AUTOMOTIVE PRODUCTS (PVT.) LTD. VS MUHAMMAD IJAZ, 2013 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1835 (2013)

2013 P T D (Trib

2013 P T D (Trib.) 1835

[Customs Appellate Tribunal, Lahore]

Before Ch. Niamat Ullah Chairman/Member Judicial and Ch. Muhammad Asghar Paswal Members Judicial

Messrs AUTOMOTIVE PRODUCTS (PVT.) LTD. and others

Versus

MUHAMMAD IJAZand others

Custom Appeals Nos.237/LB and 238/LB of 2012 and C.As. Nos. 30/LB, 31/LB of 2013, decided on 28/07/2013.

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

----S. 179(3)(4)---Order of Collector extending time for decision of case by Adjudicating Officer after expiry of period of limitation prescribed therefor---Validity---Proceedings before Adjudicating Officer had already abated due to expiry of limitation---Collector could pass such order within limitation period prescribed under S. 179(3) of Customs Act, 1969---Such extension of time would be immaterial in circumstances.

Abdul Zaheer and others v. Director-General, Pakistan Coast Guards and 4 others PLD 1990 Kar. 412; Haji Noor-ul-Haq v. Collector of Customs and others 1998 MLD 650; Messrs Super Asia Muhammad Din and Sons (Pvt.) Ltd. v. The Collector Sales Tax Gujranwala and another 2008 PTD 60; Messrs Pace International Rawalpindi v. Secretary Revenue Division Islamabad 2006 PTD 340; CBR/Sales Tax Department v. Messrs Pace International Rawalpindi PTCL 2005 CL 841; Messrs Tanvir Weaving Mills v. Dy. Collector Sales Tax and 4 others 2009 PTD 762; Messrs Miraj Din v. Collector of Customs (Appeals), Excise and Sales Tax, Lahore and 2 others 2009 PTD 2004 and Irshad Ahmed and another v. Deputy Superintendent Customs (AIB) Lahore and 6 others 2012 PTD (Trib.) 47 ref.

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

----S. 179(3)(4)---Decision of case by Adjudicating Officer---Extension of time by Collector without giving any reason therefor---Validity---Such order of Collector for being short of statutory requirements could not be termed as a valid order---Illustration.

Abdul Zaheer and another v. Director-General Pakistan Coast Guards and 4 others PLD 1990 Kar. 412; Haji Noor-ul-Haq v. Collector of Customs and others 1998 MLD 650 and Irshad Ahmed and another v. Faiz Ahmed Chaudhry, Deputy Superintendent Customs (AIB Lahore) and 6 others 2012 PTD (Trib.) 47 rel.

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

----Ss. 32, 32-A, 162, 163 & 168(1)---Criminal Procedure Code (V of 1898), S. 58---S.R.O. 486(I)/2007, dated 9-6-2007---Mis-declaration of transactional value of imported goods by under-invoicing same---Search warrants obtained from Court at Karachi, raid conducted and record seized at Karachi by Superintendent, Intelligence and Investigation-FBR of Lahore Directorate---Validity---According to S.R.O. 486(I)/2007, dated 9-6-2007, officers of Directorate could exercise powers and discharge duties of officers of Customs within areas of their respective jurisdiction---Neither any case was registered nor any investigation was pending at Lahore against appellant at time of such raid, search and seizure of his record at Karachi by Superintendentof Lahore Directorate---Staff of Lahore Directorate in such circumstances were not competent to conduct such raid at Karachi for being outside their territorial jurisdiction---Delegation of powers to Superintendent of Lahore Directorate under S. 168 of Customs Act, 1969 would not be helpful as powers under charging Ss. 32 & 32-A thereof were not vested with him under S.R.O. 486(I)/2007---Such record seized in illegal manner by Superintendent of Lahore Directorate could not be used against appellant for any purpose.

MessrsAhsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad v. Federation of Pakistan 2003PTD 2037; Food Consults (Pvt.) Ltd. Lahore and another v. Collector (Central Excise and Sales Tax) Lahore and 2 others 2004 PTD 1731; Federation of Pakistan through Secretary Ministry of Finance Islamabad v. MessrsMaster Enterprises (Pvt.) Ltd. 2003 PTD 1034; MessrsZakria Enterprises v. Muhammad Musharaf and 7 others 2005 PTD 1200; Chairman Centred Board of Revenue v. MessrsHaq Cotton Mills (Pvt.) Ltd. Burewala 2007 SCMR 1039; Collector of Sales Tax and others v. MessrsFood Consults (Pvt.) Ltd. and another 2007 PTD 2356; 2004 PTD 2994 and 2005 PTD 23 ref.

MessrsAhsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad v. Federation of Pakistan 2003PTD 2037; Food Consults (Pvt.) Ltd. Lahore and another v. Collector (Central Excise and Sales Tax) Lahore and 2 others 2004 PTD 1731; Federation of Pakistan through Secretary Ministry of Finance Islamabad v. MessrsMaster Enterprises (Pvt.) Ltd. 2003 PTD 1034; MessrsZakria Enterprises v. Muhammad Musharaf and 7 others 2005 PTD 1200; Chairman Central Board of Revenue v. MessrsHaq Cotton Mills (Pvt.) Ltd. Burewala 2007 SCMR 1039 and Collector of Sales Tax and others v. MessrsFood Consults (Pvt.) Ltd. and another 2007 PTD 2356 rel.

Mian Abdul Ghaffar Malik Muhammad Arshad, Raza Ahmed and Abdul Salam Sajid for Appellants.

S.M. Abbas Jafferi, I.O. for Respondent.

Date of hearing: 28th May, 2013.

JUDGMENT

CH. MUHAMMAD ASGHAR PASWAL (MEMBER JUDICIAL).---This judgment shall dispose of Customs Appeals Nos.237/LB of 2012 and 238/LB of 2012 filed by the Appellants Nos.1 to 5 (Appellants) against Order-in-Appeals Nos. 359 to 360 of 2012 dated19-11-2012 and Appeals Nos.30/LB of 2013 and 31/LB of 2013 filed by the Director of Intelligence and Investigation-FBR, Lahore (Department) against the same impugned order but only relating to remission of penalties imposed upon Mr. Roohi Chaudhri, one of the respondents in the original proceedings.

2.Briefly stated the case of the department is that an information was received that MessrsAutomotive Products (Pvt.) Limited, Worldwide House, C-17, Korangi Road, DHA, Phase-II, Karachi one of the largest importers of auto spare parts have indulged in gross mis-declaration of value of imported auto spare parts deliberately to evade duties/taxes leviable thereon and in this way have caused colossal loss to the Exchequer. The said importer had imported a large number of consignments containing huge quantity of auto spare parts in the past on grossly under invoiced value in league with clearing agents as well as in connivance with concerned Customs staff. It was further alleged that the modus operandi adopted by the said importer in committing fiscal fraud was that LCs were opened on under invoiced value and commercial invoices presented to the Customs authorities only covered the partial amount remitted through LCs opened with the authorized banks and transactions were known within the company as 1st LC. The balance amounts required to be paid to the foreign suppliers were arranged through money changers/forex agents and were known as 2nd LC. The duties and taxes were paid against the value of 1st LC only. It was further alleged that according to informer, private record of all such transactions was lying at the Head Office of the said importer situated at Worldwide House, C-17, Korangi Road, DHA, Phase-II, Karachi. On receipt of aforesaid information, a party headed by Mr. Muhammad Ijaz, Superintendent was constituted by the Director and Additional Director of Intelligence and Investigation-FBR, Lahore Mr. Muhammad Ijaz, Superintendent filed an application on 18-3-2009 in the Court of learned Judicial Magistrate, South Karachi under section 162 of the Customs Act, 1969 and sought search warrant of the premises of the importer situated at Worldwide House, C-17, Korangi Road, DHA, Phase-II, Karachi and on the basis thereof the said premises was raided and searched which led to the recovery of relevant record which was taken into possession in term of section 168(1) of the Customs Act, 1969. It was further alleged that at the time of search, Adrees Khokhar, Muhammad Zahid and Muhammad Irfan, appellants were present and their statements were recorded in which they admitted that the said importer was engaged in under invoicing of auto parts since long. After making the inventory and recovery memo, the seized record was shifted to the office of Directorate of Intelligence and Investigation-FBR, Lahore where scrutiny thereof revealed that the said importer clandestinely paid more than USD 10.00 millions against the imported goods during the period December, 1997 to February, 2009 but the same was not declared before the Customs authorities in term of section 25(1) of the Customs Act, 1969. It was further alleged that the scrutiny of 22 Goods Declarations filed at Dry Port Mughalpura Lahore as well as CFS Dry Port, Lahore revealed that in respect of said 22 consignments, an amount of USD 526698 were paid to foreign suppliers through money changers but the same was not declared to the Customs authorities for the purpose of assessment which caused evasion of duties and taxes to the tune of Rs.2,30,89,137 which demonstrated that the aforesaid importer through its directors/managers and assignees knowingly, willfully and deliberately created a scheme for evasion of duty and taxes and thereafter mis-declared the value of the goods and were involved in under invoicing of the imported goods in connivance with concerned Customs staff and clearing agents and thus caused the aforesaid loss to the Government Revenue by contravening the provisions of sections 18, 25(1), 32(1), (2), 32-A, 79, 80, 178 and 192 punishable under clauses (9) (14) (14-A) (43) (77) and (86) of the Customs Act, 1969. The facts of Customs Appeal No.238/LB of 2012 filed by the appellants are also same except that it pertained to 48 GDs and the amount of duty and taxes evaded was Rs.5,13,84,251. A criminal case was also registered against the importer and its directors/managers and assignees under the aforesaid provisions of Customs Act, 1969 vide F.I.R. No.8 of 2009 dated 7-4-2009.

3.On the basis of aforesaid allegations, the appellants and respondent No.1 in appeals filed by the department were served with show cause notices dated 25-7-2009 and 22-8-2009 by the Additional Collector of Customs (Adjudication), MCC, Customs House, Lahore which were replied but by not satisfying with the reply filed by the appellants the culminated in consolidated Order-in-Original No.38 of 2012 dated 5-5-2012, where-under the Additional Collector (Adjudication), MCC, Lahore burdened the importer with the liability as mentioned in the show cause notices on account of evasion of duly and taxes in respect of 22 and 48 consignments of auto spare parts and also imposed penalty of one million rupees on the importer and penalty of Rs.2,00,000 on each of the appellants as well as Mrs. Rohi Chaudhri, respondent No.1 in appeals filed by the department under section 156(1)(14) of the Customs Act, 1969. Aggrieved by the original order the appellants as well as Mr. Roohi Chaudhri filed appeal before the Collector of Customs (Appeals), Customs House, Lahore who up-held the original order except remission of penalty imposed upon Mrs. Roohi Chaudhri, widow director of importing company in both the cases vide impugned order dated 19-11-2012. Being aggrieved and dis-satisfied with the impugned order in appeal passed by the learned Collector of Customs (Appeals), Lahore as well as the original order passed by the Additional Collector Customs (Adjudication), Lahore, the appellants filed appeals while the department also filed appeals against the remission of penalty imposed on widow director Mrs. Roohi Chaudhri by the Collector of Customs (Appeals), Lahore. The appellants filed instant appeals against the impugned order passed by the Collector of Customs (Appeals), Lahore on the following grounds:--

(a)That the plea taken by the appellants in Para-7(a) to (e) that the original order passed by respondent No.4 was not containing his finings in respect of any issue was found VALID by respondent No.5 but instead of referring the case back to the adjudicatingauthority for deciding it afresh after addressing all the factual and legal issues raised by the appellants in reply to the show cause notice has passed the impugned order on the ground that he (respondent No.5) was empowered to inquire the issues and that he has conducted inquiry, scrutinized the record and heard both sides in term of section 193-A (3) which reads as under:--

(3)The Collector (Appeals) may, after making such further inquiry as may be necessary pass an order, within one hundred and twenty days from the date of filing of appeal or within such extended period as the Collector (Appeals) may for reasons to be recorded in writing, extend, confirm, modify or annul the decision or order appealed against:

(b)That respondent No.5 never conductedany inquiry in this case nor he provided an opportunity of cross-examining the prosecution witnesses to the appellants nor he associated the appellants in any such inquiry. Moreover, according to section 193-A(3), no doubt the Collector of Customs (Appeals) may, after making such further inquiry as may be necessary pass an order but in this case no further inquiry, whatsoever, was made and just to ignore the valid objection raised by the appellants referred to the powers entrusted to him under the aforesaid provision of law.

(c)That perusal of the entire order of respondent No.5 as contained in Para-7 to 12 of the impugned order revealed that neither the record was called nor any witness was summoned and examined nor the appellants were provided an opportunity to cross-examine such witnesses nor any inquiry was made. Thus, the observation of respondent No.5 is misconceived and frivolous which alone makes the impugned order void, illegal, arbitrary and mechanical in nature.

(d)That had respondent No.5 been satisfied with the objections of the appellants that the adjudicating authority has not addressed any of the factual and legal issue, the case would have been remanded back to respondent No.4 with the direction to re-adjudicate and pass speaking reasoned order after hearing all the concerned parties but no such action was taken by respondent No.5 who passed the impugned order wrongly by mentioning that he had discharged the duty of the original adjudicating authority by making inquiry at his level which is otherwise factual incorrect.

(e)That as per Section 179 of the Customs Act, 1969, respondent No. 4 was required to complete adjudication proceedings and pass an order within 120 days of the issuance of show cause notice or within such period extended by the Collector of Customs for which reasons shall be recorded in writing but such extended period shall in no case exceed 60 days provided that the period during which the proceedings were adjourned on account of any stay order or ADRC proceedings or the time taking through adjournments not exceeding 30 days shall be excluded from commutation of aforesaid period. Subsection (3) of section 179 of the Customs Act, 1969 reads as under:-

"179. Power of adjudication:--

(1)xxxxxxxx x xxxxxxxxxxxxxxxxxxxxxxx

(2)xxxxxxxxxxxxxxxxxx xxxxxxxxxxx xx

(3)The case shall be decided within one hundred and twenty days of the issuance of show cause notice or within such period extended by the Collector for which reasons shall be recorded in writing but such extended period shall in no case exceed sixty days:

Provided that any period during which the proceedings are adjourned on account of stay order or alternative dispute resolution proceedings or the time taken through adjournment by the appellant not exceeding thirty days, shall be excluded for the computation of aforesaid periods."

(f)That in this case, show cause notice was issued on 25-7-2009. The appellant filed Constitutional Petition in the Hon'ble Lahore High Court, Lahore on 28-9-2009 and respondent No.4 was restrained from passing final order on 30-9-2009 i.e. after 65 days of issuance of show cause notice. The stay granted by the Hon'ble Lahore High Court, Lahore was vacated on 25-8-2011 and thereafter the impugned order was passed by respondent No.4 on 5-5-2012 i.e.after lapse of 253 days of the vacation of stay order. Thus, by including 65 days consumed before grant of stay order, respondent No.4 took 316 days in passing the impugned order whereas only 150 (120 initial days plus 30 days of adjournments) or as the case may be 210 days (120 initial days plus 30 days of adjournments and 60 days of extension granted by the Collector) were available with respondent No.4. Hence, the original order being barred by limitation by 107 days was nullity in the eyes of law.

(g)That although an extension of 60 days was granted by the Collector of Customs under section 179(3) of the Customs Act, 1969 vide order dated 27-1-2012 (Annex. "M") but the said order cannot be termed as an order granting extension under the aforesaid provision of law because no reasons in writing of theexceptional circumstances were recoded by the Collector himself. The word "extension allowed as requested" cannot be taken recording of reasons of exceptional circumstances and as such the so-called extension granted by the Collector of Customs in term of section 179(3) of the Customs Act, 1969 was void and illegal and respondent No.2 was required to pass the original order within 150 days (120 initial days plus 30 days of adjournments) resultantly the original order is barred by 167 days.

(h)That as regards the extension sought from FBR vide letter dated 30-3-2012 (Annex. "N"), it is pointed out that FBR has to regulate the system of adjudication including transfer of cases and extension of time-limit in exceptional circumstances in term of subsection (4) of section 179 of the Customs Act, 1969. There is lot of difference in between "regulating system" and "granting extension". Subsection (4) of section 179 reads as under:--

"(4)The Board shall have the powers to regulate the system of adjudication including transfer of cases and extension of time-limit in exceptional circumstance."

(i)That if for the sake of arguments, not conceding it is accepted that "regulating the system" also includes grant of extension then FBR shall also be competent to conduct original adjudication of any case whereas the entire system provided under the Customs Act, 1969 does not authorize FBR to conduct original adjudication of any matter but to regulate system for the same. Hence, FBR has no authority under subsection (4) of section 179 to grant extension for passing adjudication orders.

(j)That the aforesaid issue regarding grant of extension by FBR stood clarified on bare reading of first Proviso to subsection (3) of section 193-A of the Customs Act, 1969 according to which the Board has been empowered to extend the period for decision of any appeal. Said Proviso reads as under:--

"Provided that such extended period shall not exceed sixty days unless the Board further extends at any time during the pendency of appeal."

(k)That had the intention of the legislature been to empower FBR to grant extension in time under subsection (4) of section 179 of the Customs Act, 1969, it would have been mentioned that the Board may "extend" the time for adjudication instead of using words "to regulate the system". This proves that FBR can regulate system but cannot grant extension in time under sub-section (4) of section 179 for completion of adjudication proceedings. Hence, the order dated 30-3-2012 passed by FBR is nullity in the eyes of law. Moreover, the letter dated 30-3-2012 issued by the Board is totally silent about the exceptional circumstances involved in this case which compelled the Board to grant extension.

(l)That by making the appellant No.1 to pay huge amount and imposing penalty upon appellants, respondent No.4 had created a liability against them and in such a situation the limitation prescribed under section 179(3) of the Customs Act, 1969 would be mandatory in nature and any order passed after expiry of such limitation would be void and illegal. Reliance is placed on "Messrs Super Asia Muhammad Din and Sons (Pvt.) Ltd. v. The Collector Sales Tax Gujranwala and another" 2008 PTD 60, "Messrs Pace International Rawalpindi v. Secretary Revenue Division Islamabad" 2006 PTD 340, "CBR/Sales Tax Department v. Messrs Pace International Rawalpindi" (PTCL 2005 CL 841), "Messrs Tanvir Weaving Mills v. Dy. Collector Sales Tax and 4 others" 2009 PTD 762, "Messrs Miraj Din v. Collector of Customs (Appeals), Excise and Sales Tax, Lahore and 2 others" 2009 PTD 2004, "Irshad Ahmed and another v. Deputy Superintendent Customs (AIB) Lahore and 6 others" (2012 PTD (Trib.) 47) and "Messrs Yasir Enterprises, Multan v. Deputy/Additional Collector, Multan" (2012 PTD 1788).

(m)That respondent No.5 while passing the impugned order though incorporatedthelegalissueoflimitationasmentionedinPara-7(f) to (m) raised by the appellants in his order but did not utter a single word to address the said crucial issue involved in this case.

(n)That the findings of respondent No.5 are contained in Paras 6 to 12 in the impugned order, perusal of which revealed that not a single word has been uttered by him to address the legal issues incorporated by him in his order at Para-4(f) to (o). This has intentionally been ignored because respondent No.5 was fully aware that the original order was badly barred by limitation. So much so respondent No.5 has also mentioned the case-law relied upon by the appellants in this behalf but again he has not mentioned a single word as to whether the case-law was applicable or as the case may be distinguishable. This makes the impugned order void, illegal, un-just, arbitrary and not sustainable at law.

(o)That as per section 162 of the Customs Act, 1969, any Judicial Magistrate may, on application by a gazetted officer of Customs containing the ground of belief may issue search warrant. If section 162 is read in juxta-position with Section 163 of the Customs Act, 1969, it would be crystal clear that the gazetted officer shall not be below the rank of an Assistant Collector or any other officer of like a rank but in this case the application was filed and the search warrant was obtained by Mr. Muhammad Ijaz, Superintendent who was admittedly below the rank of Assistant Collector and thus not competent to take any action under sections 162/163 of the Customs Act, 1969.

(p)That the respondent No.1 stated that he had received a credible information that the record of valuable nature has been secreted in the premises applied for search but the requirements of section 162 is that he should state "that I entertain reasonable belief that the contraband documents are concealed in the premises applied for search" so that the Judicial Magistrate having jurisdiction in the area, be guided by the reasonable belief of the Customs Authorities for issuance of the search warrant. Mere information, how much correct it may be, but it does not replace "the reasonable belief of the Customs Officer". The Judicial Magistrate before issuing the search warrant may examine whether the Customs Officer has really "entertained the reasonable belief or there is any mala-fide action." Thus, in the absence of reasonable belief of the Customs Officer, the search warrant would be violative to section 162 of the Customs Act, 1969 and the search so conducted and documents or things so seized would be without lawful authority, hence illegal and void ab-initio. Section 162 is reproduced below for ready reference:-

"Section 162. Power to issue search-warrant.---(1) Any [Judicial Magistrate] may, on application by a gazetted officer of Customs, stating, the grounds of his belief, that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for goods documents or things.

(2)Such warrant shall be executed in the same way any will have the same effect, as a search warrant issued under the Code of Criminal Procedure, 1898."

(q)That in similar situation where the warrant was obtained without entertaining reasonable belief, such action was not approved by superior Courts and it was repeatedly held as under:--

"Application for search.---There is a clear distinction between learning and belief. A person may learn or get information which he may not believe to be correct. Therefore, where a Customs Collector merely states that he has learnt but does not state that he entertains the belief that dutiable or prohibited goods are secreted as mentioned in his application, the application does not comply with the provision of Section 162 in terms. AIR 1958 Bom. 367 + ILR 1957 Bom. 774 + 1958 Cri. L.Jour. 1157 (DB). But where Magistrate states in the body of the warrant that he Customs Collector has expressed a belief that prohibited or dutiable goods are secreted at some place though in fact he has not done so, then if the warrants, on the face of them, are valid it is wrong for the same Magistrate to hold that the warrants were illegal much less void ab initio, simply because he holds later on that the warrants were issued on account of an error of judgment. It is just an irregularity whichdoesnoteffectthepoweroftheofficerwhoexecutes the warrants. (AIR 1958 Bom. 367 + ILR 1957 + 1958 Cri. L. Jour. 1157 (DB)."

(r)That the search warrants were obtained from the duty Magistrate whereas section 162 of the Customs Act, 1969 provides that search warrant of any place within the local limits of the jurisdiction of the Judicial Magistrate be issued by him. Thus, the issuance of search warrant by a duty Magistrate was contrary to the provisions of section 162 ibid. This is a mandatory condition. Its violation is not curable which renders the search warrant, search of premises and seizure of documents and thing illegal and void ab-initio. Reliance in this behalf is placed on "Ghazenfar Ali Khan v. Collector of Customs of Lahore and other 2002 MLD 700 in the above case, it was held as under:--

"Resultantly it is argued that the search warrant dated 12-7-1994 issued by respondent No.5, (Illaqa Magistrate) was without any jurisdiction and the search conducted in pursuance thereof was also illegal and of no legal effect. I have considered the arguments and examined various provisions of law contained in the Customs Act, 1969 and tend to agree with the ratio of judgment of a Division Bench of Peshawar High Court in case of Collector of Customs v. Muhammad Akram (PLD 1999 Peshawar 33) and hold that the search warrant dated 12-7-1994 issued by respondent No.5 was without any lawful authority and accordingly all proceedings and action taken thereupon and results flowed therefrom are of no legal effect. The respondents are directed to restore the consignment seized by them through the process of search. In view of this finding the writ petition is hereby allowed."

(s)That in similar situation where requisitioning of record under section 26 of the Customs Act, 1969 without mentioning the specific purpose was declared violative of the natural justice by Hon'ble Supreme Court of Pakistan in case "Assistant Director Intelligence, Investigation Karachi v. B.R. Herman and others" (PLD 1992 SC 485), it was held by their Lordships in the above case as under:-

"The object of section 26 of the Customs Act is to empower the authority to ask for information or require the production of documents or inspect the same in order to determine the legality or illegality of importation or exportation of goods which have been imported or exported, the value of such goods, the nature, amount and source of the funds or the assets with which goods were acquired and the customs duty chargeable therein or for deciding anything incidental thereto. The authority can only for specific purposes of determining the legality or illegality call for such information as required by section 26. The authorized officer can call upon any importer or exporter to furnish information in case where such determination is required. It cannot make a roving inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality. The authority has to state and disclose in the notice, the purpose for which the party is required to produce those documents or supply information. Unless such purpose is specified in the notice, it will be a matter of anybody's guess and the accused party will be put to inquiry without any specific allegation or fact disclosed to him. It does not permit any authority to employ the provisions of section 26 to make indiscriminate, roving and fishing inquiry irrespective of the fact whether any determination of legality or illegality in import, export or funds with which the goods were acquired is to be determined. Even in cases of suspicion of commission of illegality, details should be provided to the party to enable him to have an opportunity to produce all the relevant documents of a case, any notice without disclosing any fact or particulars for which information or documents are required will be in violation of the principles of natural justice and may be struck down as illegal and without jurisdiction.

(u)That besides above, on an application made by a gazetted officer of customs under section162 of the Customs Act, 1969, judicial Magistrate in whose local limits the premises to be searched falls may examine whether the search for goods, documents or things was based on the "Reason to believe" or there is any mala fide action. Having been satisfied with requirements of section 162 of the Customs Act, 1969 and section 98, Cr.P.C. he may issue the search warrant for recovery of the goods or documents and things. On search, the goods/documents and things so recovered shall be seized by the appropriate officer under proper Mushirnama and the same shall be produced along with seized property before the Judicial Magistrate who issued the search warrant and the said Magistrate may retain the seized documents in his custody or return or partly return the same to the person from whose premises the same were seized or may deliver to the appropriate customs authority who sought search warrant but in this case respondent No.1 had failed to comply with these mandatory requirements of the search warrant by not producing the seized documents before the judicial Magistrate. Non-compliance of the mandatory provisions of section 162 of the Customs Act, 1969 read with sections 97 and 98 Cr.P.C. has rendered the search of the premises and seizure of the documents absolutely illegal and void ab initio which can not be cured. Hence, these documents cannot be used as an EVIDENCE against the appellants in any case and the same were liable to be restored to appellant No.1 as held in case of "Muhammad Serajuddin v. C.R. MISRA" (1983 (13) ELT-1370 (SC), it was held in above case that:--

14. In view of what we have said above, it is clear that the Magistrate's order that the 959 documents, which were seized, should remain in his custody and be scrutinized in his Court, was also correct. No doubt, the documents seized are many, and a still more voluminous record will have to be gone into, to fine out the relevance of the documents seized. But that is a matter of detail bearing upon the scrutiny and inspection of the seized documents and not upon their custody. If difficulties arise (and they must have), they are capable of being removed by a judicious action on the part of the Magistrate and collaboration on the part of the Customs authorities. This is a matter of expediency rather than of law. In or opinion though the learned Magistrate was legally right in retaining control over the documents seized, he was unduly narrow in his view in affording facilities for inspection and scrutiny. Perhaps, his action was somewhat justified, if one looks only at the inordinate delay and the leisureliness with which the inspection was being made. But Magistrates, even though they may desire expedition, must not frustrate other departments of Government in discharging their legitimate duties under the Act."

(v)That the Crucial issue involved in this case is territorial jurisdiction of Mr. Muhammad Ejaz who submitted application to the Duty Magistrate Karachi for obtaining search warrant under section 162 of the Customs Act, 1969. It is an admitted fact that Mr. Muhammad Ejaz Superintendent was posted at Lahore in the Directorate of Intelligence and Investigation FBR, Lahore which has jurisdiction only within the Province of Punjab. As regards the territorial jurisdiction of Mr. Muhammad Ejaz, he being posted at Lahore had only jurisdiction in Lahore Division because in Bahawalpur, Multan, Faisalabad, Gujranwala and Rawalpindi Divisions the said Mr. Muhammad Ejaz had no jurisdiction as other Superintendents are posted in these Divisions. Thus, it would be crystal clear that Mr. Muhammad Ejaz Superintendent had only territorial jurisdiction in Lahore Division.

(w)That as per S.R.O. 486(I)/2007 dated 9-6-2007 (Annex. "O"), Federal Board of Revenue was pleased to authorize the officers of the Directorate General Intelligence and Investigation-FBR to exercise the powers and discharge the duties of the officers of customs under certain provisions of the Customs Act, 1969 "within the area of their respective jurisdiction" which obviously means that all the officer and staff of the said Directorate General shall exercise powers within their own respective jurisdiction and not beyond it. Since Mr. Muhammad Ejaz, Superintendent was posted at Lahore and his respective jurisdiction was Lahore Division and as such the entire action on his part of travelling from Lahore to Karachi, submission of application to the learned Duty Magistrate at Karachi, obtaining search warrant, conducting raid at the premises of appellant No.1, at Karachi carrying out search of the premises mentioned in the warrant and the premises not allowed to be searched, seizure of record and other articles and subsequent proceedings based on such raid, search and seizure are patently void and illegal without jurisdiction and of no legal effect.

(x)That the Investigating Officer in hot pursuit of offenders or as the case may be in-connection with any investigation for the purpose of arresting any person whom he is authorized to arrest can go any where beyond his jurisdiction in Pakistan in term of section 58 of the Code of Criminal Procedure, 1898 but the condition precedent is that such like officer had to arrest without warrant any person whom he is competent to arrest which obviously means that a case had already been registered against such person and while investigating such case the Investigating Officer in hot pursuit of offenders can go beyond his jurisdiction anywherein Pakistan.Itishumblypointedoutthatinthiscase the warrant was obtained by Mr. Muhammad Ejaz, Superintendent Intelligence and Investigation-FBR Lahore from the Duty Magistrate Karachi on 18-3-2009 and on the basis thereof the raid was conducted and search was carried out on same day i.e. 18-3-2009 whereas criminal case was registered against the appellants on 7-4-2009 i.e. after 19 days meaning thereby that at the time when the application for obtaining search warrant was submitted, the warrant was obtained, raid was conducted, the search was carried out, the record and other articles were impounded, there was neither any case registered against the appellants nor Mr. Muhammad Ejaz, Superintendent Lahore was investigating any such case nor any person was required to be arrested from area beyond his territorial jurisdiction in such case and, thus, entire action on his part was void, illegal and without jurisdiction.

(y)That it is by now a settled principle of law that any document, article or thing recovered or seized in illegal manner would not be used for any purpose against the person from whom it was recovered or seized. Since the so called record and other articles were recovered and seized by Mr. Muhammad Ejaz, Superintendent, Intelligence and Investigating-FBR Lahore from the business premises of appellant No. 1 situated at Karachi where he had no territorial jurisdiction in illegal manner and as such the same can neither be used against the answering appellants nor any liability can be adjudged on the basis thereof. Reliance in this behalf is placed on "MessrsAhsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad v. Federation of Pakistan" (2003PTD 2037) "Food Consults (Pvt.) Ltd. Lahore and another v. Collector (Central Excise and Sales Tax) Lahore and 2 others" (2004 PTD 1731), "Federation of Pakistan through Secretary Ministry of Finance Islamabad v. MessrsMaster Enterprises (Pvt.) Ltd." (2003 PTD 1034), "MessrsZakria Enterprises v. Muhammad Musharaf and 7 others" (2005 PTD 1200), "ChairmanCentral Board of Revenue v. MessrsHaq Cotton Mills (Pvt.) Ltd. Burewala" (2007 SCMR 1039) and "Collector of Sales Tax and others v. MessrsFood Consults (Pvt.) Ltd. and another" (2007 PTD 2356).

(z)That respondent No.5 also miserably failed to discuss, address and dispose of the grounds taken by the appellants at Para-7(p) to (y) of the memo. of appeal. He just by mentioning that the appellants have approached various forums but could not seek any relief and as such these issues need not to be addressed, which action on his part is patently void and illegal. It is submittedthat these issues were never taken or discussedbythe appellant at any forum and respondents Nos.4 and 5 were required to address the same. It is further added that respondent No.5 even ignored the series of judgments cited by the appellants before him. Although he has mentioned said case-law in his order but did not utter a single word in this behalf.

(aa)That besides above, the entire case falsely made against the appellants revolves around the mis-declaration in term of sections 32 and 32-A of the Customs Act, 1969. It is pointed out that no powers, whatsoever for initiating proceedings under sections 32 and 32A of the Customs Act, 1969 were entrusted to Mr. Muhammad Ejaz, Superintendent as well as other officers and staff of the Directorate General Intelligence and Investigation-FBR. Sections 32 and 32A are the charging provisions and unless and until powers under such charging sections are delegated to any officer he cannot make out case of mis-declaration against any person as is evident from the perusal of S.R.O. 486(I)/2007 dated 9-6-2007 under which no powers under these provisions of law were delegated to the officer and staff of the Directorate General Intelligence and Investigation-FBR. The issue regarding exercise of powers tinder sections 32 and 32A of the Customs Acts, 1969 by the Directorate General of Intelligence and Investigation-FBR came under deliberation by the superior courts and the learned Division Bench of High Court of Sindh at Karachi in case "Mazhar Iqbal v. Collector of Customs (Preventive) Karachi and 2 others" (2004 PTD 2994) and "Shahzad Ahmed Corporation v. Federation of Pakistan through Secretary Ministry of Finance Islamabad and 2 others" (2005 PTD 23)." It was held by their lordships that no action, whatsoever, can be taken by the officers and staff of the Directorate General Intelligence and Investigation-FBR under the said provision of law and at the best they can pass on an information, if received by them to the concerned Collectorate of Customs. Similar view were taken by Customs Appellate Tribunal in Khawaja Waseem case (C.A. No.603/LB of 2009). Thus, taking cognizance of sections 32 and 32-A of the Customs Act, 1969 by Mr. Muhammad Ejaz, Superintendent and other staff of the Directorate General of Intelligence and Investigation-FBR as well as issuance of show cause notice and initiating further proceedings on the basis of such action by respondent No.4 are illegal, void and without jurisdiction.

(bb)That in addition to above, the Directorate General Intelligence and Investigation-FBR has otherwise no jurisdiction to interfere with the post clearance audit because admittedly the goods imported by respondent No. 1 were examined, assessed and out of charged on payment of duty and taxes by the customs authorities. It is a settled law that once the consignment is examined, assessed and out of charged on payment of duty and other taxes, the customs authorities would become functus officio in such like past and closed transaction as held in case "MessrsHaji Ismail and Company v. Customs Appellate Tribunal and others" (SBLR 2008 Sindh 1699) and it is only the Directorate General of Post Clearance Audit to carry out audit and initiate contravention reports in term of S.R.O. 500(I)/2009 and S.R.O. 501(I)/2009 both dated 13-6-2009 read with CGO 03/2009 dated 13-6-2009.

(cc)That the issue as to whether the post clearance audit can be conducted by any officer other then the Valuation Department (now PCA) came before Hon'able High Court of Sindh at Karachi and it was held by the learned Division that non-else can exercise such powers of post clearance audit except the officers of the Valuation Department (now the Directorate General of Post Clearance Audit) in case "Pak Suzuki Motor Co. Ltd. v. Collector of Customs Karachi" (2006 PTD 2237). It was held by their lordships in above case as under:-

"We are of the opinion that pars 44 of CGO 12 of 2002, is very clear and fully supports the contention of Mr. Aziz A. Shaikh. We are peruaded to agree with the submission and consequently hold that the Assistant Collector. Importer processing. Port Muhammad Bin Qasim who issued the show cause notice under section 32 and passed the order in original had no jurisdiction. It was clearly a post importation case and therefore the officers of the Valuation Department could initiate action for recovery of the government dues under section 32 of the Customs Act. The Tribunal has fallen in error in holding that the order-in-original was with jurisdiction. The question No. 2 is answered accordingly.

(dd)That as regards under invoicing, it is staled that there was a valuation ruling issued by the Directorate General of Customs Valuation Karachi in term of section 25-A of the Customs Act, 1969 for appraisement and clearance of the automotive replacement parts during the relevant period. Section 25-A of the Customs Act, 1969 reads as under:--

"25A. Powers to determine the customs value.---(1) Notwithstanding the provisions contained in section 25, the Collector of Customs on his own motion, or the Director of Customs Valuation on his own motion or on a reference made to him by any person including an officer of customs may determine the customs value of any goods or category of goods imported into or exported out of Pakistan, after following the methods laid down in section 25, whichever is applicable.

(2)The customs value determined under subsection (1) shall be the applicable customs value for assessment of the relevant imported or exported goods.

(3)In case of any conflict in the customs value determined

under subsection (1), the Director-General of Customs Valuation shall determine the applicable customs value.

(ee)That the entire import of automotive parts/replacement parts was being made throughout in the country by making appraisement on the basis of valuation ruling aforementioned which was binding upon all the customs functionaries, importers and their custom house agents. In none of the case (GDs mentioned in the show cause notice referred above) the declared value was accepted. In all cases, the transaction value was not accepted and the assessment was mode on the basis of valuation ruling issued by the Directorate General of Customs Valuation Karachi in term of section 25-A of the Customs Act, 1969. If the allegation of under invoicing as mentioned in the show cause notice is accepted, for the sake of arguments, without conceding, it would be a case of discrimination with the appellant No.1 because the value mentioned in the show cause notice is much higher then the prices fixed under section 25-A andapplied to the import of the automotive parts made by all importers throughout in the country. Would it be a fair treatment with the appellant No.1 by applying higher value to the goods imported by them and making appraisement of other importers at lower value on the basis of valuation ruling issued under section 25-A, the answer would be in negative. The appellants are entitled for equal treatment as given to the other imports of automotive parts in the county because equal protection of law enshrined in Article-4 of the Constitution and militates against the principles of equality before law and entitlement for equal protection in law firmly ingrained in Article 25 of the Constitution is the vested right of the appellants. Reliance in this behalf is placed on "MessrsPak Ocean and others v. Government of Pakistan and others" 2002 PTD 2850.

(ff)That respondent No.5 has mentioned in the impugned order regarding objection of the appellants of giving them discriminatory treatment but unfortunately respondent No.5 just to avoid the said issue observed that since the evidence was available against the appellants and as such action was initiated against them but lost sight that the present case was made on the basis of post clearance check and if the value was determined in this case was actual than such Cases could have been made against all the importers engaged in importation of identical goods of same make, brand, origin, commercial level and during the same period but the impugned order is totally silent in this behalf which clearly shows that discriminatory treatment has been given to the appellants in utter disregard of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

(gg)That apart from the aforementioned reasons, the documents statedly recovered from the premises of the appellant No.1 though in illegal manner were never presented either by the appellants or their customs house agents or any body else to any appropriate officer of customs and as such the said documents cannot be made basis for making case of mis-declaration in term of sections 32 and 32-A of the Customs Act, 1969. As per section 32 if any person in-connection with any matter of customs (i) makes or sings or causes to be made or signed or delivers or causes to be delivered to an officer of customs any declaration, notice certificate or other document, whatsoever, (ii) or makes any statement in answer to any question put to him by an officer of customs which he required by or under Customs Act this act to answer knowing or having reasons to believe that such documents or statement is false in any material particular, he shall be guilty of offence under said section or (iii) submits any false statements or documents electronically through automated clearance system regarding any matter of customs.

It is pointed out that the appellants never made or signed or delivered any document, notice or certificate or other documents, whatsoever, to the officer of customs knowingly that the same were fake and as such clause (a) of subsection (1) of section 32 would not be applied in case of appellants. Similarly neither any statement was made by any of the appellant nor he replied to any question put to him by any officer of customs knowing or having reasons to believe that such documents or statement were false in any material particular and, thus, clause (b) of section 32(1) would also not be applicable. As regards submission of false statement or document through automated clearance system, it is humbly pointed out that clause (c) of section 32(1) is irrelevant in case of the appellants. It is further pointed out that subsection (1) of section 32 cannot be read in isolation and required to be read in harmony with its subsection (2). Since the case of the appellants is not covered under subsection (1), thus, the show cause notice issued under subsection (2) of section 32 would also be rendered nullity in the eyes of law.

As earlier stated the show cause notice is totally silent as to which false document or statement was presented to an appropriate officer of customs by the appellants and to which officer. Admittedly there is no such allegation in the show cause notice referred above. Besides this there is no evidence, whatsoever, of higher import value made by any importer throughout in the country to establish that the appellant No.1 committed under invoicing. Since the same prices were applied to all the importers throughout in the country by all customs station, thus, singling out the appellant No.1 would neither be legal nor justified nor fair. Rather it would be a worst example of discrimination with the appellant No.1 which is not permissible under the Constitutional of Islamic Republic of Pakistan.

(hh)That the allegation of remittance through money changers is false and frivolous. It has no concern or links with the import made by appellant No.1. There is no evidence, whatsoever, to establish that the alleged remittance made through money changers was in respect of the import subject matter of GDs mentioned in the show cause notice nor the figures in the so called private record being attributed to the appellant No.1 tallies with the import figures. It is just presumption on the part of the detecting staff to link these remittance with the import subject matter of this case. Appellant No.1 has also other business and as such the alleged transactions, if any, made by them in-connection with their legal other business cannot be attributed to the import made through GDs mentioned in the show cause notice. In fact the reporting agency has no evidence, whatsoever, to prove under invoicing more particularly in the presence of the valuation ruling issued by the competent authority and its application to all importers of automotive replacement parts throughout in the country. The reason behind making false and frivolous case against the appellant No.1 is that Iqbal Hussain, respondent No. 10 in the show cause notice was employee of appellant No. 1. He had been committing forgery, embezzlement and fraud with the company and in order to save his own skin on his interception, he had been preparing duplicate false and fabricated record by forging the signatures and initial of the Directors. It is submitted that it was said Iqbal Hussain who was filing all documents, declarations and other statements before the officers of customs and looking after the entire job of import, right from negotiation with the shipper till import and clearance of the goods, Iqbal Hussain was the only person dealing with the entire business of import. He left the services of appellant No.1 a day before the date on which the raid was conducted on the premises of appellant No.1. The modus operandi on his part was that he in the first instance, took copies of the entire record fabricated by him and travelled from Karachi to Lahore and delivered the same to Mr. Muhammad Ejaz, Superintendent being on his friendly terms, who on the basis thereof went to Karachi and conducted raid and took other steps aforementioned against the appellant No.1. Had the record been not fabricated by said Iqbal Hussain and delivered to Mr. Muhammad Ejaz, Superintendent, it would have been very difficult for Iqbal Hussain to leave the services of the appellant No.1 and start his own business with 3 x shops of automotive replacement parts in Karachi. The said shops and the investment was obviously the result of fraud, forgery and embezzlement committed by said Iqbal Hussain. The entire exercise was undertaken by the said Iqbal Hussain in connivance with Mr. Muhammad Ejaz, Superintendent and some other employees of Directorate General Intelligence and Investigation-FBR, Lahore to save his own skin and involve appellants in litigation of civil and criminal nature.

(ii)That besides above, there were and/are more than three dozen importers of the auto spare/replacement parts engaged in importation thereof from same source and all such import was being assessed and cleared on the basis of valuation determined by the Valuation department in term of section 25A of the Customs Act, 1969 because where the prices are fixed under the aforesaid provision of law, the same shall be taken the customs value of the imported goods under subsection (2) of section 25A ibid. None of the importer except appellant No.1 was made liable to pay taxes on the value applied by respondent Nos.1 to 3 in case of appellant No.1.

(jj)That the declared value of appellant No.1 in all cases was higher than the value declared by the other importers of the same goods having same brand, time period, origin and commercial level. During adjudication proceedings, appellant No.1 presented chart showing comparison of the value and taxes paid by appellant No.1 as well as other importers but respondent No.4 did not utter a single word in this behalf. Rather he even did not include the said issue while passing the impugned order.

(kk)That on filing GDs, the consignments were examined and thereafter assessed under section 80 and on payment of duties and taxes, the same were out of charged under section 83 of the Customs Act, 1969. It was a final assessment made by an appropriate officer in term of section 80 of the Customs Act, 1969. Had there been any reservation on the part of respondents Nos.1 to 3 in respect of such consignments they should have taken up a case with the Collector of Customs, MCC, Lahore for re-opening the assessment in term of section 195 of the Customs Act, 1969. Making assessment at higher side and preparation of contravention reports for initiating action under section 32 without re-opening the earlier assessment by the Collector in term of section 195 on the part of respondents Nos.1 to 3 was void, illegal, without jurisdiction and of no legal effect.

(ll)That in all the cases relating to 22 GDs subject matter of the impugned order, re-assessment was made by respondents Nos.1 to 3 and on the basis of said re-assessment, the show cause notice was issued and ultimately the impugned order was passed. It is humbly pointed out that respondents Nos.1 to 3 had no jurisdiction, whatsoever, of making assessment or as the case may be re-assessment and as such the entire action of re-assessment of 22 consignments, preparation of contravention reports and sending the same to respondent No.4 by respondents Nos.1 to 3 and issuance of show cause notice and passing of original and appellate order by respondents Nos.4 and 5 are void and illegal because it is settled principle of law that if the initial action is illegal, the super structure build upon such illegal action would also be illegal.

(mm) That respondents Nos.1 to 3 derived powers and functions under the Customs Act, 1969 by virtue of S.R.O. 486(I)/2007 dated 9-6-2007 which does not empower them to carry out orre-assessment of duties and other taxes under sections 79 and 80 of the Customs Act, 1969 which is the sole function and role of theAppraisementCollectorate. Thus,theentireactiononthe part of respondents Nos.1 to 3 of making re-assessment of the consignments earlier assessed by an appropriate officer under section 80 of the Customs Act, 1969 is patently void and illegal.

(nn)That the mala fide and ulterior motive on the part of respondents Nos.1 to 3 are apparent on the face of record because it was their case that appellant No.1 has been under invoicing the import of auto spare/replacement parts in collusion with the Customs staff but surprisingly enough neither any notice was issued to any customs officer nor any of them was associated in investigation/inquiry both at adjudication and criminal side. This alone goes to the root of the case.

(oo)That the appellants have been met with great injustice. Their entire business has been ruined by respondents Nos.1 to 3 due to mala fide and ulterior motive on their part on the instance of a person who has been committing fraud with the company which is now closed since 2009. The appellant No.1 has been singled out and by giving discriminatory treatment, it has been burdened with huge liability which is not payable by it. None else engaged in the same business during the same period has even been questioned in this behalf.

4.The department filed para-wise comments on the appeal filed by the appellants which are reproduced below:--

(a)Denied. The learned Collector of Customs (Appeals) Lahore has passed a self speaking order, discussing all facts of the case and law points/jurisdictional issues involved therein, hence the orders of the learned Collector of Customs (Appeals) Lahore are lawful to the extent of appellants Nos.1 to 5.

(b)Denied. As is evident from para 7-11 of Order-in-Appeal No. 360 of 2012 dated 19-11-2012, the Collector (Appeals) Lahore, after further inquiry in terms of section 193-A (3) has disposed of the issues in a lawful manner. Only two issues were pointed out by the appellant for further inquiry, the issue No.1 regarding jurisdiction, search warrant, recovery of documents and genuineness of documents. The said issues were duly considered and disposed of by at higher fora i.e. as such these did not need further consideration. The Collector (Appeals) vide para 10 of the Order-in-Appeals Nos.359-360 of 2012 after detailed inquiry scrutiny of the case recorded his observation that any action if required/admissible against other importer of similar goods does not fall under his jurisdiction which may if needed be invoked before MCC by the appellant.

(c)Denied. As is evident from para 6 of the Order-in-Appeal that the adjudicating authority scrutinized the case record duly presented the prosecution. The appellant did not raise any such objection for cross-examining of witness. Hence the orders passed in the case are legal and valid in the eye of law which has been duly passed after providing proper opportunity.

(d)Denied. As is evident from para 7 of the impugned order, the Collector (Appeals) after considering the merits of the case has lawfully decided the issues after proper inquiry in terms of section 194-A(3) of the Customs Act, 1969, which read as under:--

"The Collector (Appeals) may after making such further inquiry as may be necessary pass an order, within one hundred and twenty days from the date of filing of appeal or within such extended period as the Collector (Appeals) may for reasons to be recorded in writing, extended, confirm, modify or annul the decision or order appealed against."

(e)Denied. The Honourable High Court vide Interim Order dated 29-9-2009 in Writ Petition No. 1854 of 2009 restrained the department fora for passing of final order or punitive action against the appellants. The Honourable High Court vide Order dated 4-3-2010 modified the said order dated 29-9-2009 and further restrained the department for passing of adverse order in adjudication against the petitioners (Now Appellants). The Honourable High Court in order 25-8-2011 in Writ Petition No.1854 of 2009 recalled the Interim Orders referred to above and directed to continue the adjudication proceedings. The appellants sought various adjournments. The extension of 60 days was also granted by the Collector of Customs on 27-1-2012 in File No. 76/ADC/ADJ/HQ/2009 followed by further 90 days extension allowed by the FBR vide letter C. No.2(6)Cus/Jud/2012 dated 30-3-2012 in terms of section 179(4) of the Customs Act, 1969. The period of limitation as per provisions of the Act was going to expire on 28-6-2012, but the appellant failed to assist the authorities for early disposal of the case. The adjudication order was thus passed on 5-5-2012 which is valid and legal. The stance taken by the appellant is misleading. The reason of exceptional circumstances is much clear that the case remained pending before the honourable High Court. Extensions were allowed by the competent authorities as per dictum of law.

(f)Denied. As detailed at para (e) above.

(g)Denied. The extension of time limit under section 179(3) by the Collector of Customs and by the FBR under section 179(4) is lawful.

(h)Denied. As detailed at Para (e) above, the matter remained pending before the Honourable High Court since 29-9-2009 and the Interim Orders/Stay was vacated by the Honourable High Court on 25-8-2011. The case in question was of exceptional nature which was required detailed inquiry/investigation regarding various aspects of the case allegations. In such circumstances Board was requested to accord extension of time limit in terms under section 179(4) of the Act. The stance taken by the appellant merits no consideration.

(i)Denied. The Board in exceptional circumstances as stated above granted extension of time under section 179(4) of the Act and has not passed any instructions/directions to the adjudicating authority to interfere the adjudicating proceedings.

(j)Denied. The provision of section 193-A (3) regarding extension of period for decision of an appeal by the Board has is independent of its powers regarding extension of time under section 179(4) of the Customs Act, 1969. Both the Sections have different implications and the language of law is much clear in both the Sections of the Act.

(k)Denied. Under section 179(4) the Board has been empowered to regulate the system of adjudication with respect to i.e. (i) Transfer of cases (2) Extension of time limit in exceptional circumstances, and the Board under the provision of the Act has lawfully allowed the extension of time limit to finalize adjudication of the case. The stance taken by the appellant is totally mis-concurred and misleading.

(l)Denied. That the limitation period for deciding the adjudication case within the stipulated period of 120 days of the issuance of show cause notice or within such extended period as provided under section 179 is mandatory and the adjudication order has lawfully been passed within the extended periods.

2008 PTD 60 relates to the different situation, which deals with the re-activation limitation period of issuance of show cause notice (after expiry) for completion of adjudication proceedings, whereasundersection179thepoweroftheCollectorandtheBoardregardingextensionoftimeareinbuiltinthesection, which have not been granted after the issuance of show cause notice. Hence case-law is not relevant in a specific situation.

2006 PTD 340 This case-law is also not relevant in the subject case. Here the assessment of a person in default was to be made within 45 days of the issuance of show cause notice or within an extended time but neither the extension was obtained nor the adjudication order was passed within the stipulated period. Hence the order in original was cancelled. Whereas in the subject case order in original has lawfully been passed within the stipulated and extended period of limitation as envisaged under Section 179 of the Act.

CASE LAW PTCL 2005 CL 841The circumstances of the saidcase are also at par with the case-law reported as 2006 PTD 340 above. Both the cases have no relevance with the present case and this case has lawfully been decided within the stipulated extended period in terms of section 179 of the Act. Whereas the above reported cases were not decided within the stipulated period. The case-law 2009 PTD 762 and PTCL 2010 CL 4 do not exist in thePTCL 2010 (sic) publications.

(m)Denied. As detailed in the afore-mentioned paras. The respondent No.5 passed a well speaking order, covering all the facts/controversial issues involved therein, after affording proper opportunity of hearings, hence the repetitions of facts contraventional issues in the order could create misconceptions. Therefore, the Collector of Customs (Appeals) Lahore by applying his judicial mind has passed a reasonable and fair order which is valid/legal in the eye of law.

(n)Denied. As claborated in the aforementionedpara, the respondent No.5 by discussing all the factual/legal issues and after affording proper opportunity of hearings has passed a speaking order. The order is reasonable and fair in the eye of law.

(o)Denied. That as per section 162 of the Customs Act, 1969:--

162. "Any (Judicial Magistrate) may, on application by a gazetted officer of customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceedings under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.

It is worth mentioning that the word "Gazetted Officer" has been used under section 162 of the Act and Mr. Muhammad Ijaz, Superintendent is a notified Gazetted Officer, the Gazette notification and all relevant documents were provided to the Judicial Magistrate South Karachi and proper application, stating the grounds for seizure of such documents for Search Warrant under section 162 of the Customs Act, 1969 which was allowed vide order No.Cjrj. M-VII(S)82/2009 Karachi dated 18-3-2009. Hence the entire action of the Directorate was in accordance with law. The appellant is intermingling the provisions of section 163 and section 162 of the Customs Act, 1969. As section 163 of the Act has not been invoked in this case, the stancetakenbytheappellantisthereforemisleadingandillegal.

(p)Denied. On the basis of a credible information and by statingthegroundsofbeliefthatthedocumentsorthinks,whichcouldbeusefulinevidenceintheproceedingwerelyinginthe premises of the company's Head Office, filed an application before the Judicial Magistrate under section 162 of the Act, was filed and the Hon'ble Judicial Magistrate after going through case file, data, and inquiry proceedings and keeping in view the authenticity of the information allowed the Search Warrant.

(q)Denied. That the Search Warrant, by the Judicial Magistrate South Karachi under section 162 of the Customs Act, 1969 was obtained for recovery of material which was helpful in investigation. The issue has already been settled by the Judicial Magistrate I order dated 9-9-2009 and by the Additional Session Judge South, Karachi vide order dated 1-2-2010 in Criminal Revision No. 85 of 2009, the Search Warrant was thus lawfully issued by the Judicial Magistrate the stance taken by the appellant is misleading having no backing of law.

(r)Denied. The documents under section 26 of the Customs Act, 1969 were requisitioned by mentioning specific purposeregardingInvestigationofthecaseincontinuationofcauseofcrime. Asheldin the Judicial Magistrate vide orderdated9-9-2009 and duly up held by the Additional Session Judge, Karachi vide order dated 1-2-2010 in Criminal Revision No. 85 of 2009. The Search Warrant was thus lawfully issued by the Judicial Magistrate the stance taken by the appellant is misleading, having no backing of law.

(s)Denied. The documents under section 26 of the Customs Act, 1969 were requisitioned by mentioning specific purpose regarding investigation of the case in continuation of cause of crime. AsheldintheJudicialMagistratevideorderdated9-9-2009 and duly up held by the Additional Session Judge, Karachi South, the Magistrate acted in accordance with law, as the head office of the appellants was within his jurisdiction. The learned Judicial Magistrate in performance of his duty has passed the impugned order regarding Search of premises in compliance with section 162 of the Customs Act, 1969. The case-law 2002 PTD 700 is in different scenario.

(t)Denied. As admitted by the appellant, the application before the Judicial Magistrate under section 162 of the Customs Act, 1969 was made by the Gazetted Officer of Customs stating the grounds of his reasonable belief for issuance of Search Warrant of the premises i.e. Head Office of MessrsAPL, Karachi and after obtaining Search Warrants, the premises were searched and recovery of documents was effected against a proper Mushirnama, copy of which was also handed over to the Management of MessrsAPL, Karachi. The Directorate of Intelligence and Investigation-FBR Lahore fulfilled its lawful duty/responsibility.

(u)Denied. Since the offence was committed at Lahore as such Mr. Muhammad Ijaz Superintendent who was a competent officer under the law recovered the documents which were useful in investigation in due compliance to the provision of section 162 of the Customs Act, 1969. F.I.R. No.8 of 2009 under sections 2(s)-18 and 25(1), 32(1) (2), 32A, 79, 80, 178 and 192 of the Customs Act, 1969 was therefore registered.

As held by the Additional Session Judge, Karachi South vide Order dated 1-2-2010 in C.R. No. 86 of 2009, the Search Warrant was lawfully issued by the Judicial Magistrate, South Karachi, having its jurisdiction in continuation of cases of crime or action occurred in Lahore. The dominant cause of action arose at Lahore. Hence the Judicial Magistrate committed no illegality at the time of passing of Search Warrant orders dated 18-3-2009. The same arguments were taken by the appellant in C.P. No.D-542 of 2009 and the Honourable High Court vide order dated 15-6-2009 held as under:-

"In our view since the dominant cause of action has arisen in Lahore that would be the appropriate forum for the activities of the respondents to be challenged by the petitioner. This is more so since if the Courts in Karachi were to take jurisdiction it would only confuse and complicate an ongoing investigation which has its origin in Lahore.

Furthermore, based on the aforesaid case of SANDALBAR ENTERPRISES (PVT.) LTD., it can be seen from the prayer in this case that the dominant purpose for filling the writ petition was to quash all the proceedings which flowed from the investigation which was initially started in Lahore i.e. application under Section 162 of the Act, 1969, made by Lahore Customs Officials, the warrant, which was issued at the behest of the Lahore Customs and executed by some of their officers, the F.I.R., which was registered in Lahore by Lahore Customs Officials concerning imports into and cleared from the Lahore Dry Port and the seizure in Karachi by a raiding party lead by Customs Officials from Lahore pursuant to the execution of the Warrant in connection with there investigation in Lahore. These actions were taken as a whole indicate that the dominant purpose of this writ petition was to quash proceedings and action emanating from inquiries initiated in Lahore and thus according to SANDALBAR case (supra) the appropriate forum to challenge the acts on the respondents would be used in Lahore rather than Karachi."

Hence the stance taken by the appellant merits no consideration and is not sustainable in the eye of law.

(v)Denied. That the case has been registered at Lahore, the Directorate of Intelligence and Investigation-FBR Lahore in terms of S.R.O. 586(I)/2007 dated 9-8-2007 has discharged the duty in accordance with law. As the Head Office of MessrsAutomotive Products (Pvt.) Ltd., was situated at Karachi, hence in continuation of the investigation at Lahore, and on the basis of an authentic information, Search Warrant under section 162 of the Customs Act, 1969 were requested and obtained from the Judicial Magistrate, Karachi (South) which lead to recovery of requisite documents useful to the Investigation of the case at Lahore. As the issue has already been settled by the Additional Session Judge South, Karachi vide order dated 15-6-2009, the repetitions of same arguments is not sustainable in the eye of law.

(w)Denied. It is submitted that the case was under Investigation with the Directorate of Intelligence and Investigation-FBR Lahore. The Gazetted Officer of the Directorate intelligence and Investigation-FBR Lahore in continuation of cause of crime made the request under section 162 of the Customs Act, 1969 to the Judicial Magistrate, Karachi South having territorial jurisdiction of the premises/Head Office of MessrsAutomotive Products (Pvt.) Ltd., for issuance of Search Warrant in order to recover the material/documents which were useful in the Investigation at Lahore. Hence the Superintendent Directorate Intelligence and Investigation-FBR, Lahore acted in accordance with law, the action of the Superintendent and the Judicial Magistrate has been adjudged to be lawful by the Additional Session Judge, Karachi South vide order dated 1-2-2010 as well as the Honourable High Court of Sindh at Karachi vide order dated 15-6-2009 in C.P. No. D-542 of 2009. Stance taken by the appellant is unjustified, unlawful and not maintainable in the eye of law.

(x)Denied. The material/documents recovered from the Head Office of MessrsAPL, Karachi in the light of Judicial Magistrate Karachi South Order dated 18-3-2009 in compliance with section 162 of the Customs Act, 1969 are lawful and the action of the Superintendent, Directorate of Intelligence and Investigation-FBR, Lahore for filing of application for search warrant is lawful as held in the Additional Session Judge, Karachi South and Honourable High Court of Sindh at Karachi order dated 15-6-2009.

(y)Denied. Para 7 (P) to (Y) has already been made part of impugned order and the respondent No.5 after thorough scrutiny of the case record, disposed of the case properly.

(z)Denied. That the Directorate Intelligence and Investigation-FBR Lahore correctly detected the Mega fraud of Tax evasion and made out a contravention case. The Directorate sought approval of the Board for invoking provision of section 32-A of the Customs Act, 1969 and the FBR vide Letter C. No.10(2)L&P/05 dated 3-6-2009 was pleased to accord Ex-Post Facto approval for invoking provision of section 32-A of the Customs Act, 1969. The contravention reports were forwarded to the authorized officer of Customs vested with the powers under section 179 of the Customs Act, 1969. The appellant is misconstruing the legal position by referring the case-laws in the court, the Supreme Court of Pakistan has already expunged the remarks in respect of Directorate General Intelligence and Investigation. The honourable Court in C.Ps. Nos.2069 and 2550 of 2004 dated 25-4-2006 has held "that there was no necessity to make adverse remarks against the Customs Intelligence Department as such the same are expunged with the observation that it may not be used in future against the department in any manner."

(aa) Denied. It is not the case of post clearance audit of the GDs but on a specific information, investigation was conducted which led to the recovery of material/documents which further led that MessrsAutomotive Products (Pvt.) Ltd., are involved in a mega fraud and the invoices presented before the customs were fake/forged. The actual transactional value of the imported goods was on much higher side as compared to the declared value.

(bb) Denied. That the Tax evasion case has been detected on thebasis of actual transactional value, transmitted to the foreign suppliers by M/s. APL against the import of various Auto parts cleared against fake invoices and the FBR accorded Ex-post factoapprovaltotheDirectoratemadeoutcontraventioncases lawfully and forwarded to the competent adjudicating authority for issuance of show cause notices. The objection raised by the appellants are misleading hence are not sustainable.

(cc) Denied. Though the Valuation Ruling under section 25-A was in filed yet the Valuation Ruling issued under section 25-A clearly states that where declared value is on higher side than valuation advice may be ignored and declared value be accepted under section 80 for the payment of duty/taxes. In the subject case, the Importer MessrsAutomotive Products (Pvt.) Ltd., with the connivance of the Clearing Agent submitted fake invoices before the Customs Authorities and mis-declared the value to evade duty/taxes. As per law, the higher transactional value was applicable and to be accepted for payment of duty/taxes. The huge remittances of the appellant and recovery of documents revealed that they paid the actual amount of transactional value to the foreign supplier by stating it as 2nd L/C.The appellants as per law bound to submit documents of original transactional value before the customs authorities. The stance taken by the appellants merits no consideration the case has been made out on legal grounds.

(dd) Denied. That Valuation Ruling issued under section 25-A is applicable if the transactional value is less and doubtful. The Import mis-declared the true transactional value and submitted fake invoices before the Customs Authorities with the connivance of his Clearing Agent to defraud the National Exchequer. During the course of Investigation original import documents were procured and remittance of differential amount between the declared/transactional value was discovered, the contravention case was lawfully made out against the appellants. Thereportcaselaw2002PTD2850hasnotrelevancewiththe case, which deals with the charge in dutystructure introduced through S.R.O. 584(I)/91 and S.R.O. 585(I)/91. As the act of the Directorate is reasonable fair/lawful, same is valid in the eye of law.

(ee)Denied. In the light of information, search warrant of the premises of the appellant was obtained from the Judicial Magistrate South, Karachi in terms of section 162 of the Customs Act 1969. When the search operation was made on the said premises, genuine Performa Invoices, Commercial Invoices of higher value were recovered, on the basis of which the L/Cs. Were opened by the appellant in the schedule banks. Foreign exchange remittance record relating to the performa invoices was found which were duly signed by the Managing Director/ Chairpersons, Director and Management of Messrs Automotive Products (Pvt.) Ltd., Karachi. On the basis of these documents a contravention case was made out against the appellant and the respondent No.5 lawfully passed a well speaking order.

(ff)Denied. Seized documents were recovered from the Head Office of MessrsAutomotive Products (Pvt.) Ltd., Karachi in the presence of Appellant's staff. The appellant firm was engaged in remittance of foreign exchange for under-invoicing of Auto Parts since long. Show cause notice was issued on the basis of material evidence on record. The appellant filed GDS through their customs clearing agents and submitted under invoiced commercial invoices for assessment purpose before the Customs authorities and concealed the actual payments made abroad. On specific information the staff of Directorate by proceedings under section 162 of Customs Act, 1969 recovered the genuine documents and proof of actual payments sent abroad. The detecting agency made out contravention cases and submitted before the competent court for adjudication and recovery of evaded amount of duty and taxes. The customs staff assessed the imported consignments of the appellants on the basis of under invoiced documents presented by the appellants through their Customs clearing agents. Subsequently, on the basis of recovery of true transactional value, it was clear that the earlier appraised value was on lower side. During the course of adjudication proceedings it was proved beyond any shadow of doubt that the appellants mis-declared the import value.

(gg) Denied. That Search Warrant was lawfully delivered to Mr. Muhammad Idrees Khokhar Senior Manager Finance of APL Karachi. The copy of statement prepared was given to them and their statements was also recorded, wherein they admitted the mis-declaration of value and remittance of foreign exchange for under invoicing of Auto Parts to the foreign supplier. Iqbal Hussain Ex-Parts Manager of MessrsAPL Karachi is also accused of the case and was arrested by the department for investigation. As regards loyalty of Iqbal Hussain with the company, it is their internal matter.

(hh) Denied. As reported under para. (dd) the value declared under section 25-A was applicable if transactional value was not available, and where the declared value was on higher side, the same was to be accepted under section 80 of the Customs Act, 1969. In the subject case the Importer mis-declared the transactional value and got the goods assessed/out of charge on the basis of value determined under section 25-A. Knowingly, hence the contravention cases have correctly been made out on the basis of true transactional value of goods. Offence clearly fall under section 32 of the Customs Act, 1969 as reported vide 2004 PTD 2977 and 2009 PTD 1463.

(ii) Denied. As stated above, the Importer made untrue statement in connection with the material particulars and did not disclose true transactional value. He submitted fake/false import document i.e., invoice knowingly to defraud the National Exchequer, which was detected when evidence of true transactional value and foreign exchange remittance, was recovered. The case is covered by provision of sections 32 and 32-A of the Customs Act, 1969.

(jj) Denied. Customs Authority was competent under section 32 to assess actual duty even where goods had been cleared (1994 CLC 77 (DB)). On the basis of untrue declaration of value, the appellants' consignments were cleared.

(kk) Denied. That the contravention case, made out by the Directorate of Intelligence and Investigation-FBR Lahore reflects the mis-declaration of declared invoice on the basis of evidential record of true transactional values and foreign exchange remittances to the foreign supplier as admitted by the Management of Messrs Automotive Products (Pvt.) Ltd., Karachi, this mega tax evasion has been detected. The appellant is misleading this Hon'ble forum. The Directorate Intelligence and Investigation-FBR acted in accordance with law.

(ll)Denied. That the respondent have not exercised any powers under sections 79 and 80 of the Act, rather detected mega tax fraud regarding mis-declaration of transactional value and on the approval of FBR invoked section 32-A of the Customs Act, 1969 and acted in a lawful manner.

(mm) Denied. That the appellant with the active connivance of the clearing agent, submitted fake invoices/untrue documents before the customs authorities and the customs authorities in the light of said documents assessed the goods on the basis of values available under section 25-A of the Customs Act, 1969. If the declared values are higher than the values declared under section 25-A are to be ignored and higher values are to be accepted. G.D is to be completed under section 80 of the Customs Act, 1969. Though customs authorities acted in goods faith yet, all the concerned staff/officers joined the investigation before the Directorate. The contravention cases have been made out on the basis of specific information and retrieving true transactional value is used on evidential record and foreign exchange remittances to foreign supplier search under section 162 of the Customs Act, 1969 was legal. Hence the appellants were found involved in such mega tax evasion.

(nn) Denied. That the Board accorded ex-post facto approval to the Directorate for invoking section 32-A of the Customs Act, 1969. The Directorate has detected mega tax fraud case, supported with material evidential record/procured from the premises of appellant and duly admitted by the management of the appellant, that the firm was involved in gross under invoicing, concealment of true transactional value and remittance of foreign exchange for under invoicing of Auto Pats under the mode called as 2nd L/C and the Customs staff was kept in dark. Charge of mala fide or ulterior motive can not be attributed to the staff of Directorate of Intelligence and Investigation-FBR Lahore who performed their duties, with due diligence and knowledge to un-earth the said mega fraud.

5.The learned counsel appearing on behalf of the appellants contended that as per section 179(3) of the Customs Act, 1969 the Adjudicating Officer (respondent No.4) was required to decide the case within 120 days of the issuance of show cause notice or within such period extended by the Collector of Customs by giving reasons not exceeding 60 days provided the period during which the proceedings were adjourned on account of any stay order or ADRC proceedings or the time taken through adjournments not exceeding 30 days was excluded from commutation of aforesaid period. According to him the show cause notices was issued on 25-7-2009. The appellants filed writ petition in the hon'ble Lahore High Court, Lahore on 28-9-2009 wherein respondent No.4 was restrained from passing final order on 30-9-2009 i.e. after 65 days of the issuance of show cause notice. The stay was vacated by the hon'ble Lahore High Court, Lahore on 25-8-2011 and thereafter the original order was passed by respondent No.4 on 5-5-2012 after lapse of 253 days of the vacation of stay order. He further contended that by including 65 days consumed prior to the grant of stay, respondent No.4 took 316 days in passing the original order whereas only 150 days (120 initial days plus 30 days of adjournments) or as the case may be 210 days (120 initial days plus 30 days of adjournments and 60 days of extension granted by the Collector) were available with respondent No.4 but he could not decide the matter within said period and as such the original order was barred by limitation by 107 days and thus nullity in the eyes of law. The aforesaid period has been commuted after exclusion the period for which there was a restrain order passed by the hon'ble Lahore High Court, Lahore. The learned counsel further contended that although extension of 60 days was granted by the Collector of Customs in term of section 179(3) vide order dated 27-1-2012 yet the said order could not be termed as an order granting extension because no reasons in writing of the exceptional circumstances were recorded by the Collector himself. He further contended that the Collector in his aforesaid order only mentioned "extension allowed as requested" which will not fulfill the requirement of recording reasons of exceptional circumstances and as such the said extension was void and illegal and by including the said period, the original order would be time barred by 107 days. As regards grant of 90 days extension by FBR, learned counsel contended that firstly the Board has no power and authority to grant any extension in term of section 179(4) according to which the Board shall have the powers to regulate the system of adjudication including transfer of cases and extension of time limit in exceptional circumstances. According to him regulating the system does not mean that the Board can grant extension. In case it is accepted that regulating the system includes grant of extension then the Board would also be competent to conduct adjudication whereas no powers of adjudication of any matter have been vested in Board under section 179 of the Customs Act, 1969. He further contended that extension is always granted with the limitation prescribed for decision of any case but in this case the Board has granted 90 days extension on 30-3-2012 whereas the limitation for deciding the case was expired long before and the proceedings stood abated and as such the question of granting extension much later the expiry of limitation does not arise. He further contended that even otherwise the letter dated 30-3-2012 granting extension was not containing any reason of exceptional circumstances and as such it could not be termed as extension granted in accordance with law. He further contended that by now it is settled proposition of law that where reasons in writing of exceptional circumstances required under statutory provisions are nor recorded the extension shall be illegal and of no legal effect. In support of his contention, the learned counsel relied on "Abdul Zaheer and another v. Director-General, Pakistan Coast Guards and 4 others" (PLD 1990 Karachi 412) and "Haji Noor-ul-Haq v. Collector of Customs and others" 1998 MLD 650.He contended that since a liability was created by respondent No.4 vide original order against the appellants and as such the limitation prescribed under section 179(3) was mandatory and violation thereof rendered the said original order void and illegal ab initio having nullity in the eyes of law. In support of his aforesaid plea he relied upon the cases "Messrs Super Asia Muhammad Din and Sons (Pvt.) Ltd. v. The Collector Sales Tax Gujranwala and another" 2008 PTD 60, "Messrs Pace International Rawalpindi v. Secretary Revenue Division Islamabad" 2006 PTD 340, "CBR/Sales Tax Department v. Messrs Pace International Rawalpindi"(PTCL 2005 CL-841), and "Messrs Tanvir Weaving Mills v. Dy. Collector Sales Tax and 4 others" 2009 PTD 762 "Messrs Miraj Din v. Collector of Customs (Appeals), Excise and Sales Tax, Lahore and 2 others" 2009 PTD 2004, "IrshadAhmed and another v. Deputy Superintendent Customs (AIB) Lahore and 6 others" (2012 PTD (Trib.) 47). The learned counsel further contended that as per S.R.O. 486(I)/2007 dated 9-6-2007 the officers of the Directorate of Intelligence and Investigation-FBR were authorized to exercise the powers and discharge the duties of officers of Customs under certain provisions of Customs Act, 1969 "within the area of their respective jurisdiction". According to him Mr. Muhammad Ijaz, Superintendent was posted in Directorate of Intelligence and Investigation-FBR, Lahore and was required to exercise powers under the aforesaid notification within the territorial jurisdiction of Lahore Directorate not including the Province of Sindh including Karachi. The learned counsel further contended that no notification or authorization issued by any competent authority i.e. the Board has been placed on record extending his territorial jurisdiction beyond the area of his Lahore Directorate at any stage of the instant proceedings. According to him there was no such notification or authorization nor the said Superintendent had any jurisdiction beyond the territorial jurisdiction of the Lahore Directorate and entire action of flying to Karachi, obtaining search warrant from Karachi Courts, conducting raid, carrying out search and seizure of record and other articles at Karachi were without jurisdiction and lawful authority. According to learned counsel the said Superintendent was neither conducting any inquiry nor investigating any case and as such he was neither competent nor authorized to proceed into other jurisdictions beyond the Province of Punjab. He further contended that F.I.R. No.8 of 2009 was recorded on 7-4-2009 at Lahore while the raid, search and seizure of record was carried out at Karachibythesaid Superintendent on 18-3-2009. Had the case been registered before 18-3-2009 at Lahore, the said Superintendent would have proceeded into other jurisdiction for arrest of the accused persons in term of section 58 of the Criminal Procedure Code, 1898. However, neither case was registered against the appellants nor any inquiry was pending and as such the entire action on the part of said Superintendent of proceeding to Karachi, obtaining search warrant, conducting raid, carrying out search and recovery of record and other articles were without jurisdiction and of no legal effect. He further contended that the Directorate-General of Intelligence and Investigation-FBR and its officers were neither competent nor authorized to take any action under sections 32 and 32-A of the Customs Act, 1969 as no powers under the said provision of law were entrusted to them vide S.R.O. 486(I)/2007 dated 13-9-2007. He referred number of judgments rendered by this Tribunal holding that the Directorate of Intelligence and Investigation-FBR had no jurisdiction and power to take any action under section 32 of the Customs Act, 1969. He further contended that the powers given under section 168(1) would not be helpful as no powers under charging provisions of section 32 were delegated to the said Directorate and its officers. The learned counsel further contended that there were near about 40 largest importers of auto spare parts from the same source and their consignments were also being cleared on the same value which was applied to the consignments of the appellants but not a single case of under invoicing was made against them and the appellants were singled out and as such the appellants were discriminated. He referred to Article-25 of the Constitution of Islamic Republic of Pakistan, where-under all citizens are equal before law and are entitled to equal protection of law. According to him, this fact was also admitted by the Collector of Customs (Appeals) in the impugned order. According to him no reasons and findings for creating liability against the appellants were given by the original adjudicating authority and this infirmity in the original order was found valid by the Collector of Customs (Appeals), Lahore but neither the said order was set aside nor the matter was remanded, rather the original order was maintained without there being any justification by respondent No.5. He further contended that section 162 is to be read in harmony with section 163 of the Customs Act, 1969 according to which only Assistant Collector or any other officer of like wise rank can apply for search warrant and conduct raid on the basis thereof. According to him Mr. Muhammad Ijaz, Superintendent was neither Assistant Collector nor equivalent to Assistant Collector and as such entire action on his part was without jurisdiction. He further contended that since the raid, search and seizure were illegal and without jurisdiction and as such the documents, record and other articles recovered or seized in such illegal manner cannot be used for any purpose against the appellants. In support of thereof he relied upon "MessrsAhsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad v. Federation of Pakistan" (2003 PTD 2037), "Food Consults (Pvt.) Ltd. Lahore and another v. Collector (Central Excise and Sales Tax) Lahore and 2 others" (2004 PTD 1731), "Federation of Pakistan through Secretary Ministry of Finance Islamabad v. MessrsMaster Enterprises (Pvt.) Ltd." (2003 PTD 1034), "MessrsZakria Enterprises v. Muhammad Musharaf and 7 others" (2005 PTD 1200), "Chairman Central Board of Revenue v. MessrsHaq Cotton Mills (Pvt.) Ltd. Burewala" (2007 SCMR 1039) and "Collector of Sales Tax and others v. MessrsFood Consults (Pvt.) Ltd. and another" (2007 PTD 2356). The learned counsel further contended that section 32 would only attract if any person in connection with any matter of Customs makes or signs or causes to be made or sign or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other documents, whatsoever, or makes any statement and answer toany question put to him by an officer of customs which he is required to answer or submits any false statement or documents knowingly or having reason to believe that such document or statement is false in any material particular. According to him neither any such document was filed nor any statement was made by the appellants nor any officer of customs alleged that the appellants filed any false document or statement or declaration and as such the provision of section 32 and its penal clauses are not attracted in this case. He further contended that according to F.I.R.and show cause notices the alleged under invoicing was made in active connivance with customs staff as well as the customs clearing agents. According to him none of the customs officer or employee was evenjoinedinthiscasenoranyonefromcustomswasservedwithshow cause notice nor any departmental action was taken against any such employee. As regards the customs clearing agents, this Tribunal has already exonerated them from all the charges vide judgment dated18-1-2013 passed in C.A. No. 172/LBof2012againstwhichnofurtherappealwasfiledbythedepartmentandassuchitattained finality in term of subsection (4) of section 194-B of the CustomsAct,1969.Accordingtolearnedcounseltheentireclearanceof auto spare parts imported by the appellants and large numberofotherimporterswasmadebythecustomsauthoritiesonthe basis of value determined by the Directorate-GeneralofCustoms Valuation Karachi in term of section 25A of the Customs Act, 1969. The assessment of auto spare parts imported by the appellants and large number of other importers was made on the Customs value determined by the said Directorate-General in term of sub-section (1) becausetheCustomsvaluedeterminedundersaidprovisionoflawshall be the applicable customs value for assessment of the relevant imported or exported goods in term of subsection (2) of section 25A of the Customs Act, 1969 and as such the question of under-invoicing does not arise. On the basis of aforesaid submissions the learned counsel prayed to set aside the impugned order passed by the Collector of Customs (Appeals) as well as original order passed by the adjudicating officer.

6.On the other hand the departmental representative while supporting the impugned order contended that the Collector (Appeals) has made further inquiry and dealt with all factual and legal issues raised by the appellants and as such the infirmity if any in the original order stood rectified. He referredto section 193-A (3) of the Customs Act, 1969 and stated that the Collector (Appeals) had enough powers to make further inquiry. On query, the learned departmental representative could not point out anything in respect of which Collector of Customs (Appeals) had made further inquiry. He also admitted that the original order was not containing the findings of the Adjudicating Authority. He further contended that the delay in deciding the case took place as there was restrain order passedby the hon'ble Lahore Court, Lahore. He also stated that the appellants sought various adjournments and that 60 days extensionwasgranted by the Collector of Customs vide orderdated27-1-2012 and 90 days extension was allowed by the Board vide order dated 30-3-2012 in term or section 179(3) and (4) of the Customs Act, 1969. According to him, the original order was passed within limitation prescribed under the law. He, however, admitted that the restrain order dated 30-9-2009 was vacated by the hon'ble Lahore High Court, Lahore on 25-8-2011. He admitted that the restrain order was passed after lapse of 65 days of the issuance of show cause notice and that the extension was granted by the Collector on 27-1-2012. He, however, could not controvert the assertion of the learned counsel for the appellant, that the Collector had grantedextension much after expiry of limitation prescribed under section 179(3) after excluding the period in respect of which there was a stay order and 30 days on account of adjournments sought by the appellants. He also could not controvert that no reasons were recorded by the Collector while granting 60 days extension. He also admitted that the letter of Board dated 30-3-2012 also not containing any reason of exceptional circumstance. He, however, contended that the Board has the authority to grant extension in term of section 179(4) of the Customs Act, 1969. He further contended that since the officers and staff of the Directorate-General of Intelligence and Investigation-FBR were entrusted powers under section 168(1) for making seizure of record and other things and, thus, can also exercise powers under sections 32 and 32-A of the Customs Act, 1969 on the basis of such record and things. He, however, admitted that sections 32 and 32-A are not figuring in S.R.O. 486(I)/2007 dated 9-6-2007. According to him, Mr. Muhammad Ijaz, Superintendent and other staff was duly authorized and delegated powers by the Director-General and Director to conduct raid and carry out search for recovery of record and other things at Karachi which was beyond the territorial jurisdiction of the said staff. He, however, could not place on record or show any such authorization or as the case may be delegation made by the Director-General and Director or any other competent authority. He, however, admitted that no case was registered prior to 18-3-2009 nor any investigation was pending against the appellants before the said date and that the F.I.R. was recorded much later on 7-4-2009. He also admitted that there may be near about 40 or more than that importers of the same items from the same source. He also admitted that the clearance of all the importers of auto spare parts was allowed assessment made on the basis of value determined in term of section 25-A of the Customs Act, 1969 by the Directorate-General, Customs Valuation, Karachi. He could not controvert the assertion of thelearned counsel of the appellants that the same value was applied by the Customs authorities to the goods imported by the appellants. He further contended that Mr. Muhammad Ijaz, Superintendent was gazetted officer competent to take action under Section 162. He, however, admitted that the said officer was not equal in rank with Assistant Collector and as such he cannot take any action under section 163 of the Customs Act, 1969. He also admitted that neither any one from Customs department was joined in investigation nor any action was taken against them in this case. He also admitted that no further appeal or reference was filed by the department against the judgment dated 18-1-2013 passed by this Tribunal exonerating the Customs Clearing Agents. He also admitted that there was no complaint against the appellants from Customs department side that the import documents presented by them were found false or as the case may be they filed false statement or declaration before the said authorities at the time of clearance of their consignments. He further contended that his Directorate detected mega fraud of tax evasion committed by the appellants and that ex-post facto approval of the Board was also sought for invoking section 32-A of the Customs Act, 1969. He further contended that while disposing of appeals filed by the department against the judgment of hon'ble High Court of Sindh at Karachi regarding jurisdiction of the Directorate-General of Intelligence and Investigation-FBR under Section 32 of the Customs Act, 1969 reported as 2004 PTD 2994 and 2005 PTD 23,theadverseremarksgivenbythe hon'ble-High Court of Sindh at Karachi were expunged by the hon'ble Supreme Court of Pakistan vide order dated 25-4-2006. He, however, admitted that only adverse remarks were expunged and no other order was passed meaning thereby that the law laid down by the hon'ble High Court of Sindh at Karachi in aforesaid cases was maintained by the Apex Court. According to him, there is no infirmity in the impugned order which is well-reasoned having been passed by the Collector (Appeals) in accordance with law. He prayed that the appeal being devoid of merits be dismissed and the impugned order be maintained.

7.We have heard the arguments advanced by the rival parties and perused the case record carefully. First of all we incline to take up the issue of limitation in term of section 179(3) of the Customs Act, 1969. The show cause notice was issued in this case on 25-7-2009. The appellants filed Constitutional Petition in the hon'ble Lahore High court, Lahore in which thedepartment was restrained from passing any final order on 30-9-2009. The stay granted was later-on vacated by the hon'ble Lahore High Court, Lahore on 25-8-2011 and thereafter the original order was passed on 5-5-2012. As per subsection (3) of section 179 of the Customs Act, 1969 the cases shall be decided within one hundred and twenty days of the issuance of show cause notice or within such extended period by the Collector for which reasons shall be recorded in writing but such extended period shall in no case exceed sixty days provided that any period during which the proceedings are adjourned on account of stay order or alternative dispute resolution proceedings or time taken through adjournments by the petitioners not exceeding thirty days shall be excluded for the commutation of the aforesaid period. Thus, the period from 30-9-2009 to 25-8-2011 was excluded as there was a restrain order passed by the hon'ble Lahore High Court, Lahore. Excluding the aforesaid period as well as thirty days taken for adjournments the case was required to be decided within 150 days (120 days plus 30 days) ending on 17-11-2011 but the original order in this case was passed on 5-5-2012 after lapse of 318 days and if 150 days (120 days plus 30 days) are excluded from the said period the original order was barred by limitation by 288 days. As regards 60 days extension granted by the Collector vide order dated 27-1-2012, the objection of the learned counsel of the appellants that firstly the said order should have beenpassedwithinthelimitationwhichendedon17-11-2011 when the proceedings stood abated and grant of any extension thereafter by the Collector was immaterial carries weight. Moreover, the Collector was required to grant extension for which reasons shallberecordedinwritingbuttheperusaloforderdated27-1-2012 revealed that no reason, whatsoever, was recorded by the Collector. The order dated 27-1-2012 passed by the Collector only containedthewords"extension allowed as requested"whichcannotbe termed as reasons recorded by him by any stretch of imagination.Thecontentionoflearnedcounselthatsincenoreasonsinwritingwere recordedbytheCollectorwhilegrantingextension,therefore,theorderdated 27-1-2012cannotbetermedasavalidorderforgranting extension in term of subsection (3) of section 179 of the Customs Act, 1969 is correct as held in case "AbdulZaheerandanotherv.Director-GeneralPakistanCoastGuardsand4others"(PLD 1990 Karachi 412) in which the learned Division Bench held as under:--

"Controverting the contention of the petitioners that the order of extension, passed by the Collector, does not contain any reasons, Mr. Shaukat Hayat, the learned counsel for the respondents, maintains that such reasons are to be found in the letter for extension addressed to the Collector of Customs and since the extension is in response to such letter, the requisite reasons are verifiable. We do not think that the requirement for recording of reasons for the extension to issue a show cause notice under the proviso to section 168(2) is merely mechanical or of a procedural character. Where the law requires that reasons shall be recorded for the passing of an order such reasons, if the order be judicial, must of necessity be found in the order itself and the order has to be a speaking order. If not the same would suffer from an error apparent on the face of the record and thus fall short of satisfying the requirement of law. Mere reference in the order to the request for the passage of the order, the request incorporating due justification or reasons, would not make such reasons to be part of the order because the contemplated reasons are to be found within the order itself and not beyond. In cases of quasi-judicial orders, requiring "reasons to be recorded in writing", as here, the only plausible difference can, perhaps, be that while reasons in writing must still be recorded the relevant order may be retained on the file and a formal communication of extension may be addressed separately. Even this is not the case in these proceedings and a purely subjectivesatisfactiononthepartoftheCollectorclearlyfalls short of the statutory requirement. On this score, we do not find the Collector's order of extension to be valid or sustainable."

8.The appellants placed on record at page 220 annex-M of the appeal the copy of the order dated 27-1-2012, perusal of which revealed that neither any separate order was passed nor the Collector has recorded any reason for granting extension on the file and as such the order dated 27-1-2012 granting extension for 60 days is clearly falls short of statutory requirement and as such it is neither valid nor sustainable at law. Similar views were taken by the learned Division Bench of hon'ble Lahore High Court, Lahore in case "Haji Noor-ul-Haq v. Collector of Customs and others" 1998 MLD 650hence we feel no hesitation to hold that the extension of 60 days granted by the Collector cannot be termed as an extension under subsection (3) of section 179 of the Customs Act, 1969 and the limitation for deciding case by the adjudicating,authority after excluding period for which there was stay as well as 30 days on account of adjournments ended on 17-11-2011. As regards the extension for 90 days granted by the Board vide letter dated 30-3-2012, it is observed that the same too does not contain any reason of exceptional circumstance. The contention of the learned counselthat the Board can regulate the system of adjudication including transfer of cases and extension of time limit in exceptional circumstances does not empower the Board to grant extension also carries force because the Board has to regulate the system by laying down procedure for conducting adjudication, transferring of cases and granting extension of time limit. However, even if the Board has the power, the letter dated 30-3-2012 not containing any reason of exceptional circumstance is again short of statutory requirement contained in subsection (4) of section 179 of the Customs Act, 1969. Moreover, since the limitation for deciding case stood expired on 17-11-2011, thus, the question of granting extension on 30-3-2012 by the Board does not arise. Hence, we feel no hesitation to hold that the order-in-original dated 5-5-2012 passed in this case was barred by limitation in term of section 179(3) by 238 days. This Tribunal in an earlier case "Irshad Ahmed and another v. Faiz Ahmed Chaudhry, Deputy Superintendent Customs (AIB Lahore) and 6 others" (2012PTD (Trib.) 47) has already dealt with the issue of limitation prescribedunderSection 179(3)oftheCustomsAct,1969anditsnatureasto whether it is directory or mandatory and as such to understand rationaleofthefindingsinthesaidcase,itwouldbeappropriateto reproduce the relevant Paras of the said judgment which reads as under:-

"6. As regards Issue No.(i) of Para 5, the order in original was issued under section 179(3) of the Customs Act, 1969 being time-barred as not issued within the prescribed time limit of (120) days or extended period of (60) days, it is observed that the show-cause notice in this case was issued on 30-9-2008 and the order-in-original was issued on 5-5-2010. As such the order-in-original is admittedly time barred by 112 days. Even ifthe adjournments sought by the appellants which is approximately (30) days and the stay given by the Court which is approximately (260) is excluded then, too, the order-in-original is time-barred by (112) days. The issue of time bar has time and again being discussed in a number of judgments delivered by the superior judicial for a and the provisions relating thereto are mandatory in nature for implementation by all sub-ordinate judicial and quasi-judicial forum in view of the Doctrine of Binding Precedents and Stare Decissve. In this connection the department has vehemently contested that time period prescribed under the statute namely, section 179(3) of the Customs Act, 1969 is administrative and directory in nature and not mandatory, hence does no effect proceedings, if any, concluded after expiry of time limit. It further says that there is nothing in section 179(3) of the Customs Act, 1969 nor in any provision of Act that specifies the section for the nullification of the order to the adjudicating officer for non-compliance of the time limit. In this regards, the department has referred to the Article 254 of the Constitution of Islamic Republic of Pakistan and the judgment of the Supreme Court of Pakistan reported as 1993 SCMR 311. The Article 254 of the Constitution is general in nature and does not specify of rebut statutory provisions contained in special/specific Acts. Otherwise there is no requirement for legislative to prescribe different limitation periods for different statutes. Redundancy cannot be attributed to these statutory prescribed time limits.

7. The judgment of the Hon'ble Supreme Court of Pakistan referred to by the respondent is in respect of issuance of a notice to the incumbent under section 171 of the Customs Act, 1969 to apprise him of the grounds of any action either of seizure or detention of goods and is deemed to be completed if the incumbent is otherwise informed of the grounds either through issuance of a notice under section 26 of the Customs Act, 1969. This notice under section 171 even otherwise does not specify any time limit. This contention of the department that the prescribed limitation is merely directory is not tenable in view of the following judgments of the Hon'ble Lahore High Court, Lahore in the case of Super Asia Muhammad Din and Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and others reported as 2008 PTD 60.

"The claim of the Revenue that the prescribed limitation of 45 days for 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 in action on the part of 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 restrictstheexecutivepowertotouchthepocketofthetaxpayer thereby creating a threat after its expiry even if there was good case for creation of liability he will not be dragged in."

8. The above contention of the Revenue is also negated by the ratio decidendi settled by the Hon'ble, Supreme Court of Pakistan in Nigina Silk Mills Lyalpur v. The Income Tax Officer and the 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 rights of escapment ofassessment by lapse of time."

9. The Hon'ble Supreme Court of Pakistan in the above referred two judgments 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, are the legality 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, 11th Addition. Even if two interpretations are equally possible, the onethatsavesvestedrightswouldbeadoptedintheinterestof justice specially where we are dealing with a taxing stature. The appellant herein had already acquired the vested rights 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."

10. In the case of Pace International Rawalpindi v. Secretary Revenue Division, Islamabad, the Federal Tax Ombudsman (FTO) while their judgment reported as 2006 PTD 340 has observedthattheassessmentofsalestaxofapersonindefaultwastobemadewithin45daysoftheissuanceofshow-causenoticeandpassingoforderinoriginalbeyondthatperiodistime-barred. Thispositionwasreinforcedintheir judgment of SS Oil Mills Ltd. v. Secretary Revenue Division,LahorereportedasGST2005CL592regardingthe orders issued beyond statutory limitation period. The judgment of the Federal Tax Ombudsman (FTO) in the case of Pace International Rawalpindi by the president in their order reported as PTCL 2005 CL 841 states that the time limit prescribed under section 36(3) is mandatory because a public functionaryisempoweredtocreatealiabilityagainstacitizen.

11. ThesameviewpointhasbeentakenbytheHon'bleSupremeCourtofPakistanintheirjudgmentreportedas1992 SCMR 1898. It in so many words states that while construing the financial statues, its terms are strictly to be followed:--

" .Thirdly, while considering a financial statue, its terms are strictly to be followed. Keeping in view these principles, for short levied duties on account of "inadvertence, or error misconstruction", section 32(3) of the Customs Act, 1969 provides that for recovery notice shall be served 'within six month'. If that is not done, like a suit for recovery of money after lapse of time prescribed by law of limitation, the recovery becomes unenforceable. Therefore; the provision is not merely directory as concluded by the learned Deputy Attorney General. .."

12. The Central Board of Revenue has also clarified this issue vide its Letter No.5(4)/CEJ/2000 dated 23-12-2000 that the provisions relating to time period within which the order-in-original is to be passed are mandatory. The relevant part of C.B.R's aforesaid letter reads as under:---

"IthasbeenobservedwithconcernintheBoardthatatpresenta huge number of cases as reported by the Collector (Adjudication) are pending adjudication. Collector (Adjudication) are aware that provisions relating to adjudication ofcasesintheCustoms,SalesTaxandCentralExciseLawwhichbind the adjudicating authorities to decide the cases within 45 days of the issuance of the show cause notice or within such extended period,forwhichreasonsshallberecordedinwritingandthat such extended period shall in no case exceed 90 days in all. The Member (Central Excise) while expressing concern over the huge back log has directed that all out efforts be made to ensure due compliance of the aforesaid mandatory provisions of the law and decide the pending cases within the prescribed time limit of 45 days to avoid any legal complications."

13. The above view that once limitation period expires the order or assessment becomes time-barred is also supported by various judgments of the superior judicial fora reported as 2009 SCMR 1126, 2002 MLD 180, 2003 PTD 1354, 2003 PTD 1797, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 107, (2010) 109 Taxation 221. Hence Issue No. (i) is therefore, answered in the affirmative.

9.The contention of the learned counsel that the staff of Directorate of Intelligence and Investigation-FBR, Lahore was not competent to conduct raid, carry out search and seize the record and other articles at Karachi being outside territorial jurisdiction of the said Directorate also carries weight because it is clearly specified in S.R.O. 486(I)/2007 dated 9-6-2007 that all the officers of the Directorate shall exercise the powers and discharge the duties of officers of Customs "within the areas of their respective jurisdiction". Admittedly the Karachi was not falling within jurisdiction of the Lahore Directorate. Moreover, the learned DR could not place on record or even show any notification or order passed by a competent authority to extend the jurisdiction of Mr. Muhammad Ijaz, Superintendent and his staff into other jurisdictions. It is significant to note that even at the time of raid, search and seizure neither any case was registered nor any investigation against the appellants was pending at Lahore. Had there been case registered or investigation pending the officer could have proceeded into other jurisdiction for the arrest of the accused persons in term of section 58 of the Criminal Procedure Code, 1898. Thus contention of the learned counsel for the appellant that since the raid, search and seizure of the record and other articles were without jurisdiction and as such the documents, record and other articles recovered or seized in such illegal manner cannot be used for any purpose against the appellants in the light of law laid down in cases "MessrsAhsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad v. Federation of Pakistan" (2003 PTD 2037), "Food Consults (Pvt.) Ltd. Lahore and another v. Collector (Central Excise and Sales Tax) Lahore and 2 others" (2004 PTD 1731)., "Federation of Pakistan through Secretary Ministry of Finance Islamabad v. MessrsMaster Enterprises (Pvt.) Ltd." (2003 PTD 1034), "MessrsZakria Enterprises v. Muhammad Musharaf and 7 others" (2005 PTD 1200), "Chairman Central Board of Revenue v. MessrsHaq Cotton Mills (Pvt.) Ltd. Burewala" (2007 SCMR 1039) and "Collector of Sales Tax and others v. MessrsFood Consults (Pvt.) Ltd. and another" (2007 PTD 2356) is valid. As regards the powers of the officers and staff of Directorate of Intelligence and Investigation-FBR, Lahore under sections 32 and 32-A of the Customs Act, 1969, this Tribunal has already held in its judgment dated 24-3-2010 rendered in C.A. No.603/LB of 2009 titled "Khawaja Waseem v. Superintendent, Intelligence and Investigation-FBR and 2 others" that the delegation of powers to the said staff under section 168 would not be helpful to them because the powers under charging clause in term of sections 32 and 32-A were not vested with them in this behalf under S.R.O. 486(I)/2007 dated 9-6-2007. The aforesaid view was based by this Tribunal on the judgment of the hon'ble High Court of Sindh at Karachi reported as 2004 PTD 2994 and 2005 PTD 23 as according to learned DR the law laid down in the said cases wasnot set aside and only adverse remarks against the officers of the department were expunged while disposing of the appeals of the department by the hon'ble Supreme Court of Pakistan. Thus, we confirm that the officers and staff of Directorate of Intelligence and Investigation-FBR, Lahore were not empowered to take any action under the said provision of law. The objection of the learned counsel that the appellants were discriminated as no action against the other importers importing same auto spare parts from same source at the same value which was applied to the goods of the appellants was taken and they were singled out also seems valid because under Article 25 of the Constitution of Islamic Republic of Pakistan, all citizens are equal before law and are entitled to equal protection of law. The perusal of the originalaswellasappellateorderfurtherrevealedthatnoreasonsandfindingsforburdeningtheappellantswithhugeliabilityweregivenby the original adjudicating authority nor any further inquiry of any sort was made by the Collector (Appeals) whereas both theseforums were required to address each and every issue raised before them. There isalsonodenialthattheassessmentoftheautospareparts imported bythe appellants andlargenumberofotherimportersof thesamegoodsfromsamesourcewasmadeduringthesamerelevantperiod on the value determined in term of section 25-A(1)bythe Directorate-General ofCustomsValuation,Karachiandaccordingtosubsection(2) the Customs value determined under subsection (1)of section 25-A of the Customs Act, 1969 shall be the applicable customs valuefor assessmentoftherelevantimportedandexportedgoodsand probably it was the reason that no one from Customs departmentwas blamed for making wrong assessment. Perhaps, it was also the reasonsofnotfilingfurtherappealorreferenceagainstthejudgmentof this Tribunal dated 18-1-2013 passed in C.A. No.172/LBof2012exoneratingthecustomsclearingagentsfromthechargesofmis-declarationlevelledagainstthemintheshowcausenotice.

10.Inviewoftheforegoing,theadjudicationproceedingsandthe superstructure built thereon is infested with legal infirmities and patent violation of mandatory provisions contained in section 179(3) of the Customs Act, 1969 and other provisions hereinbefore discussed in detail which make the entire proceedings void, illegal and without jurisdiction ab initio. Hence, the appeals filed by the appellants are allowed and impugned order along with original order is set aside. Consequently the appeals filed by the department are dismissed being devoidofmerits.Theappealsstanddisposedofintheaboveterms.

SAK/118/Tax(Trib.)Order accordingly.