EMAAN IMPEX (PVT.) LTD., KARACHI VS The ASSISTANT COLLECTOR OF CUSTOMS, 2016 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1767 (2015)

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

----S. 180---Show-cause notice---Scope---Prior to passing of order-in original, it was mandatory condition to issue show-cause notice under S. 180 of Customs Act, 1969 by adjudicating authority----Non-issuance of show-cause notice could not be simply ignored as procedural irregularity---Issuance of show-cause notice was pre-requisite as show-cause notice contained brief facts, offence committed, evidence on presumption of which allegation were based and law that had been violated and penal clauses that were attracted---Main objective of show-cause notice was to enable the person to whom notice was given, to know as to what were the charges leveled against him---Show-cause notice was not a casual correspondence or a tool or a license to commence a rowing inquiry into an affair based on assumption and speculation, but it was a fundamental document that carried definitive legal and factual position of department against tax payer---Legal enforceability and jurisdictional validity of show-cause notice emanated from its context.

Case law referred.

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

----S. 193A(3)---Order in appeal, passing of---Delay of 847 days---Appeal was filed on 11-10-2012----Order under S. 193A(3) of Customs Act, 1969 was to be passed within 120 days from the date of filing of appeal i.e. on or before 08-09-2012 or within further extended period of 60 days during initial period of 120 days with reason to be recorded for extension in writing after serving a notice to person concerned----No extension had been granted by department prior to the expiry of initial period of 120 days and it was evident from the order which was silent in that regard---Department passed an order after 967 days from the date of filing of appeal which was barred by 847 days---Order passed by department was without power/jurisdiction and could not be enforced under law.

Case law referred.

(c) General Clauses Act (X of 1897)---

----S. 24A---Speaking order, essentials of---Directions of Federal Board of Revenue were to be adhered to in terms of S. 223 of Customs Act, 1969 keeping in view principles of natural justice, fair play and ratio decidendi---Perusal of order in question showed that department had not passed the same with application of mind and as per essence and spirit of law---Department intentionally and purposely had not rebutted a single ground of appeal filed before it by the party and had passed a sketchy, vague, cursory and non-speaking order, confirming that it had been passed not on objective consideration rather on personal whims and wishes---Such order was termed as illegal, void and arbitrary and as result of misuse of authority vested with department---No authority was available with department to pass such illegal, void, arbitrary order---If any Authority, Court or Tribunal gave a finding of fact which was not based on material available on record, findings so given were illegal and arbitrary and became perverse and a perverse finding of fact was violative of established principles of appreciation of evidence or record and as such not sustainable in law---Every judicial/quasi-judicial order was to be based on a reasoning containing justification for finding given in order because in absence of same, order so issued was in derogation of established principles of dispensation of justice---Order-in-appeal, in the present shape was too vague and defective as it contained no valid reasoning for rejecting the appeal---Order was in derogation of direction of Federal Board of Revenue and mandatory requirement of S. 24A of General Clauses Act, 1897---Order in question was not only illegal and void but also failed the test of judicial scrutiny and as such not sustainable in eyes of law---Appeal was allowed, accordingly.

Case law referred.

Obaydullah Mirza and Mirza Muhammad Abeer Nadeem for Appellant.

Aijaz Ahmed, Appraisers for Respondent No.1.

Date of hearing: 16th December, 2014.

ORDER

ADNAN AHMED, MEMBER (JUDICIAL-II).---Through this order, I intend to dispose off Appeal No.K-1175 of 2014 filed under section 194-A of the Customs Act, 1969 against the order of the Collector of Customs (Appeals), Karachi (here-in-after to be referred as respondent No.2) bearing No.9190 of 2014 dated 05.09.2014 maintaining the order-in-original 01/2010 dated 21.04.2012 passed by Assistant Collector of Customs, MCC of Exports, Customs House, Karachi (here-in-after to be referred as respondent No.1).

2.Briefly, facts of the case as stated in the impugned order by the respondent No. 1 are that the appellant exported a consignment against bill of export No. 79705 dated 12.12.93 and filed duty drawback claim vide No. SR2 28578 dated 19.03.94 for Rs. 116,324.00 against bank credit advise/annexure "A". Since the claim remains pending, the appellant forwarded letter dated 19.04.2006 followed by several reminders which remain un-attended, resultant, appellant filed duplicate claim annexed with all the prescribed documents under cover letter dated 31.03.2007. No progress was made in processing/sanctioning of the claims inspite of receipt of reminders dated 30.04.2009, 04.12.2009 and reply dated 18.12.2009 to the letter of respondent No.1 dated 10.12.2009. The appellant filed a complaint bearing No. 189/Khi/ Cust(80)/460/2011 who issued finding/recommendation reading as "the department agreed to pass an appealable order on merit having regarding to Findings/Recommendation of Hon'ble FTO reported in 2009 PTD 2011. In view of the above settlement, the complaint stand disposed off. In compliance of the recommendation. In compliance of the recommendation the respondent No. 1 passed the order dated 21.04.2012, operative part of which read as follows:--

"I have gone through the record of the case. The facts available on record of this case which is almost 02 decades old, do not provide any scope of re-considering the Collectorate's earlier decision as exporter has no cogent reason to justify such ordinate delay, which occurred in violation of S.R.O. 680(I)/93 dated 10.08.93, S.R.O. 685(I)/93 dated 10.08.93 and S.R.O. 602(I)/93 dated 18.02.93 read with Sections 21(c) and 37 of the Customs Act, 1969."

3.The order was challenged before Respondent No.2 by the appellant vide Appeal No. Cus-3550/2012/Exp, who also vide his order dated 05.09.2014 rejected the appeal by observing in para 5 that:--

"I have examined the case record. It is observed that appellant failed to give any plausible reason for such in-ordinate delay in furnishing the BCA in respect of the exported goods. I therefore, rule that impugned order is correctly passed by the Adjudicating authority and the same is upheld."

4.The appellant Messrs Emaan Empex (Pvt.) Ltd., Karachi has challenged the order of the respondent No. 2 by way of the instant appeal the consultants/advocates argued on the strength of the grounds incorporated in the memo. of appeal and which are inter alia:

i.That the Order-in-Original No.1/2012 dated 21.04.2012 has been passed by respondent No. 1 without issuance of any show cause notice, which is mandatory under law as it is settled proposition of law that prior to proceeding for adjudication either properly or summarily, it is pre-requisite to issue statutory show cause notice under section 180 of the Customs Act, 1969, enabling the person to know the leveled charges and the applicable contravened provision of the Act and the attracted penal clauses. The adjudicating authorities has no right to ignore the said mandated requirement of law. The FBR through Para 78 of Customs General Order 12/2002 dated 15.06.2002 laid emphasis on the said statutory provision. For laying stress on the same date the FBR separately renewed the proposition of law and natural justice vide letter C.No. 730-M(L)/2002. Sub-Para (iii) of Para 2 is relevant in this regard, which read as "show cause notices should contain the brief facts of the case, the offence(s) committed and the evidence (s) on the presumption of which the allegation are based, the law that has been violated and the penal clauses that are attracted. The main objective of show cause notices is that the person to whom the notice is given is enabled to fully know what are the charges leveled against him." It is mandated to issue show cause notice under section 180 of the Customs Act, 1969. Even otherwise in cases where request for summary adjudication is made, in the words of Customs, Excise and Sales Tax Appellate Tribunal, Peshawar recorded in his judgment reported as 2004 PTD (Trib.) 1324 it was stated that:---

"It is not understood as to under what law such right, which is primarily the duty of the Adjudicating Officer under Section 180 of the Customs Act, 1969 to issue show cause notice before confiscation of goods or imposition of penalty, could be waived off by the owner of the goods or person, for imposition of penalty on him.

Section 180 stipulates that three mandatory conditions are to be fulfilled step by step in chronological order and not simultaneously by the Adjudicating Officer before confiscation of goods or imposition of penalty.

The provisions of section 180 of the Customs Act, 1969 does nowhere provide for the waiver of show cause notice on the part of any person who has limited choice under it.

The provisions of Section 180 of the Customs Act, 1969 do not absolve the Adjudicating Officer of discharging his responsibility to comply with the given charter."

The order-in-original reveals with clarity that no show cause notice has been issued to the appellant by the respondent. Issuance of show cause notice is a mandatory requirement for the adjudicating officers while adjudicating issues before them. This is also in violation of the principle of natural justice as held by Superior Courts in umpteenth reported judgments that:--

a)It is the first principle of natural justice to issue a show cause notice to the person concerned. It is a mandatory requirement for crystallization of monetary liability against the taxpayer through stating of material particulars of the case along with applicable provisions of the relevant law.

b)It is a well settled proposition of law that if a thing is required by law to be done in certain specific manner must be done in the same manner as prescribed by law or not at all as per maxim "Expression Facit Cessare taciturn" as observed by the Apex Court in their judgments reported as PLD 1964 SC 536, 2003 SCMR 1505, 2006 SCMR 129.

c)Violations of principle of natural justice can be equated with violation of provisions of statutory instruments.

d)It is the common principle which governs the administration of justice in Islam that in case of liability with penal or quasi penal consequences and/or deprivation of basic rights, a notice as well opportunity of hearing is absolutely necessary. This by itself has to be recognized as a basic right as observed by Hon'ble Supreme Court, Shariat Appellate Bench in the case of Pakistan v. Public at large reported as PLD 1987 Supreme Court 304.

e)Even issuance of a proper show cause notice to a person is an essential ingredient of the expression "audi alterm partem" which literally means that no man shall be condemned unheard. The right of being issued with a show cause notice and the right of being personally heard are inseparable and inalienable rights of the defendant and cannot be denied to the person concerned under any circumstances.

f)In one case, the suspension without issuance of a show cause notice was quashed by Dhaka High Court and was later confirmed by the Supreme Court that the rule of natural justice applies though there may not be any positive words in the statute, for such requirements and such rules are minimum requirements of fairness as reported in the case of University of Dhaka v. Zakir Ahmed PLD 1965 Supreme Court 90. This has also been followed by the Honourable Supreme Court of Pakistan in their judgment reported as 1994 SCMR 2232. As observed by the Hon'ble Supreme Court in the judgment M.D the Bank of Punjab v. Syed Shahzad Hussain reported as 2006 SCMR 1023, it is also a settled principle of law that principle of natural justice must be read in each and every statute unless and until it was prohibited by the wording of the statute itself as the law laid down by this Court in Sir Edward Snelson's case PLD 1961 SC 237, Fazal-ur-Rehaman's case PLD 1964 SC 410, Zakir Ahmed's case PLD 1965 SC 90, Pakistan Come Mines' case 1983 SCMR 1208 and Pakistan's case PLD 1987 SC 304.

In view of the provision of Customs Act, 1969 and above judgments of the Superior Courts the order-in-original passed by the respondent No. 1 is ab initio, null and void and the structure built upon this order has no legal value.

ii.The emphasis laid by the respondent in the order on the data available in the computer system which shows the rejection of the claim is of no substance as the computer sheet with clarity con-firm that the status was fed as rejected by Mr. Gulzar, Appraising Officer, who does not figure as an authority for adjudication in the provision of Section 179 of the Customs Act, 1969 or para 49 of CGO 12/2002 dated 15.06.2002. Resultant, the act of feeding the status as rejected by the Appraiser is an act of usurpation of power, rendering the fed status as without power/jurisdiction. hence, ab-inito void and of no legal effect.

iii.The said proposition of law stood validated from judgment reported as Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 A.L.D. 449 (1) Karachi AAA Steel Mills Ltd v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2006 PTD 2237, Pak Suzuki Motors Company Ltd Karachi v Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832.

iv.That the respondent No. 1 was duty bound to pass the impugned order in the light of finding/recommendation of the Hon'ble FTO after taking into consideration the finding/recommendation of the Hon'ble FTO reported as 2009 PTD 2011 in the case of Messrs Connivance Food Industries (Pvt.) Ltd., Karachi that fed status in the computer data base should be rectified and claim should be processed /sanctioned after condoning the delay if any. The Collectorate in compliance of that corrected the data in the system and processed/sanctioned the claim after condoning the delay if any. The Collectorate processed/sanctioned claim akin to the appellant and Messrs Connivance Food Industries (Pvt.) Ltd., Karachi as evident from the Annexures marked as letters dated 24.03.2007 , letter of Collectorate dated 17.05.2007, 15.06.2011, 05.07,2011 and PRAL dated 14.06.2011, 12.07.2011 letter of Collectorate dated 16.07.2011 and PRAL dated 26.08.2011 and 29.09.2011. To the contrary, the respondent totally ignored the order of the Hon'ble FTO and committed the defiance. Rendering the order based on might and as such un-lawful.

v.That similarly the Collectorate of Export passed/sanctioned 493 claims pertaining to the year 1988-2000 amounting to Rs.22,984407.00 of Messrs Crecent Textile Mills Ltd, Lahore upon submission of duplicate claims, which were even not in accordance with the direction given in Standing Order No. 1/2007 dated 21.05.2007 status of which were fed in computer as rejected by the Collectorate as evident from letters of the Board and Collectorate. That despite the appellant standing on the same pedestal as the other exporter, the respondent and the Collectorate of Export gave him a partial treatment and as such discriminated him, which is barred 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts "there exist no power to target incidence of tax in such a way that similarly placed person be dealt not only dissimilarly, but discriminatingly". Whereas, in reported judgment 2005 SCMR 492 the Hon'ble Supreme Court held that "A facility allowed to some one and denied to other is discrimination". The Apex Court further held in reported judgment 2010 SCMR 431 that:--

"doctrine of equality, as contained in Art. 25 of the Constitution, enshrine golden rules of Islam and states that every citizen, no matter how high so ever, must be accorded equal treatment with similarly situated persons---State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class---In fact all legislations involve some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not---What however, is prohibited under principle of reasonable classification, is legislation favouring some within a class and unduly burdening others---Basic rule for exercise of such discretion and reasonable classification is that all persons laced in similar circumstances must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not offend spirit of Art. 25 of the Constitution."

vi.That the respondent No.1 failed to incorporate in order dated 21.04.2012 the enabling provision of the Act/notification under which it is mandated upon the export (appellant) to submit bank credit advise within 120 days of the submission of the claim or export and likewise while passing order-in-appeal the respondent No. 2 is also failed to place reference on the respective section of the Acts or clause of the notification. In the absence of any enabling provision, no charge can be leveled. This lapse rendered the show cause notice and subsequent order as of no legal effect and as such void and ab-inito and as such not enforceable under law.

vii.That the order under Subsection (3) of Section 193A has to be passed by the respondent No. 2 within 120 days from the date of filing of appeal or within further extended period of 60 days in terms of its proviso upon availability of exceptional circumstances and recording of those after issuance of notice to the tax payer as held by Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881, Khalid Mahmood v. Collector of Customs. In the instant case the appeal was filed on 11.05.2012 and the order should have been passed by the respondent No. 2 on or before 08.09.2012. To the contrary he passed order on 05.09.2014 after lapse of 847 days. Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held in the reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263; Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and 2009 PTD 1978 Leo Enterprises v. President of Pakistan and others, 2010 PTD (Trib.) 1010 Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others.

viii.The order passed by the respondents No. 2 shows that it has not been passed with the application of mind and provision of the Act. Instead is a non speaking order and did not conforms to the mandated requirement of Section 24-A of the General Clauses Act, 1897 and this stood validated from the fact that no rebuttal on the grounds of appeal and supplied judgments have been given and also not containing substantial reasons and did not show it was passed on objective consideration. Such type of orders are deem to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily order in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication/Appellate orders are being violation of basic principle of the good governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib.) 619.

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

5.No cross-objection under subsection (4) of Section 194A has been filed by the respondent within the period specified therein not till the date of hearing. Instead Mr. Aijaz Ahmed, Principal Appraiser, stated that the order of respondent is correct in law and fact and in support of his contention submitted comments on grounds signed by respondent No. 1 reading as:--

(i)Denied. The Order-in-Original No. 01/2012 dated 21.04.2012 was passed by the Assistant Collector of Customs, on the recommendation /finding of the Federal Tax Ombudsman (FTO) to enable the appellant to prefer appeal against rejection of duty drawback claim. The proper hearing opportunity was provided to the appellant. The appellant failed to submit any documentary evidence or prove regarding the submission of BCA with the stipulated period, therefore duty drawback claim was rejected.

(ii)Denied. The appraising Officer (Appraiser) is the first concerned Officer to check all aspects of the case/claims prior to sanction duty drawback amount. It is not correct that the Appraiser has no power to reject the claim. The Appraiser scrutinized all aspects/documents and then recommend the claim for acceptance or rejection as per monitory limits, sanction authority lies with the Principal Appraiser, Assistant Collector, Deputy Collector, Additional Collector and Collector of Customs and not a single person is responsible for any act, as all have their own jurisdiction.

(iii)Needs no comments.

(iv)Denied. The respondent acted as per finding/recommendation of the FTO. In the complaint filed by the exporter/appellant. The hearing opportunity was provided before issuing the order-in-original.

(v)Denied. The sanction of duty drawback duplicate claims of the exporters is not relevant in this case as the delay in submission of BCA was inordinate and no plausible reason was given to prove with documents regarding submission of BCA after such a long gap. Due to non submission of reason for delay the claim was tantamount to rejection. The act of the respondent was not partial but as per law no provision of the law were violated. The rejection of the claim was legal and within the limit of law and same was rejected with authority.

(vi)Denied. The Order-in-Original was passed with authority on the violation of the provisions of SRO's quoted in the order. The BCA was to be submitted with 120 days and there is no criteria wherein an indefinite period was available to the exporters to submit BCA. The foreign exchange must be brought in the country within the stipulated period the delay in submission of BCA can be condoned if the exporter has some reasonable grounds/plausible reasons.

(vii)Denied. The Order-in-Original was passed with authority within the stipulated period for the issuance of the same. There was no violation of the provision of any section of law.

(viii)That the Order-in-Original was passed by the Assistant Collector as per recommendation of the FTO to enable the appellant to file appeal against rejection of duty drawback claim.

(ix)Needs no comments.

6.Rival parties heard and case record perused.

7.That prior to passing of Order-in-Original , it is mandatory condition to issue show cause notice under section 180 of the Customs Act, 1969, inspite enunciation in Section 180 of the Customs Act, 1969, the Board time and again issued direction/orders, para 78 of CGO. 12/2002 is relevant and so the letter C.No. 730-M(L)/2002 dated 15.06.2002 in this regard. These lay stress for issuance of show cause notice by the adjudicating authority prior to passing of order. The non issuance of show cause notice cannot be simply ignored as procedural irregularity, issuance of show cause notice is pre-requisite as the show cause notice contains the brief facts, the offence committed and the evidence(s) on the presumption of which the allegation are based, the law that has been violated and the penal clauses that are attracted. The main objective of show cause notice is that the person to whom notice is given is enable to fully know what are the charges leveled against him. For dispensing with the condition of issuance of show cause notice, the respondent No. 1 took shelter behind the findings/recommendations of the FTO, who directed to pass an appealable order enabling the appellant to seek the remedy of Appeal available in the Act. The Hon'ble Federal Tax Ombudsman no where directed or recommended that the order so passed should be without issuance of show cause notice. Being a judicial authority he is well aware of the fact that no order can be passed without issuance of show cause notice as it is mandatory under law and under any circumstances neither he, nor any judicial forum is empowered to dispense with that. Upon receipt of the findings/recommendations of the FTO, it was mandated upon the respondent No. 1 to issue show cause notice well supported with tangible evidence referred in the show cause notice as the show cause notice is a fundamental document which comprehensively describes the case made out against the tax payer by making reference to the evidence collected in support of the same and with the narration of facts in the show cause notice along with supportive evidence which determined the offence attracted to a particular case. Beside, it is of paramount importance to adduce further that show cause notice is not a casual correspondence or a tool or a license to commence a rowing inquiry into the affair based on assumption and speculation, but is a fundamental document that carried definitive legal and factual position of the department against the tax payer, legal enforceability and jurisdictional validity of a show cause notice vested from its context, the fact suppose to be tangible evidence referred to in the show cause notice and not from the cosmetic show causing of statutory provision or from the use of statutory keywords in the show cause notice. No show cause notice in the instant case of the appellant has been issued rendering the order so passed by the respondent No.1 void ab-initio. Therefore, coram non judice and of no legal effect and jurisdiction as held in reported judgment PTCL 2004 CL 2005(sic), PLD 1961 SC 237, PLD 1964 SC 410, PLD 1964 SC 536, PLD 1965 Supreme Court 90, 1983 SCMR 1208, PLD 1987 Supreme Court 304, 1994 SCMR 2232, 2003 SCMR 1505, 2006 SCMR 129, 2006 SCMR 1023, 2013 PTD (Trib.) 353 and 2015 PTD (Trib.) 1422.

8.That the amount of duty drawback in the instant case is Rs.116,324.00 and the authority to either sanction or reject the claim of the said amount rests with the Assistant Collector of Customs as ordered by the Board in para 49 of CGO 12/2002 dated 15.06.2002. The reference made by the respondent No. 1 to the status fed in the computer as on 24.04.1996 as rejected by the Appraiser is out of place as he is no authority to either reject or sanction the claim, he is mere a processing Officer and has no authority to issue show cause notice or pass an order. The rejection by him on 04.04.96 is palpably illegal, as the said status was fed in the computer in the absence of availability of lawful authority. By mere feeding status of the claim as rejected in the computer least reject the claim unless a show cause notice is issued as per mandated requirement of law by the appropriate adjudicating authority and thereafter passing an order after deliberating/rebutting the arguments of the exporter given in reply to show cause notice. The Appraiser neither figure in section 179 of the Customs Act, 1969 nor in para 49 of CGO 12/2002. Therefore, he acted without lawful authority, rendering the feeding of status as on 24.04.1996 without power/jurisdiction, relying upon that by the respondent No.1 for rejecting the claim through the impugned Order dated 21.04.2012 is equally without lawful authority. Hence, ab-initio wrong and this has been held by the Superior Judicial Fora in the Judgments referred by the Appellant in his grounds and which are incorporated in para 4(iv) supra.

9.The respondent No.1 has stated in the Order-in-Original that the claim was registered provisionally in terms of SO. 04/94 Coll(Export) dated 03.05.94, which is erroneous as the duty drawback application available in the appeal documents does not contain PR Number instead SR2 No. 28578 dated 19.03.94, which is not meant for provisional registered claim rather regular registered claim. As regards the limitation aspect under Notification S.R.O. 680(I)/93 dated 10.08.93, S.R.O. 685(I)/93 dated 10.08.93 and S.R.O. 602(I)/93 dated 18.02.93 i.e. is also out of context and are reffered/incorporated to confuse the issue. The fact of the matter is that the limitation has to be counted either from the date of MR i.e. within 120 days or within 180 days from the date of realization of the invoiced amount as ordered in CGO. 12/96 dated 03.06.96. The remittance in the instant case has been received in bank on 14.03.2007 and claim by all means is within time even from the date of MR or the date of realization. The opinion/observation of the respondents that since the export proceeds have been realized after considerable delay, the claim needs to be rejected is not in consonance with the condition of the Notification and direction given in CGO 12/96 dated 03.06.96. The respondents are not empowered to investigate the late receipt of export proceeds and the same rests with the adjudication cell of the State Bank of Pakistan. The respondent could at the most seek authentication/genuineness of the Bank Credit Advice/Annexure "A" from the issuing Bank. There is no dispute in this regard confirming that the same is genuine and validly issued by the bank with due approval of the State Bank of Pakistan, resultant the respondent No.1 has to only check the admissibility of the duty drawback claim in the light of notification i.e. as to whether the goods exported answer to the commodity description given in column 2 of the notification, in the light of the endorsed examination report on the reverse of the Bill of Export, which is also admitted as no opinion/observation has been given in this regard by either respondent No.1 or 2 in their Orders. Resultant it was mandated upon respondent No.1 to sanction the duty drawback claim of the appellant to the extent of admissibility on the notified rates given in column 3 of the notification. The appellant has been needlessly dragged into the litigation despite no cause or reason. Therefore, the act of respondent No.1 and his subordinate is tainted with malice and renders the whole proceeding as an act of high handedness and abuse of power.

10.The mala fide of the respondent No.1 is further proved from the fact that the Hon'ble FTO in its finding/recommendation dated 16.07.2011 directed that the appealable Order be passed after compliance of mandated requirement of law and should be in consonance with the findings/recommendations given by him in similar nature of case Messrs Connivance Industries (Pvt.) Ltd., Karachi reported at 2009 PTD 2011, wherein the status of the claims of the complainant were fed as rejected in computer as of appellant, which was declared as of no substance and being without lawful authority with the direction that the status so fed in the computer be rectified and claims of the complainant should be processed/sanctioned after condoning the delay if any. In compliance to that the respondent Collectorate rectified the status in the computer and processed/sanctioned the claims after condoning the delay. To the contrary in the case of appellant inspite of the clear direction, the respondent No.1 ignored that and passed the order with the incorporation of the findings/recommendations of the Hon'ble FTO given in the complaint of the appellant with no compliance whatsoever to the findings/recommendations is given.

11.The appeal before the respondent No. 3 was filed on 11.10.2012 and an order under the proviso of subsection (3) of Section I93A of the Customs Act, 1969 should had been passed within 120 days from the date of filing of appeal i.e. on or before 08.09.2012 or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing after serving a notice to the person concerned as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881 Khalid Mehmood v. Collector of Customs. No extension was granted by the respondent No. 3 prior to the expiry of initial period of 120 days and this is evident from order which is completely silent in this regard. He passed the order after 967 days from the date of filing of appeal, therefore hopelessly barred by time by 847 days. Therefore, without powers/jurisdiction and cannot be enforced under law as held in reported judgments 2008 PTD 60, 2008 PTD 578, 2009 PTD 762, 2009 PTD (Trib.) 1263, 2009 PTD 1978, 2010 PTD (Trib.) 1010, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987, 2011 PTD (Trib.) 1146 and 2012 PTD (Trib.) 1650.

12.Notwithstanding, to the above deliberation, it seems that the respondent Collectorate deals the claims of the exporter in accordance with their likes and dislikes as evident from the fact that the claims of similar nature of M/s. Connivance Food Industries (Pvt.) Ltd., Karachi and 493 claims pertaining to the years 1988 to 2000 amounting to Rs.22,984,407.00 of Messrs Crescent Textile Mills Ltd, Lahore were Processed/ sanctioned upon submission of duplicate claims inspite of non filing those in consonance with the Standing Order No. 1/2007 dated 21.05.2007, after rectifying the status of rejected in computer as against the claim of the appellant, which has been rejected in spite of the same nature and standing on the same pedestal. Confirming that he is being given a differential treatment. This is tantamount to discrimination not permitted under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial Fora in umpteenth reported judgment, in addition to the relied upon judgments by the appellant, which are referred in para 4(viii) supra.

13.On perusal of the order dated 09.09.014, it has been observed that the respondent No. 3 has not passed it with the application of mind and as per essence and Spirit of the provision of the Act, and even in negation to the direction of the Board issued vide No. Dy-730-M(L)/ 2002 dated 15.06.2002. Sub-para (vii) of para 2 orders the Quasi Judicial Authorities to "pass a speaking order giving reason in support of conclusions. Each plea/arguments advanced by the person should be brought out in the order and if not admitted it should be rejected with reasoning it should not be left to the person concern or to the Appellate Forum to search for the reason and to speculate what induced the appellate forum to come to a different conclusion and in sub-para (viii) read that "the judgment always speaks about their authors. The judgment passed must reflect professionalism, fairness, neutrality, reasonableness, clarity and justice". The FBR subsequently renewed the direction vide letter C.No. 1(1)SPS-M(L)2014 dated 05.09.2014 with the caption "Administration of justice by the quasi judicial authority guideline regarding", para 2(a) of which is:--

"A quasi judicial is a formal expression of adjudication and it should be one which ought not to be left open to what is exactly adjudicated upon. The part of the order dealing with the decision of the action should contain the brief fact and contention of the parties from which the fact in issue or points of disagreement are necessarily to be evolved which need to be determined by the adjudicating authority. The Adjudicating Authority must evaluate these facts in issue by making a discussion of evidence produced by the party. The order must contain real point of determination and decisions thereon. The discretion which the rules give required to be judicially exercised. Make sure that no material consideration have been overlooked. The adjudicating officers should apply their mind to the facts of the case and point out issue and give a well reasoned order thereon satisfying legal requirement that all evidence has been evaluated and rival contention and arguments duly considered section 24A of the General Clauses Act, 1897 provides necessary and mandatory guidance on fair and just exercise of powers and passing a speaking order, which needs to be followed under all circumstances."

The direction of the Board and mandated requirement of The General Clauses Act, 1897 has to be adhered in terms of Section 223 of the Customs Act, 1969 and the principle of natural justice, fair play and ratio decidendi. To the contrary the Respondent No.3 intentionally and purposely has not rebutted a single ground of the Appeal No. 3550/ 2012/Exp filed before him by the appellant. And has passed a sketchy, vague, cursory and non speaking order, confirming that it has been passed not on objective consideration rather on personal whims and wishes and inapt interpretation of the provision of the Act, notifications and Para 49 of CGO.12/2002 dated 15.06.2002. Such type of order are termed by the Superior Judicial Fora as illegal, void, arbitrary and as a result of misuse of authority vested with the authority. No room was available with the Respondent No. 3 to pass such illegal, void and arbitrary order as it is a settled dictum of the Superior Judicial fora that if any Authority, Court or Tribunal gave a finding of fact which was not based on material available on record, the findings so given is illegal and arbitrary and became perverse and a perverse finding of fact is violative of the established principle of appreciation of evidence of record and as such not sustainable in law. The principle laid down by the Board and the Superior Judicial Fora is that, that every Judicial/Quasi Judicial order should be based on a reasoning containing the justification for the finding given in the order because in the absence of the same the order so issued is in derogation of established principle of the dispensation of Justice. The order in appeal in the present shape is too vague and defective as it contains no valid reasoning for rejecting the appeal. Hence it is in derogation of the direction of the Board and mandatory requirement of Section 24A of the General Clauses Act, Therefore it is not only illegal and void but also fails the test of Judicial scrutiny and as such not sustainable in the eyes of Law and this has been held by the Superior Judicial Fora in countless reported judgment referred in Para 4(viii) Supra which are squarely applicable in this case of the appellant.

14.In view of the above submission, the order passed by the hierarchy below suffers form inherent legal deficiency/infirmity and are therefore declared void ab-initio and hereby set aside and appeal is allowed with the direction to the Collector of Customs, Export to issue orders for the processing/sanctioning of the appellant claims, which has been already considerably delayed due to unwarranted litigation as observed and deliberated by me in the order.

RR/64/Tax(Trib.)Appeal accepted.