefarious act is fully supported and facilitated by his local accomplices i.e. the clearing agent and the bonded carrier.

(f)Denied being totally misleading the instant order is not hit by limitation. It may be observed that show-cause notice in the impugned matter was issued on 7-7-2010, the statutory time limit of 120 days, in terms of section 179(i) of the Customs Act, 1969 was to expire on 6-11-2010. However, since the matter could not be disposed off within the prescribed time lines, on account of ongoing proceeding/non reply of the bonded carrier, the Collector Customs Appraisement, being the competent authority under section 179(3), extended the time limit for adjudication of the matter by a further period of 60 days with effect from 6-11-2010, in terms of his autographic order dated 16-10-2010 (Copy of the Order is appended as Annex-B). Since the matter could not be disposed off even during such extended period due to non appearance of the respondents, the Collector (MCC Appraisement) approached FBR in terms of section 179(4) ibid, to meet the precepts of natural justice and due process, for further extension in time limit vide his letter No. SI/MISC/ 408/2010-TG dated 21-1-2011 (Annex-C) FBR extended thetime limit for further 90 days as applied for, in terms of letter C.No. 2(6) Cus-Jud/2011 dated 2-2-2011 (Annex-D). The matter was finally disposed off in terms of the impugned Order-in-Original No. 7 of 2011 dated 30-4-2011, that is, within the time-lines extended by the Authority.

Without prejudice to above, even otherwise considering the provisions of Article 154 of the Constitution of Islamic Republic of Pakistan and also taken into consideration the dictum settled by the Hon'ble Apex Court in the case of Assistant Collector of Customs v. Triple M (Pvt.) Ltd., reported in (PLD 2006 SC 209 = 2006 PTD 769), in the above said terms.

"No order can be scrapped or annulled or set aside only on the ground that the same has been passed with an reasonable delay."

It is further to be observed that the time limit prescribed in the proviso of subsection (3) of section 179 is not mandatory but is a directory in nature. This issue has already been decided by the Hon'ble Appellate Tribunal, Islamabad Bench-II in Appeals Nos. 154/ST/IB/2005 and 155/ ST/IB/2005 decided on 28-11-2005. Further the Hon'ble Supreme Court of Pakistan in the case of State v. Pyanda Gul 1993 SCMR 311 has been decided as under:--

In the reported case the issue before the august Court was whether the provision of 171 of the Customs Act, 1969 are mandatory or not and the august Court held that these were not mandatory since any consequences of nullification for non compliance thereof were not given in the said section itself or elsewhere in the Customs Act, 1969. Secondly, the concept of time limit is also incorporated in Article 254 of 1973 Constitution but according to this Article if any act or thing required by the Constitution to be done within the given period is not done within the time limit the doing of the Act or thing after the expiry of the given time limit shall not become invalid or ineffective by reason only that it was not done within the prescribed time limit. On the analogy of Article 254 of the Constitution this Tribunal has consistently held that the time limit prescribed in proviso of subsection (3) of section 33 of the Act is not mandatory but is a directory proviso."

It is clear from the above quoted authoritative judgments of the Superior Fora, that the appellant's plea regarding limitation has no legal basis, since they have no case on merits, they are attempting to confuse the matter by invoking misplaced reference to limitation. Appellant's legal responsibility is fully established in terms of "authorization letter/undertaking" as noted above, issued to him by the Consulate General of Afghanistan.

(g)Denied being misleading in terms of the foregoing submission.

(h)Denied in the light of factual and legal submission made in the foregoing paras.

(i)Denied as above.

(j)Denied in the light of factual and legal submission made in the foregoing paras.

(jj)Denied as above.

(k)Denied as above.

6.The appellant in exercise of his guaranteed right submitted rejoinder comments dated 11-6-2012 on the submission of the representative of respondent No. 1 in which he stated as under:--

(i)That taking refuge under the provision of Section 195-B of the Customs Act, 1969 by the respondent Collectorate in the offered comments is manifestly erroneous, misconceived, illegal and above all discriminatory as the said provision of the Act empowers the Appellate Authority/Tribunal to dispense with the deposit of adjudged amount through order-in-original, for the sake of justice, fariplay and to mitigate the caused undue hardship to such appellants, irrespective of the expression of the provision which read as "the person desirous of appealing against such decision or order against an issue or a matter wherein goods are not under control of customs authority shall pending the appeal deposit with the proper officer the duty demanded or penalty levied".

(ii)That even otherwise if the person is not desirous of depositing the adjudged amount of duty or imposed penalty, he is not barred under section 194-A of the Customs Act, 1969 and neither the Appellate Tribunal from hearing the appeal for issuance of decision on merit as the right of appeal granted to an aggrieved person against any decision or order passed under the provision of law by customs officer within 60 days under the proviso of section 194(3) of the Customs Act, 1969 and the right of appeal is an in-alienable right and cannot be made in effective/redundant on account of non deposit and Tribunal is bound to grant opportunity of personal hearing to the parties to the appeal in terms of section 194-B(1) of the Act and then pass an order thereon "as it think fit confirming, modifying or annulling the decision or order appealed against. The pre-requisite for passing "such an order as he think fit" and only "after giving both parties to the appeal an opportunity of being heard or the Tribunal may also record additional evidence and decide the case but shall not remand the case for recording the additional evidence."

(iii)The provision of section 195-B of the Customs Act, 1969 is synonymous to the provision of pre-revised subsection (4) of section 45-B of the Sales Tax Act, 1990, so as far as it relates to deposit of adjudged amount before presenting appeal and it is directory in nature and not mandatory. Hence, on the basis of non-deposit of the adjudged amount, the filed appeal cannot be considered as invalid and neither can be dismissed straight away as it is nullity to the Quran and the Sunnah and the Constitution of Islamic Republic of Pakistan 1973. Even otherwise no consequences are flowing in the expression of section 195-B regarding the fate of appeal, in case of non deposit of adjudged amount , thus it cannot be taken to mean that non-deposit would automatically mean rejection of appeal in "Limine". As held by the Lahore High Court, Lahore in reported judgment PTCL 1993 CL 656 Messrs Meaple Leaf Cement Factory, Lahore v. The Collector of Central Excise and Sales Tax (Appeals), Lahore and others that "In the Islamic polity and system of dispensation of Justice the right of appeal has been held to be a natural right vesting in an individual which cannot be taken away even by a provision in the enactment ---In the Islamic polity and system of dispensation of justice, the importance of the right of appeal cannot be understated it has been held to be a natural right vesting in an individual which cannot be taken away even by a provision in the enactment. It is ordained by Holy Quran and Sunnah of Holy Prophet that an affected person must have a right to go in appeal against the decision. In Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6), the Supreme Court went to the extent of striking down the laws, which did not provide for a right of appeal". The same view was endorsed by the Lahore High Court and Customs Excise and Sales Tax Appellate Tribunal in reported judgment 1993 CLC 1405 Messrs Riaz Bottlers (Pvt.) Ltd. v. Collector (Appeals) Central Excise and Sales Tax, North Zone, Lahore and 3 others and 2005 PTD (Trib.) 731, Billal Fabric Ltd. and 9 others v. Collector of Customs, Excise and Sales Tax by the Customs, Excise and Sales Tax Appellate Tribunal in its reported judgment PTCL 2004 CL 480 Messrs Bilal Fabric Ltd. and 9 others v. Collector of Customs, Excise and Sales Tax. Whereas Article 10-A of the Constitution of Islamic Republic of Pakistan guarantees a fair trial to every citizen of Pakistan and Section 195-B is conflicting to that, hence nullity and ultra virus.

FACTS

(1)That as stated by the subordinate of respondent No. 1 in the comments that Mr. Sohail of (Blue Sea Shipping Line) was neither the importer/consignee nor the lawful owner of the goods-in-question and stranger to the material aspect and was also not lawful authorized person of Messrs Lunar Product/ISAF Kabul, Afghanistan then why the Consulate General of Pakistan entertained him and issued authority letter/undertaking dated10-3-2010 for the clearance and transportation of the goods through the appellant and why the respondent No. 1 officials entertained the good declaration for clearance of the consignment from Karachi by the appellant. The change stance taken by the subordinate of respondent No. 1 is astonishing and perplexing and speaks loudly about inefficiency and dereliction of duties on the part of the respondent No. 1 and his subordinate and for that appellant cannot be held responsible as it is settled principle of law in Customs Jurisprudence/through a series of judicial fora of Indian and Pakistani Jurisprudence starting with the case of Monno Industries Ltd. v. GOP reported as 2002 MLD 1980 State Cement Corporation v. GOP, wherein it is held that "if the wisdom of Customs Authorities for invoking sections 32 and 32A despite giving correct declaration is acceded to that no responsibility lays upon the hierarchy of the Customs officials to levy and assess the duty according to law. The provisions of section 129 of the Customs Act, 1969anddirection contained in para. 31 of CGO 12/2002 dated 15-6-2002 in such a state of mind would become redundant." The observation of the Honourable Late Justice Sabihuddin Ahmed in the case of State Cement v. Government of Pakistan reported as 2002 MLD 180 would once again ridicule the irrational approach of the Customs Authorities, which read as "We are rather amazed at the line of reasoning put forward to the effect that while an assessee is required to interpret the law and relevant notification correctly and could be held guilty of apenal offence for not doing so in terms of section 32(1) of the Customs Act, no responsibility of any kind would devolve on the customs officials." We may add that in case of short levy or evasion became possible due to collusion of some customs officials the mere fact that no such customs official involve and no notice was served in terms of section 32 of the Customs Act, indicate that the entire exercise was mala fide. Whereas the Hon'bleSupremeCourtofPakistanwhiledismissingtheappeal held in the reported judgment 2011 PTD 2220 Collector of Customs, Preventive, Karachi v. Pakistan State Oil Karachi that "where huge loss has been caused to GovernmentExchequer namely due to the negligence of relevant functionaries of the customs department against which action may be initiated by the concerned Collector of Customs for dereliction of duty and being inefficient which amounts to misconduct.

(2)The duties for transportation of the goods from Karachi to Kabul is entrusted to the National Logistic Cell, hence it is erroneous on the part of the respondent No. 1 and his subordinate to state it was the duty of the appellant. No mis-declaration in material particular was made by the appellant in the good declaration and he performed his duty in accordance with direction contained in para. 31 of the CGO, 2002. His duties stands completed once the goods are loaded on the carrier of NLC, thereafter it is for the NLC to carry the goods to the border for cross bordering and onward to the destination as alleged by the respondent No.1. The appellant duties cannot be stretched beyond Karachi.

(3)The respondent No. 1 correctly formed opinion that the undertaken was given by the Consulate General of Islamic Republic of Afghanistan for crossing of border in terms of sub-para (x) of para. 31 of CGO, 12/2002, it was on part of Consulate General of Afghanistan or Shipping Company to submit cross border certificate within 15 days of cross of border not on the part of appellant, if the impugned CBC is not submitted by the Consulate General of Islamic Republic of Pakistan or the Shipping Line the fault lies on them and so on the part of respondent No. 1 and his subordinates of not persuing the submission of cross border certificate, this lapse amounts to inefficiency, dereliction of duties.

GROUNDS

(a)The appellant stands to his stance taken in ground (a) of the memo. of appeal and the subordinate of respondent No. 1 failed to contravert through incriminating evidence that the comments submitted by the respondent No. 1 with the respondent No. 3 were ever supplied to the appellant by the respondent No. 3 for submitting rejoinder comments and so the recording of the proceedings at the time of hearing before respondent No. 3 mere submission is not enough any action which is based upon no evidence is not permitted by law and Supreme Court laid down the law in this regard in the reported judgment 1991 PTD 551.

(b)The referred sub-paras (ix) & (x) of para. 31 of CGO 12 of 2002 dated 15-6-2002 confirms the stance of appellant that he figure no where in that, instead the Consulate and Shipping/Airline Agents. The respondent cannot stretch the word Consulate and Shipping/Airline Agent as to "clearing agent" for validatingtheir inapt interpretation. Even otherwise, it is settled principle of interpretation that in interpreting the taxing statute, the customs must looks to the words of the statute and interpreted in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax nothing is to be read in, nothing is to be implied. One can only look fairly at the language used, nothing else to be done" as held by the High Court and Supreme Court of Pakistan in their reported judgments Abbassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463; Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan 1990 PTD 29; Messrs English Biscuit Manufacturers Ltd. v. The Assistant Collector, Central Excises and Land Customs, Landhi Division, Karachi 1991 PTD 178; Kohinoor Textile v. Federation of Pakistan 2002 PTD 121; Messrs Nadeem Electronics (Pvt.) Ltd. v. Collector of Customs, Central Excise and Sales Tax 1999 PTD 1912; Cape Brandy Syndicate v. I.R. (1921) 1 KB 76; Canadian Eagle Oil Co. Ltd. v. The King 27 TC 205; Hirjina and Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax 1971 PTD 200; Muhammad Amir Khan v. Controller of Estate Duty, Government of Pakistan PLD 1962 SC 335 and A. Ghafoor v. The State PLD 1965 Quetta 10; Messrs Haswani Hotels Limited v. Government of Pakistan and 5 others 2004 PTD 901; Bechu Bai F.E. Dinshaw, Karachi v. Commissioner of Income Tax 1967 PTD 170; S.G. Mercantile Corporation P. Ltd. v. Commissioner of Income-tax, Calcutta (1972) 83 ITR 700; Commissioner of Income-tax Madras v. The Madras Cricket Club (1934) 11 ITR 209; Bellygunge Bank Ltd., Calcutta v. Commissioner of Income-tax Bengal (1946) 14 ITR 409; The Commercial Properties Ltd. The Commissioner of Income-tax, Bengal (1928) 3 ITR 23; Additional Commissioner of Income-tax, Bihar v. Lawlys Enterprises (P.) Ltd. (1975) 100 ITR 369; Commissioner of Income-tax, Lucknow v. Chandra Agro P. Ltd. (1979) 117 ITR 251; Commissioner of Income-tax, Poona v. Alpana Talkies (1983) 139 ITR 1055 and Messrs Mehran Associates Ltd v. The Commissioner of Income-tax, Karachi 1993 SCMR 274.

(c)The appellant was not authorized carrier for transporting the goods, instead the National Logistics Cell to whom the goods were delivered by the customs after gate out at Karachi and it is for them to transport the cargo of ATT to the border and hand over that to the "Nominated Border Agent" of the importer for crossing of the border, if the goods as alleged were pilferaged during the journey to the border it is for the NLC to answer the said allegations not for the appellant, appellant can only be asked for any act and commission done by him during the course of obtaining clearance of the goods in contravention of the directioncirculatedbyFBR in para. 31ofCGO12/2002dated 15-6-2002. Hence, the stance of the respondent No. 1 subordinate that the appellant was entrusted the job for safe transportation of the Afghan Transit consignments is without any substance as it is nullity to the facts and direction of para. 31ibid.

(f)That the comments of the respondent No. 1 subordinate against ground (e) of the memo. of appeal are mis-leading as these are contrary to the fact and the annexed undertaking of the Consulate General of Afghanistan in which the Consulate undertook that "the cargo in transit to Afghanistan will not be used/or consumed in Pakistan" In the light of the said undertaking the executer of undertaking should had been asked for the alleged pilferaged and about the cross border certificate. In the said undertaking the Consulate also undertook that "the cross border certificate will be furnished within 15 days of crossing of border at Torkham/Chaman by clearing agent concerned" which mean the concerned clearing agent is the border agent not the appellant who is in fact a clearance agent at Karachi and has no control on the crossing of the border of the consignment. No duties for crossing of the border are spelled out either in section 129 of the Customs Act, 1969 or para. 31 of CGO 12/2002 for the clearance agent operating at Karachi in regards to submission of cross border certificate. Which also stood fortified from sub-para (ix) & (x) of the CGO 12/2002, which speaks about Consulate/Shipping/Airline Agent only.

(e)That as regard to the reference of sections 208 and 209 of the Customs Act, 1969 i.e. out of place as these have not been spelled out in show-cause notice and order-in-original issued/ passed by the respondent No. 1, putting reliance on that in the comments rendered the comments palpably illegal by virtue of being outside the charter of the show cause notice and order-in-original. It is well-settled principal of law that grounds not mentioned in the charter of show-cause notice cannot be subsequently taken up at later stage in any manner including the instance comments. Reference is placed on the reported judgment 2004 PTD 1449 Messrs Exide Pakistan Limited, Karachi v. Deputy Collector, (Adjudication-III) and 1987 SCMR 1840 The Collector of Central Excise and Land Customs and others v. Rahm Din and 2010 PTD (Trib.) 175.

(f)That the comments submitted against ground (f) of the memo. of appeal and Annex-B substantiate the stance of appellant that the extension granted by the Collector of Customs (Appraisement) is nullity to law as it has been given in mechanical manner on an omni bus request of the respondent No. 1 that as reply to the NLC is awaited, which is nothing to do with the appellant and neither non submission of reply debar the adjudicating authority from passing order and these remarks shows that there were no "exceptional circumstances" and nor these recordings confirm those. Such type of extensions are in negation of subsection (3) of section 179 of the Act, hence illegal and void as held by High/Supreme Courts in reported judgment 2004 PTD 369, 2005 PTD 23, 2007 PTD 2002, 2011 PTD 235 and 2011 PTD 1185.

That similarly the extension granted by the Board for further 90 days on 2-2-2011 vide letter C.No. 2(6)/Cus.Judicial/2011 is also illegal by virtue of the fact that the entire period of 180 days stood lapsed on 3-1-2011. No extension can be given after lapse of time. In words of Superior Judicial Fora time extension given in such cases is akin to giving a new lease of life into dead entity. It is tantamount to flogging a dead horse if an event or documents has become dead on account of non timely extension oftimeperiodpriortoexpiryof stipulated period.Itislegally considered dead and new spirit cannot be infused into it by any means or on account of any reason whatsoever. Following extract from the judgment of the Hon'ble Sindh High Court reported as PTCL 2007 CL (sic), 2008 PTD 60, 1999 SCMR 1881, Order in Sales Tax Appeal No. K-255/01 (New No. K-286/04) and K-309/01, 2006 PTD 340 and PTCL 2005 CL 841, finding/decision in Complaint No 958-L/2005, 1998 MLD 650, 2004 PTD (Trib) 2898, 2004 PTD 369, 2005 PTD 23, 2007 PTD 2092, 2008 PTD 609, 2008 PTD 578, 2009 PTD (Trib.) 1263, 2009 PTD 762, 2010 PTD (Trib.) 23, 2010 PTD (Trib.) 81, 2010 PTD (Trib.) 1146, 2010 PTD (Trib) 1469, 2010 PTD (Trib.) 1631, 2010 PTD (Trib.) 1636 , 2010 PTD (Trib.) 2117 .

The reliance placed on Article 254 of the Constitution of Islamic Republic of Pakistan also lend no help to the respondent because respondent are not performing their duties under the Constitution instead under the provision of Customs Act, 1969. Any act done contrary to the provision of Act, render the whole exercise nullity to law and ab inito void due to suffer of power/jurisdiction. The judgment relied upon PLD 2006 SC 209 = 2006 PTD 769 is also interpreted mala fidely because the case decided by the Apex Court was not of time barred order. Instead the contention of the respondent was that the hearing notice issued to him subsequent to show-cause notice should be treated as a fresh show-cause notice. Thisopinion was laid down to rest by their lordship of the Supreme Court while holding that "by no stretch of imagination, it can be said to be a fresh notice, it has to be treated as a notice in continuation of the proceeding before the appellant, which had commenced within time, under the show-cause notice dated 10-7-1989. Even otherwise it was merely a notice of the date of hearing of the case". Similarly, reliance placed on reported judgment State v. Pyanda Gul 1993 SCMR 1905, relates to section 171 of the Customs Act, 1969 i.e. serving notice for arrest to some person and not in regards to orders mandatorily to be passed within the time frame given in sections 179 and 193(A) of the Customs Act, 1969.

Beside, reference to the Article 254 of the Constitution of Islamic Republic of Pakistan in like cases is out of place and also not pertinent. The Article 254 of the Constitution is general in nature and does not specify or rebut statutory provisions contained in special / specific Acts. Otherwise there is no requirement for legislature to prescribe different limitation periods for different statutes in presence of the aforesaid Article. Redundancy cannot be attributed to these statutory prescribed time limits. The Honorable Supreme Court of Pakistan in Nagina Silk Mills Lyallpur v. The Income Tax Officer and the Income Tax Appellate Tribunal, Pakistan reported as PLD 1963 SC 322:--

" in so many words referred to legal position that once limitation has started to run and had come to end the assessee has required vested right of escapement of assessment by lapse of time."

The Honourable Supreme Court of Pakistan in reported judgment 1999 SCMR 1881 Khalid Mahmood v. Collector of Customs, Custom House, Lahore and referred in above observed as under:--

"The Court must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enhancement would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails. Reference may be made in this connection to page 206 of Maxwell on the Interpretation of Statute, Eleventh Edition. Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute. The appellant herein had already acquired the vested right of escaping assessment, by lapse of time, when the 1960 Ordinance was enforced. In all probability, the Legislature never intended that the period of limitation prescribed in the Act should become variable with the charges in the "financial year" or "year" inserted in the Act for certain other purposes, namely, to accord with the new accounting years adopted by Government."

7.The Tribunal passed the order dated 1-3-2013 in the instant appeal through which the appeals were rejected, while holding that order passed by respondent No. 2 does not suffer from any illegality. The relevant para. 5 of the order is reproduced for ease:--

"I have heard both the parties and perused the case of record minutely, the evidence on record establishes that the appellants imported goods through the four consignments for onward transportation to Afghanistan and the appellants had submitted undertaking to the effect that they would ensure safe transportation of the same at their final destination. It is an admitted fact that the appellant had neither been appointed by the actual importer i.e. Messrs Lunar Products/ISAF, Afghanistan. Moreover, nor the requisite documents had been directly received by the appellants from the importer, instead the appellants had acted on the advice/directive of one Sohail. Since, the importer is not available in Pakistan and it is the appellant (clearing agents) at the port of entry of the goods who got the goods cleared without payment of duty and taxes leviable thereon. The responsibility of producing the CBC's in terms of clause (X) of para. 31 of CGO 12/2002 dated 15-6-2002 read with the understanding submitted by them, lay on them and if the CBC's showing crossing over of the goods to Afghanistan were not produced it were the appellant being the clearing agents of the port of entry of the goods on whom the major responsibility lay under clause (X) of para. 31 of CGO 12/2002 dated 15-6-2002 read with section 209 and other provisions of the Customs Act, 1969 as well as the undertaking submitted by the appellant. Hence, violated the provision of section 129 of the Customs Act, 1969. The offence established as admitted by the carrier that they have not delivered the goods at final destination."

8.The appellants being aggrieved from the orders filed rectificationapplication vide Nos.1102 to 1105 dated 5-4-2013 on the strength of the following submission:

The applicant craves the permission of the Hon'ble Tribunal for rectification of the actual, factual and legal discrepancies floating on the surface of the passed order dated 14-3-2013, wherein appeal has been rejected summarily without rebutting the grounds of appeal, rejoinder comments dated 11-6-2012 and the judgments relied upon, rendering it contrary to the fact and nullity to the provision of subsection (1) of section 194-B of the Customs Act, 1969. Hence, this application under section 194-B(2) of the Customs Act, 1969 for rectification of the discrepancies in the light of the settled ratio by the superior Judicial Fora in umpteenth binding decision of the Superior Courts settling the ratio in regard to the law point raised in the memo of appeal.

(i)That it was mandated upon the learned appellant Tribunal to give reasoning of rejection of the grounds of appeal and rejoinder comments while passing orders, instead of issuance of a perfunctory, cursory and non speaking order, failure to give decision on the grounds of memo. of appeal, rejoinder comments and on the supplied relied upon judgments stacked in box file on the state of hearing (14-2-2013), despite mandated to do so as per laid down law in reported judgment 2002 CLC 825. Where-in, the Hon'ble Division Bench of the High Court held that:

"Failure to give decision on each issue --- Trial Court while deciding the suit had framed six issues but did not extend reasons separately on all issues and decreed the suit. --- while deciding appeal the Appellate Court had also not decided the suit --- while deciding appeal the Appellate Court had also not deciding the appeal issue-wise. Both the Courts below had disregarded mandatory provision of O. XX, R. 5, C.P.C. and O. XLI, R. 31, C.P.C. respectively. Where in the judgment the Appellate Court had not stated points for determination, decision thereon and the reasons for its findings, the same was not a "judgment" according to law---- Trial Court and Appellate Court having acted in exercise of its jurisdiction with material irregularity". The Division Bench also held that "Good judgment must be self evident and self explanatory---In other words it must contain reasons which should justify conclusion arrived at and the reasons should be such that a disinterested readers can find same convincing or at least reasonable".

(ii)The applicant in support of his stance rely upon reported judgment 2008 PTD 169 Commissioner of Income Tax Peshawar v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. and 6 others and 2010 PTD 106 Commissioner Legal Division Large Tax Payer Unit Karachi v Paracha Textile Mills Ltd., Karachi, wherein their Lordship of Supreme Court held in un-equivocably that wherein error of law or fact is discovered in the order itself, such an error falls within the category of "error apparent on the face of the record".---- Failure of the Court to take into consideration the material facts or statutory provision, which, if so considered, would have material effect on the fate of the case, would also amounts to an "error apparent on the face of the record" and error on the face of record is not restricted to clerical error or arithmetical mistake. Likewise the Appellate Tribunal of Inland Revenue of Pakistan, Karachi in MA(Rect) No. 47/KB/2011, 48/KB/2011, 49/KB/2011 in Sales Tax Appeal Nos. 743, 745/KB and 746 KB/09 of Messrs Maxco (Pvt.) Ltd., Karachi v. CIR, R.T.O. Karachi allowed the rectification application while holding that the Tribunal has found that while passing the order, inadvertently the contention of the appellant/ present applicant have not been considered, instead ignored, hence in the given circumstances the order of the Tribunal dated 21-12-2010 are recalled and the case are directed to be placed at their original number for hearing for passing a fresh order.

That in view of the above elaboration, the Hon'ble Tribunal is requested to recall its earlier order and pass a fresh order after diluting upon the facts of the case and the ground of memo. of appeal, rejoinder comments dated 11-6-2012 and the relied upon judgments supplied at the time of hearing for the sake of justice and fair play and ratio settled by the Superior Judicial Fora as referred in above para and also in the light of reported judgment 2007 PTD 153, wherein the Hon'ble High Court held "Tribunal being final fact finding authority, application for such purpose could submit rectification application before Tribunal" and wherein in reported judgment 2002 PTD 1587, the Hon'ble High Court held that "nothing restrained the Tribunal in the present case from recalling their earlier order--- interest of justice ought to have served to undo a wrong for which the applicant was not at fault--- order passed by the Tribunal was set aside and rectification application filed by the applicant was ordered as being pending before the Tribunal for decision".

9.Thehearingintherectificationapplicationswasfixedon25-4-2013 on which date the consultant argued the applications strictly in accordance with the submission made in para. 8 supra and also invited the attention of the Tribunal that the order of the Tribunal is Xerox copy of the order of the respondent No. 2, which render it suffer from legal infirmity as the same is without rebuttal on the grounds and the rejoinder submission of the appellant, neither the question arose from the order of respondent i.e. (i) Whether submission of good declaration with the customs under section 129 of the Customs Act, 1969 deems to be authorization of the importer? (2) Whether the customs ask for authorization from the clearing agent in terms of section 208 of the Customs Act, 1969 in the presence of authority given in the shape of Custom House Agent License under section 207 ibid at the time of filing good declaration or subsequent to that? (3) Whether any charge can be levelled under section 129 (being machinery) of the Customs Act, 1969 and in the presence of reported judgment PTCL 2002 CL 1 and 2006 SCMR 1519? (4) Whether appellant has been laden with duty to submit CBC under para. 31 of CGO 12/2002 dated 15-6-2002? (5) Whether the appellant submitted any undertaking with the Customs for submission of CBC as stated in the order by respondent No. 2? (6) Whether Order-in-Original was passed within 180 days of the issuance of show cause notice in terms of subsection (3) of section 179 of the Customs Act, 1969? (7) Whether extension given by Board on 2-2-2011 after the expiry of entire period of 180 days on 4-1-2012 was valid in terms of law laid down by the Superior Judicial Fora? (8) Whether respondent No. 2 was competent to seek comments from the respondent at the back of appellant and after conclusion of case? and (9) whether order-in-appeal was passed by respondent No. 2 within 120 days as envisaged in subsection (3) of section 193 of the Act and whether extension of time period by respondent No. 2 on 3-12-2011 after the expiry of initial period of 120 days on 29-9-2011 was valid as per law laid down by the superior Judicial Fora? In support of his stance he also placed on record a box file comprising of relied upon citation on the hearing date 14-2-2013, which was made part of the record of the case. Likewise he submitted a booklet containing reported judgments of the Superior Judicial fora in support of rectification application comprising of Extract from Civil Procedure Code, 2002 CLC 825, Qamarudin v. Province of Sindh 2006 PTD (Trib.) 62, 2008 PTD 1940, Dr. Zafar Hyder v. Income Tax Appellate Tribunal and 2 others, 2007 PTD (Trib.) 2358 [(2004) 136 Taxman 412(ALL.)], General Medical Store v. Comm. of Income Tax, 2005 PTD 2417, Shah Murad Sugar Mill Ltd v Addl. Collector of Sales Tax and 2 others, Rect. Nos. 47 to 49/KB/2011, Maxco (Pvt). Ltd. v. The C.I.R., RTO (1969) 73 ITR 283, Blue Star Engineering Co. (Bombay) (Pvt.) Ltd. v. Comm. of Income Tax 1983 PTD 246, Khalid Adamjee v. Comm. of Income Tax PLD 2007 SC 308 = 2007 PTD 967, Commissioner of Income Tax, Karachi v. Abdul Ghani 2008 PTD 169, Commissioner of Income Tax, Peshawar v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. 2010 PTD 1016, Commissioner (legal Division) LTU v. Paracha Textile Mills Ltd., Karachi, Miscellaneous Case law 2002 PTD 1587, Muhammad Maqbool v Additional Collector of Customs (HQRS) and 2 others, 2007 PTD 153, Collectorate of Customs v. Nauman Chugtai. The pointed out discrepancies on the face of the order is tantamount to the actual, factual and legal discrepancy floating on the surface of the order, which needs to be rectified in the light of the ratio settled in the relied upon judgments.

10.The Tribunal after hearing the arguments observed that the order passed by the Tribunal and by respondent No. 2 are ditto. Additionally the Tribunal inadvertently ignored the contention of the learned counsel of the appellant raised in grounds of memo. of appeal and rejoinder comments .Inviewofthesefacts and circumstances of the case Iamof the view that further opportunity to the appellant in the interest of justice is to be allowed therefore the Tribunal recalled its orders dated 14-3-2013 and directed the office to place the above Customs Appeals Nos. 1404 to 1407 of 2011 before the Tribunal on next date of hearing fixed for 14-5-2013. The representative of the respondent No. 1 was asked to submit the comments if so desired on the rectification application on the next date of hearing fixed for 14-5-2013.

11.The hearing so fixed were adjourned to subsequent dates due to multiple reasons, case was finally heard on 25-7-2013, on which date the respondent No. 1 representative Mr. Irfan Baig supported the judgment passed by the respondent as against the consultant of the appellant who controverted the allegation levelled in the show cause notice and the legality of the orders passed by respondents.

12.Rival parties heard and case records perused and the following issues are framed for consideration:--

(i)Whether submission of good declaration with the customs under section 129 of the Customs Act, 1969 deems to be authorization of the importer?

(ii)Whether the customs ask for authorization from the clearing agent in terms of section 208 of the Customs Act, 1969 in the presence of authority given in the shape of Custom House Agent License under section 207 ibid at the time of filing good declaration or subsequent to that?

(iii)Whether any charge can be levelled under section 129 (being machinery) of the Customs Act, 1969 and in the presence of reported judgment 2001 SCMR 838 and 2006 SCMR 1519?

(iv)Whether appellant has been laden with duty to submit CBC under para. 31 of CGO 12/2002 dated 15-6-2002?

(v)Whether the appellant submitted any undertaking with the Customs for submission of CBC as stated in the order by respondent No. 2?

(vi)Whether Order-in-Original was passed within 180 days of the issuance of show cause notice in terms of subsection (3) of section 179 of the Customs Act, 1969?

(vii)Whether extension given by Board on 2-2-2011 after the expiry of entire period of 180 days on 4-1-2012 was valid in terms of law laid down by the Superior Judicial Fora?

(viii) Whether order-in-appeal was passed by respondent No. 2 within 120 days as envisaged in subsection (3) of section 193 of theAct and Whether extension of time period by respondent No.2 on 3-12-2011 after the expiry of initial period of 120 days on 29-9-2011 was valid as per law laid down by the Superior Judicial Fora?

13.That as regards issue No. (i), it is to be borne in mind that when a clearing agent submits a good declaration before the customs under section 129 of the Customs Act, 1969 for transit of goods to Afghanistan, that deems to be an authorization of the importer and the good declaration so submitted is accepted by the customs as valid and no separate authorization is required under any provision of the Customs Act, 1969 specifically section 129 ibid nor under the Afghan Transit Trade Rules or para. 31 of CGO 12/2002 . The Tribunal confronted the departmental representative that under which authority or the provision of the Act the department considered that the submitted good declaration is not an authorization of the importer and if that was not authorization , how the customs officials processed the good declaration for clearance of the Afghan Transit goods. He has no answer to that instead was flabbergasted, the said attitude amounts to confirmation of the fact that the Goods Declaration is itself an authorization. The issue No. (i) is answered in affirmative.

14.That as regards issue No. (ii), one has to understand the mechanism of filing Good Declarations. Upon conversion from the manual regime to e-filing, the FBR registered the clearing agent under the said regime and issued a unique user ID and password to each clearing agent. Through which the clearing agent log-in the Portal of FBR and transmit the good declaration, which is registered with the PRAL and ATT No. is affixed on the good declaration, copy of which is obtained by the clearing agent and after affixing his company stamp and putting thereon his signature he present that to the Afghan Transit Group, where the nominated Appraiser process the good declaration and referred that to shed for examination in case of need and completion of transit procedure. The filing of Goods Declaration amounts to authorization of the customs to him in terms of section 208 of the Customs Act, 1969. Whereas, the officials who undertook the job of transiting of the goods as per devised procedure were issued smart card by the Karachi Custom Agent Association under section 207 ibid. No separate authorization is required by the clearing agent from the importer of Afghanistan. In the presence of good declaration and the procedure devised for handling the goods under the provisions of sections 129, 207 and 208 and Licensing Rule embodied in Chapter-VIII of Customs Rules, 2001, the customs never ever demand separate authorization from any clearing agent and this is the adhered mechanism honoured by the customs since decades. The issue No.(ii) is answered in negative.

15.That as regards issue No. (iii),itisappropriatetoreproducethe provision of section 129 of the Customs Act, 1969 for ease of reference:--

"Transit of goods across Pakistan to a foreign territory. Where any goods are entered for transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transited without payment of the duties which would otherwise be chargeable on such goods."

From the expression of the above provision, it is vividly clear that the provision is simply a machinery provision incorporated in the Act for devising Rules etc. and not a charging section, resultantly no show cause notice can be issued by any authority under the said provision of the Act and this stood substantiated from section 156(1), ibid as was prior to amendment through Finance Act, 2012, showing penalty of Rs.25,000.00 upon contravention of Rules framed under section 129 of the Customs Act, 1969. Since, there was no rules for Afghan Transit Trade, when the show cause notice was issued, stood validated from the chartered of the show cause notice mentioning no Rules, which were contravened, resultant, clause 64 of section 156(1) ibid contains no consequence in case of contravention of section 129 ibid. rendering the show cause notice as void ab inito as held by superior Judicial Fora in reported judgments 2001 SCMR 838 and 2006 SCMR 1519 and the order so passed is palpably illegal being outside the scope of show cause notice as held by Hon'ble Supreme Court of Pakistan in reported judgment 1987 SCMR 1840, Rehm Din v. Collector of Customs, wherein their Lordships of the Supreme Court held that "Order of Adjudication being ultimately based on a ground which was not mentioned in the show cause notice was palpably illegal on the face of it". In the light of authoritative judgment of the Supreme Court of Pakistan the issue No. (iii) is answered in negative.

16.That as regards issues Nos.(iv) and (v) , one has to look at sub-paras (i) and (ii) , (viii), (ix) and (x) which read as:

(i)The Consulate/Embassy of the respective country or their authorized representative shall apply to the Collector of Customs in whose jurisdiction the trans-shipment goods arrive, for removal of such goods containing non-commercial Government/ Military subsistence/cargo for Afghanistan on the prescribed/ Trans-shipment permit in quadruplicate.

(ii)The Embassy/Consulate or their authorized representative shall furnish an undertaking to the Collector of Customs concerned duly endorsed by the Consulate/Embassy that the goods will not be consumed in Pakistan.

(viii) Transportation will be made by Pakistan Railway, N.L.C., by air or by any other mode of transport specifically authorized by Central Board of Revenue.

(ix)The Custom's Staff at the Port/Airport of exit shall verify the shipping/Airline seal, Custom's bullet seals and endorsed the trans-shipment permit. They shall retain the quadruplicate copy for their own record and hand over the Duplicate Copy to the transporter for re-submission by the representative of the Consulate/Shipping , Airline Agent at the Port of origin.

(x)The Consulate/Embassy or their representative shall submit the duplicate copy at the Port/Air Port of origin within 15 days of crossing border by the goods.

In the instant cases the Consulate General of Islamic Republic of Afghanistan submitted an authority letter/undertaking to the Collector of Customs Appraisement for clearance and transportation of Transit goods. Through the said undertaking they also undertook that the cargo in transit to Afghanistan will not be used/consumed in Pakistan and that the cross border certificate will be furnished within 15 days of its crossing of borders at Torkham/Chamman by the clearing agent concern and through the said undertaking they authorized the appellant for clearance of the goods from Karachi Port for transit to Afghanistan via Torkham/ Chamman. The appellant job is to get the goods cleared from the Karachi Port as per the procedure devised by the FBR in para. 31 of CGO 12/ 2002 dated 15-6-2002 and direction issued in this regard from time to time. The appellant in accordance with the devised procedure obtain clearanceofthe goods and handed over to the NLC in terms ofsub-para. (viii) of para. 31 CGO 12/2002 dated 15-6-2002, which while obtaining container for trans-shipment submitted a no objection certificate to the Assistant Collector of Customs concerned. Upon delivering the container to the NLC or the nominated higher mechanical transport of NLC, the job of the appellant stood concluded. It is for the Consulate or the Border Agent to submit cross border certificate with the Customs as expressed in Sub-Para 10 of para. 31 of CGO 12/2002 dated 15-6-2002. Since, after clearance of the goods from the Karachi port the clearing agent undertaken the job of clearance of goods for transit to Afghanistan has no physical control either on the transporter or the goods, never furnished an undertaking to the effect that he is responsible for crossing border of the consignment. Likewise the appellant has also not submitted any sort of undertaking to the said effect, presuming that he submitted any undertaking in the absence of availability of that is of no substance and this fact has been validated by the representative of the department who categorically stated at the bar that no undertaking was submitted by the appellant on his letter head with his office seal and signature at the time of obtaining clearance of the goods for transit to Afghanistan. The issues Nos. (iv) & (v) are answered in negative.

17.That as regards issue No. (vi), the show cause notice by the respondent No. 2 was issued on 7-7-2010 and order under the proviso of subsection (3) of section 179 of the Customs Act, 1969 should have been passed by the respondent No. 1 within 120 days from the date of issuance of show cause notice or within a further extended period of 60 days due to emergence of "exceptional circumstances" prior to expiry of initial period of 120 days after serving a notice to the person concerned as held by the Hon'ble Supreme Court of Pakistan in 1999 SCMR 1881 and thereafter recording the exceptional circumstances for the extension of further period. In the instant case the order-in-original was passed on 3-4-2011 after the expiry of entire period of 180 days without any extension prior to expiry of initial period of 120 days as evident from the order which is silent in this regard beside nothing was placed on record of the Tribunal for confirmation of the fact by the respondent No. 1 that as to whether any extension was given by the Collector of Customs in lawful legal prescribed manners in the provision of the Act and by the superior Judicial Fora. Rendering the order-in-original barred by time 176 days and as such without power/jurisdiction and not enforceable under law as held by the Superior Judicial Fora in reported and un-reported/reported viz., Order in Sales Tax Appeal No. K-255/01 (New No. K-286/04) and K-309/01, 2006 PTD 340 and PTCL 2005 CL 841, finding/decision in Complaint No. 958-L/2005, 1998 MLD 650, 2004 PTD (Trib.) 2898, 2004 PTD 369, 2005 PTD 23, 2007 PTD 2092, 2008 PTD 609, 2008 PTD 578, 2009 PTD (Trib.) 1263, 2009 PTD 762 , 2010 PTD (Trib.) 23, 2010 PTD (Trib.) 81, 2010 PTD (Trib.) 1146, 2010 PTD (Trib.) 1469, 2010 PTD (Trib.) 1631, 2010 PTD (Trib.) 1636, 2010 PTD (Trib.) 2117. The issue No. (vi) answered in negative.

18.That as regard to issue No. (vii), the submission made in sub para (iii) of para. 4 at page 5 of the order of respondent No. 2 that the order-in-original is not time barred, i.e. also totally mis-conceived and this stood validated from the fact that if it is presumed for the sake of arguments that the authority who issued the show cause notice was empowered to adjudicate the case under the provision of section 179 of the Customs Act, 1969. What stopped him to pass an order within the entire stipulated period of 180 days, which stood expired on 4-1-2011. No extension whatsoever was given by the Board prior to expiry of initial period rendering the order-in-original barred by time. The submission made that the board can extend the period in terms of Subsection (4) of section 179 of the Act also lends no help to the respondent by virtue of the fact that the time of initial period of 180 days stood lapsed on 4-1-2011 without any extension as evident from the record, which is silent in this regard. Nevertheless, if it is presumed for the sake of arguments that extension was accorded, even then the period of 180 days stood expired on 4-1-2011 and that also without any extension. The Board could had extended the period of adjudication prior to expiry of 180 days , which is stood expired on 4-1-2011 and not after that. To the contrary, the board extended the period on 2-2-2011 vide letter C.No. 2(6)Cus.Jud/2011 i.e. after 29 days of the expiry of entire period of 180 days to which it was not empowered under the settled proposition of law. Once the matter stood lapsed no extension can be granted. In words of Superior Judicial Fora time extension given in such cases is akin to giving a new lease of life into dead entity. It is tantamount to flogging a dead horse if an event or document has become dead on account of non timely extension of time period prior to expiry of stipulated period. It is legally considered dead and new spirit cannot be infused into it by any means or on account of any reason whatsoever. Following extract from the judgment of the Hon'ble Sindh High Court reported as 2007 PTD 117 is relevant to the merit of this case:--

We are of the considered opinion that once a matter becomes barred by time then the subsequent enhancement in the period of limitation shall not have the effect of reopening the passed and closed transaction and resuscitating the matters which attained finality and had gone in the annals of history.

The same principle has been laid down by the Hon'ble Lahore High Court in the case of Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and another reported as 2008 PTD 60:--

(iii)"Once limitation had started to run and had come to an end the assessee had acquired a vested right of escapment of assessment by lapse of time."

(iv)The claim of the revenue that the prescribed limitation of 45 days from completion of adjudication proceedings as provided through Finance Ordinance, 2000 and enhanced to 90 days by Finance Act, 2003 is merely directory cannot be accepted . It is settled law that where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen the prescription of time is deemed directory. However, where a public functionary is empowered to create liability against a citizen only within the prescribed time, it is mandatory. The acceptance of contention of the revenue in that regard will make a provision of law redundant and nugatory. Redundancy or superfluity of an act of Parliament and a provision of law cannot be readily accepted. All the more so when the prescribed limit is beneficial for the citizen and restricts the executive power to touch the pocket of a tax payer thereby creating threat after its expiry even if there was good case for creation of liability he will not be dragged in."

In the context of not granting extension within the initial period of time limit, the Hon'ble apex Court in its judgment reported as 1999 SCMR 1881 has observed as under which supports the contention of appellant beyond any iota of doubt.

"Having said as much, we also do not think that the petitioner's caveat is totally devoid of substance. Thus if initial period of two months, envisaged in S.168 (Supra) is allowed to go by without any extension having been made, a vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting any extension--- correspondingly as always, it would remain a moot question whether an extension , if any, was actually made within the initial period of two months from the date of seizure and merely because it purports to have been so made within time, may not be in itself be enough the contrary may be shown but, ordinarily within the Customs Jurisdiction alone."

The said ratio was further fortified by the Superior Judicial Fora injudgmentsun-reported/reported,OrderinSalesTaxAppealsNo.K-255/01 (New No. K-286/04) and K-309/01, 2006 PTD 340 and PTCL 2005 CL 841, finding/decision in Complaint No. 958-L/2005, 1998 MLD 650, 2004 PTD (Trib.) 2898, 2004 PTD 369, 2005 PTD 23, 2007 PTD 2092, 2008 PTD 609, 2008 PTD 578, 2009 PTD (Trib.) 1263, 2009 PTD 762 , 2010 PTD (Trib.) 23, 2010 PTD (Trib.) 81, 2010 PTD (Trib.) 1146, 2010 PTD (Trib.) 1469, 2010 PTD (Trib.) 1631, 2010 PTD (Trib.) 1636 , 2010 PTD (Trib.) 2117 .

The reliance placed on Article 254 of the Constitution of Islamic Republic of Pakistan by the Deputy Collector of Customs Afghan Transit Group on behalf of respondent No. 1 also lends no help to the respondents because respondents are not performing their duties under the Constitution instead under the provision of Customs Act, 1969. Any act done contrary to the provisions of Act renders the whole exercise nullity to law and ab inito void due to suffer of power/jurisdiction. The judg-ment relied upon PLD 2006 SC 209 = 2006 PTD 769 is also interpreted malafidely because the case decided by the Apex Court was not of time barred order. Instead the contention of the petitioner was that the hearing notice issued to him subsequently to show-cause notice should be treated as a fresh show-cause notice. This opinion was laid down to rest by their lordships of the Supreme Court while holding that "by no stretch of imagination, it can be said to be a fresh notice, it has to be treatedas a notice in continuation of the proceeding before the appellant, which had commenced within time, under the show cause notice . Even otherwise it was merely a notice of the date of hearing of the case". Whereas, in reported judgment 2012 PTD 1016 M/s. Pakistan Ordinance Factory (POF), Wah Cantt , Collector of Customs ,Sales Tax (Adjudication) their lordships of High Court held that the plain reading of the Article 254 negates the contention of the learned counsel for the respondent, as above commands does not relate to issue brought before this court. The Sales Tax Act, 1990 on the basis of which show-cause notice was issued, itself demands that in pursuance of section 36(3) of the Act ibid . Likewise the provision of section 179 of the Customs Act, 1969 lays condition on the Adjudicating authority to pass order within the period expressed therein failure to comply with the provisions of the Act render the order of no legal effect. The order of the Islamabad High Court was challenged before the Hon'ble Supreme Court of Pakistan through C.P. 925 of 2012, which was dismissed vide order dated 12-3-2013 while holding that "since the order has been passed after expiry of the prescribed time in the statute, the order passed is time barred and as such without power/jurisdiction as held by Islamabad High Court." The issue No. (vii) answered in negative.

19.That as regards to issue No. (viii), the appeal before the respondent No. 2 was filed on 1-6-2011 and an order under the proviso of subsection (3) of section 193-A of the Customs Act, 1969 should have been passed by the respondent No. 2 within 120 days from the date of filing of appeal i.e. on or before 29-9-2011 or within a further extended period of 60 days prior to the expiry of initial period of 120 days with reason to be recorded for extension in writing. No extension was granted by respondent No. 2 prior to expiry of initial period of 120 days instead extension was granted on 3-11-2011 as evident from para. 5 of the order-in-appeal reading as "that the proceeding in this case could not be finalized within the stipulated time limit due to certain un-avoidable circumstances and administrative reasons, despite of the fact there were no un-avoidable circumstances or administrative reason" and neither any exception because appellant attended all the hearing and sought no adjournment and the respondent No. 2 was functioning in the capacity of Collector (Appeal) from the date of filing appeal to the date of order in appeal. Resultant the extension granted on 3-11-2011 is without any lawful authority as it has been extended after lapse of initial period of 120 days, rendering the order-in-appeal is barred by 35 days hence void and ab inito as held by the judicial forums in its reported judgments 2007 PTD 117, 2008 PTD 60, 2007 PTD 2092, 2010 PTD (Trib.) 1636, 2010 PTD (Trib.) 2117, 2009 SCMR 1126, 2002 MLD 180, 2003 PTD 1354, 2003 PTD 1797, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 107, 2010 PTD 465, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.)1146 and 2012 PTD (Trib.) 1650. The issue No. (viii) is answered in negative.

20.In view of the foregoing the orders of the respondent No.1 and respondent No.2 are based upon proceedings which are infested with patent illegalities, which are held to be null and void. This being so, the impugned orders of the respondents are set aside. The subject appeal is accordingly allowed as no order to cost. Order passed accordingly.

JJK/148/Tax(Trib.)Appeal accepted.