M.N. TRADING COMPANY, LAHORE VS DIRECTOR GENERAL OF VALUATION, CUSTOM HOUSE, KARACHI, 2016 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 876 (2015)

2016 P T D (Trib.) 876

[Customs Appellate Tribunal]

Before Adnan Ahmed, Member (Judicial-II)

M.N. TRADING COMPANY, LAHORE

Versus

DIRECTOR GENERAL OF VALUATION, CUSTOM HOUSE, KARACHI and 2 others

Cust. Appeal No. K-1605 of 2014, decided on 25/02/2015.

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

----Ss. 19A & 33---Exemption and refund claim---Appellant/Importer submitted pay order as security deposit---Due to non-determination of finalization of value of goods within prescribed period by Department, appellant's declared value stood final---Appellant's request for return of pay order was termed as an application of refund filed under S. 33 of Customs Act, 1969, by Department and asked appellant to prove non-passing of incidence of duty/taxes as per expression of S. 19A and S. 33(1) of Customs Act, 1969---Validity---Held, that according to S. 33 of Customs Act, 1969, refund application had to be filed for duty/taxes paid by inadvertence, error or misconstruction---In order to claim refund, it is upon the appellant to prove that amount of duty/taxes levied had not been passed to the end consumer---If an adjustment of Sales Tax under S. 7 of Sales Tax Act, 1990 had been obtained, appellant would not be entitled for refund---Conditions laid down in S.33, Customs Act, 1969 were not applicable and refund filed was not governed by S. 33 of the Act with exception of S. 33(3)---Request/ application of appellant to return pay order did not in any manner fall within the ambit of a refund application under S. 33 of Customs Act, 1969.

Case Law referred.

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

----Ss. 19A & 81---Provisional assessment---Refund claim---Scope---Section 81 of Customs Act, 1969 had no nexus with S. 19A of the Customs Act, 1969---Under S.81, importer had asked for return of his pay order/back guarantee deposited as security---Importer was not supposed to file refund claim for paid amount of duty/taxes at the time of provisional determination of value by Department and if Department had encashed such security for meeting revenue target in absence of determination of value within stipulated period mentioned in S. 81(2) of the Customs Act, 1969, Department was duty bound to refund that amount without calling for an application for refund.

Case Law Referred.

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

----Ss. 80 & 81---Customs Rules, 2001, R.438---Provisional assessment---Finality, attaining of---Scope---Amount deposited as security could not be termed as paid duty/taxes while determining the value provisionally under S. 81 of Customs Act, 1969---Such an act will make S. 81 rendundant and the assessment made at time of clearance of goods under S. 81 would be deemed to be an assessment under S. 80 and R. 438 of Customs Rules, 2001---Such an interpretation denied the return of pay order to importer on pretext of S. 19A, which is against the intention of Legislature and expression of S. 81.

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

----S. 81---Final assessment---Encashment of bank guarantee by Department---Appellant deposited pay order with Department as Security subject to its encashment or return upon determination of final value within the stipulated period given in S. 81(2) of Customs Act, 1969---Encashment of such security by the Department was an usurpation of an "Amanah" which was not permitted under Customs Act, 1969---Such an act was in direct conflict with the Constitution, Islamic Moral standards and Tenets of Islam---Public servant held the amount of security deposit as an "Amanah"---Legislature had set a time limit of six months as provided in S. 81(2) of Customs Act, 1969, to ensure timely determination of value and if determination is not made within time, amount deposited as "Amanah" become refundable/returnable without any let, hitch and hindrance---Lapse on part of government servant cannot be attributed to a tax payer/importer under S.81 of Customs Act, 1969.

Case Law Referred.

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

----Ss. 193 & 193-A(3)---Order-in-appeal, passing of---Delay of 680 days---Appellant filed appeal before Department on 04-07-2012---According to S. 193A(2) of Customs Act, 1969, an order had to be passed by Department within 120 days from the date of filing of an appeal i.e. on or before 01-11-2012 (in the present case) or within further extended period of 60 days with reasons to be recorded for extension in writing---Department passed order after 800 days from the date of filing of an appeal---Effect---Held, no extension was accorded by Department prior to expiry of initial period of 120 days as per contents of order---Order passed by Department, in the present case, was barred by time, without jurisdiction and could not be enforced under law---Appeal was allowed accordingly.

Case Law Referred.

Nadeem Ahmed Mirza (Consultant), Obayd Mirza (Advocate) and Mirza Muhammad Abeer Nadeem for Appellants.

Ashfaq Ahmed and Stephen Alison - Principal Appraisers for Respondent No.1.

Amir Hussain for Respondent No.2.

Dates of hearing: 17th and 23rd December, 2014.

ORDER

ADNAN AHMED, MEMBER (JUDICIAL-II).---The appeal, filed by the appellant, is directed against Order-in-Appeal No. 9209/2014 dated 12.09.2014 passed by Collector of Customs (Appeals) (here-in-after to be referred as respondent No. 3) maintaining the Order-in-Original No. 132/2013 dated 23.01.2012 passed by the Deputy Collector of Customs (Adjudication-II), MCC of PaCCS, Custom House, Karachi (here-in-after to be referred as respondent No. 2).

2.Briefly, facts of the case as stated in the impugned order by the respondent No. 2 are that the appellant imported a consignment consisted of 03 items i.e. (i) Hair Accessories 15040 kgs of PCT heading 9615.9090 @ US$. 0.6123/kg (ii) Plastic/fabric Fashion accessories 1200 kgs of PCT Heading 3926.4090 @ US$. 0.5103/kg and (iii) Artificial Jewellery of assorted colors and design (983 Kgs) of PCT heading 7117.9000 @ US$. 0.5613/kg. the appellant filed their GD bearing I-HC-2030684-07012012, and after making payment of duty and taxes as per their self assessment in terms of Section 79(1) of the Act and sought release of same as per their declaration. The first two items were assessed @ US$. 0.80/kg as per data of Valuation, maintained in terms of section 25(13)(a) of the Act and item No. 03 i.e. artificial jewellery was assessed at 15.25 kg, in terms of Sections 80(3) and 25A(2) of the Act. The appellant shown their disagreement on the Valuation of item No.(iii) Artificial Jewellery and requested for assessment @ US$. 2.50 kg or to assess the goods provisionally under section 81(1) of the Act. Pending final decision by the Director (Valuation). Their request was acceded to and item No. (iii) of the GD i.e. Artificial Jewellery was assessed provisionally by securing the amount of Rs. 628,993.00, i.e. the difference of duty and taxes between the declared value i.e. @ US$. 0.563/kg of Artificial and the assessed value @ US$. 15.25/kg (Valuation Ruling No. 334/2011 dated 09.06.2011) vide pay order No. CM-0007609 dated 18.01.2012 and an indemnity bond was also submitted by the appellant with the undertaking that they will make payment of differential amount of duty and taxes immediately on demand from the Collector of Customs. Therefore the appellant paid Rs. 15496/- against item No. (iii) of GD i.e. artificial Jewellery was as per Valuation Ruling @ US$. 15.25 kgs and payable amount was Rs. 644,430.00. Subsequently, in compliance to the appellate Tribunal's order dated 30.12.2011 the director Valuation had issued a revised Valuation Ruling No. 423 dated 01.02.2012 read with its amendment dated 16.02.2012 and re-determined the values of different specification of Artificial Jewellery. Subsequently after issuance of aforesaid Ruling the appellant vide their letter dated 09.03.2012 approached the Collectorate to finalized the assessment @ US$. 3.75/kg and also requested to return the pay order/indemnity bond. After one month a hand written letter was received by the erstwhile Deputy Collector (PaCCS) Gr. III) on 09.04.2012 with different signatures and it was again requested that the assessment be finalized @ US$. 3.75/kg the respondent No. 2 regretted the appellant request and passed order in original dated 12.06.2012 the operative para of the order read as under:--

"I have gone through the record of the case and the submissions made by the importer/applicant and his counsel. The learned counsel's only arguments is that the provision of section 19-A of the Act, is not applicable on their provisional assessment case. In reply to this arguments the attention of the counsel was invited on the law settle by the Honourable High Court of Sindh in such identical situation, vide reported judgment (2011 PTD 1594) in the case of Messrs Orient Colour Lab (Pvt.) Ltd., v. The Director General, Custom Valuation, Karachi and 3 others wherein following has been held:--

"Clearance of such goods on furnishing of Bank guarantee for disputed customs duties and taxes---Return of Bank guarantee, prayer for validity---Word "paid" used in S.19-A of Customs Act, 1969 would include deferred payment by furnishing Bank guarantee---Provisions of Ss. 19A and 81 of Customs Act were not in conflict with each other---Failure of department to fulfill formalities prescribed under. S. 81 of Customs Act, 1969 would not entitled taxpayer to be assessed at declared value, if during pendency of matter before department or appellate court, he had passed on burden of customs duty to end consumer----statement of cost of such goods submitted in court by importer showed computation of total cost thereof by making addition of custom duty sales tax and income tax deducted at source and landing cost and advance cost estimated at 10%---Sale price of such goods finding mention in such statement when compared total cost thereof including customs duties and taxes then rate of profit was found to be ranging between 35% to 95%---Sale price of such price without inclusion of duties and taxes would range from 50% to more than 80%---Such statement and comparison would show that importer had passed on burden of customs duties and taxes to end consumer---importer had not discharged onus of proving that he had not passed on burden of custom duty and taxes to end consumer-----High Court dismissed constitutional petition in circumstances."

In view of the above judgment of the Honourable High Court it is clear that the provision of Section 19A of the Act, is also applicable on the cases where security has been obtained at the time of provisional assessment, therefore the learned counsel's arguments in this regard is incorrect and they are also bound to discharged their responsibility in terms of section 19A of the Act.

Secondly, without prejudice to above, the applicant/importer has also failed to substantiate as to how their imported Artificial Jewellery falls within the category (specification) of Sr. No. 1 of the Table of the revised Valuation Ruling. The applicant/ importer's declaration was "Artificial Jewellery Assorted colours and design quantity 980 gross/kgs" whereas the goods found at the time of examination was "Artificial Jewellery comprising of Rings, Neckless Sets, Tops and Earings of Assorted Designs, colours and Brands quantity 1500 kgs" it is pertinent to mention here that prior to issuance of Valuation Ruling amendment dated 16.02.2012 the detailed specification of Artificial Jewellery was not required for assessment purposes because of the fact that at that point of time there was no value difference on the point of specification the examination report clearly showing the difference between the declaration and physical examination and the words "Rings", "Tops", "neckless" "Colours", etc and the difference of weight suggests and give credence to the fact that the imported jewellery was of the specification mentioned in Sr. No. 3 of Table to the Valuation Ruling dated 16.02.2012.

In view of the position elucidated above and considering the Honourable High Court of Sindh's reported judgment I am convinced that there is neither any question of return of security nor any question to finalize the assessment @ US$. 3.75/kg for the imported artificial Jewellery. I therefore, hereby order for finalization of assessment of item No. 3 of the GD i.e. Artificial Jewellery @ US$. 15.25/kg. considering the provisions of Section 81(3) of the Act, the Deputy Collector (PaCCS Security) is advised to adjust the security accordingly.

3.The order was challenged before Respondent No.3 by the appellant vide Appeal No. 4081/2012 dated 04.07.2012, who also vide his order dated 12.09.2014 rejected the appeal by observing in para 5 that:--

"I have examined the record of the case the appellants have principally contended that Valuation of goods assessed provisionally was not finalized within the stipulated time period and that the Valuation Ruling 423 dated 01.02.2012 has prospective application and cannot be applied retrospectively in their case. It is a matter of record that the importer had himself requested to assess the goods provisionally under section 81 of Act, pending final decision by the Director (Valuation). Since, importers request was acceded, therefore it should be deemed to be an adjournment by the importer and thus time taken on these proceedings should be excluded from the computation of period required for finalization under section 81(2) of the Act. The adjudicating officer has rightly applied the value at Sr. No. 3 of the Valuation Ruling 423/2012, as the description in the Ruling matches with the examination report of the imported goods. The question of prospective application does not apply as the proceedings were made provisionally for want of fresh Valuation Ruling at the request of the importer. The appeal is devoid of merit and therefore rejected."

4.The appellant Messrs M.N. Trading Company Lahore has challenged the order of the respondent No. 3 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:--

a.That neither provisional or final assessment under the provision of Section 81 or 80 of the Customs Act, 1969 can be made by the respondent No. 2 on the basis of Valuation Ruling No. 334/2011 dated 09.06.2011 on the date of provisional assessment i.e. 18.06.2011 or final assessment as the Ruling in question stood barred by limitation as per the expression of Rule 107(a) of the Customs Rules, 2001 and held by the Hon'ble Customs Tribunal in reported judgment 2011 PTD (Trib.) 2480 Messrs Malik Vetro and 25 others v. Collector of Customs (Appeals) and by the Hon'ble High Court of Sindh in C.P. No. 2673 of 2009 reported at PTCL 2014 CL 537 Messrs Sadia Traders, Karachi and 6 others v. FOP and 2013 PTD 825 Faco Trading and 45 others v. Member Customs FBR, 2014 PTD 176 Goodwill Traders, Karachi v. FOP.

b.That it is also imperative for the appellant to add further that despite of the fact that the Valuation Ruling No. 334/2011 dated 09.06.2011 was issued under Section 25A of the Customs Act, 1969 by the Directorate General of Valuation was declared ultra vires to the provision of Section 25 by the Hon'ble High Court of Sindh in reported judgment PTCL 2014 CL 537 and 2014 PTD 176 and simultaneously by the Hon'ble Customs Appellate Tribunal vide order dated 22.12.2011 in Customs Appeal No. K-915-919 of 2011, the same cannot be taken for finalizing the assessment under section 80 of the Customs Act, 1969. Contrary the same was applied in the case of appellant, rendering the order passed by the respondent No. 2 finalizing the assessment of the appellant as void and ab-initio and as such of no legal effect.

c.That the procedure for finalizing assessment of the goods released provisionally is given in subsection (3) of Section 81 of the Customs Act, 1969 read with direction contained in para 66 of CGO 12/2002 dated 15.06.2002 i.e. after determination of value by the respondent No. 1 and receipt of that by the respondent No. 2. It has been made mandatory for the respondent No. 2 to adhere the procedure devised in para 66 prior to finalization of assessment order. For ease sub paras (2) & (3) of para 66 is reproduced here-in-below:--

(i)All cases of provisional assessment shall be finalized within a period of four months. Where assessment cannot be finalized within four months, owing to exceptional circumstances beyond the control of Custom Houses or Valuation Departments, such period shall be extended by the Collectors of Customs or the Controller of Valuation, as the case may be, by a further period of two months recording reasoning in writing. Such extension shall also be intimated to the importers.

(ii)Final assessment order shall be speaking one and shall also incorporate all the details and evidence on record on the basis of which value had been fixed or assessment has not finalized. This is necessary to enable the importer to file appeal with the appellate authority if he is not satisfied with the assessment order so made.

(iii)Where on the basis of final assessment any refund is due to the importer, the final assessment order shall also contain order for refund of the said amount and the importers shall not be required to make fresh requests for the refund.

(iv)Keeping in view the time constraint indicated above, refundable amount shall be paid expeditiously.

(3)Collectors/Controller of Valuation shall ensure that these instructions are complied with in letter and spirit.

d.That as directed by the FBR in sub-para (5) of para 44 of the CGO 12/2002 dated 15.06.2002 the respondent No. 1 was duty bound to determined the value of the appellant goods accordingly, which was not done, resulting into not determination of value till the passing of the order by respondent No. 2 and even to this date. In the absence of that it was mandatory for the respondent No. 2 to determine the value of the appellant goods exclusively under the provision of Section 25 of the Customs Act, 1969 without any influence of any Valuation Ruling, whether it was stale or under any fresh Ruling or letter No. I/01/2012V/5660 dated 27.03.2012 issued by Deputy Director, Directorate General of Valuation issued subsequent to the clearance of appellant goods as stale Valuation Ruling cannot be applied whereas fresh Ruling has to take effect from the date of its issue not retrospectively as per settled proposition of law of Section 24 of General Clauses Act, 1897 as held by Superior Judicial fora in reported judgments 2673 of 2009 Messrs Sadia Traders, Karachi and 6 others v. FOP, Sales Tax General Order No.6/2003, PLD 1974 SC 180, 2004 PTD 2524, S.T. Appeal No.K-271/2008, 2009 PTD 1, 2009 PTD 16, 2009 PTD 1392, 2009 PTD 1112, 2010 PTD (Trib.) 1675, 2010 PTD (Trib.) 2406, 2010 PTD (Trib.) 1631 and 2010 PTD (Trib.) 1636.

e.As discussed above, there exist no Valuation advise of the respondent No. 1 of the appellant imported goods no cause or reason was available with the respondent No. 2 to finalize the assessment of appellant goods under the provision of Section 80 of the Customs Act, 1969 in the absence of determination of value by either respondents Nos. 1 and 2 and due to the said fact order so passed is silent rendering it in defiance of para 66 attracting section 223 of the Customs Act, 1969 and even pre- mature and nullity to law and as such fails the test of judicial scrutiny. Hence void and ab-inito.

f.That it is erroneous on the part of the respondent No. 2 to consider the case of the appellant of return of pay order after cancelation as refund falling under Section 33 of the Customs Act, 1969 as the amount deposited as security deposit for keeping as "Amanah" at the time of clearance provisionally under section 81 of the Customs Act, 1969 has to be returned after cancelation in case of non timely determination of value by the customs or has to refund that at their own as directed in clause (iii) of sub-para (2) of para 66 of CGO 12/2002, without submission of any refund application as such refund are not governed under the provision of Section 33 of the Customs Act, 1969 which only encompass refunds of paid duty and taxes by "inadvertent or error or misconstruction". The amount deposited as security under the proviso of subsection (1) of Section 81 of the Customs Act, 1969, cannot be considered through any stretch of imagination as an amount paid due to inadvertence or error or misconstruction.

g.That simultaneously applying 19-A of the Customs Act, 1969 on the case of appellant by the respondent No. 2 is erroneous as it is based on mis-construction rather inapt interpretation of sections 19-A and 81 of the Customs Act, 1969. The section 19-A express with clarity that "every person who has paid the custom duty and other levies on any good under this Act shall, unless contrary is proved by him, deem to have passed on full incidence of such custom duty and other levies to the buyer as a part of the such goods." The appellant paid an amount of Rs. 442,448.00 at the time of clearance under Section 81 of the Customs Act, 1969 as per the explanation given in footnote of section 81 of the Customs Act, 1969, which he did passed to the consumer, but not Rs. 628,993.00 submitted as security by him for meeting the condition given in proviso of subsection (1) of Section 81 of the Customs Act, 1969 and the said amount cannot be termed as the amount paid because in that case the proviso of Section 81 of the Customs Act, 1969 shall become redundant instead non existent and assessment made under section 81 of the Customs Act, 1969 deems to be an assessment under the provision of Section 80 of the Customs Act, 1969.

h.That in case the legislature were of the opinion as of respondent No. 2, they would had inserted a proviso in section 81 of the Customs Act, 1969 as had been done in Section 33, wherein proviso to subsection (1) was added through Finance Act, 2009. The opinion of the appellant stood vindicated from the judgments of the Hon'ble High Court of Pakistan reported as 2005 PTD 1968 Trade International v. Deputy Collector of Customs, 2007 PTD 2119 S. Fazal Ellahi and Sons v. Deputy Collector of Customs and others, 2008 PTD 1587 Clover Pakistan Ltd. v. FOP and others, 2010 PTD 900 Collector of Customs, MCC of Appraisement v. Pak Arab Refinery, 2011 PTD 235 Sus Motors (Pvt.) Ltd. v. FOP, 2011 PTD 2851 Messrs Crescent Art Fabric v. Assistant Collector and Customs and 4 others and 2011 PTD (Trib.) 2856 Trend International v. Deputy Collector, Dry Port, Multan and 4 others, 2006 PTD 1270 Dewaan Farooq Motors Ltd., Karachi v. Customs Excise and Sales Tax Appellate Tribunal, 2005 PTD 2116 Collector of Customs (Appraisement) v. Auto Mobile Corporation of Pakistan and 2004 PTD 795 Messrs Farooq Woolen Mills, Gujranwala v. Collector of Customs, Dry Port, Sambrial and others, 2012 PTD 980 Dawlance Electronic (Pvt.) Ltd. v. Collector of Customs, Karachi.

i.That in fact no determination of value was ever made by the respondent No. 1 in the case of appellant to this date. Resultant, the declared value of the appellant goods stood final under Section 81(4) by virtue of lapse of period given in subsection (2) of section 81 of the Customs Act, 1969 and the order passed by respondent No. 2 is of no legal effect, hence ab inito void and stood validated from the judgments of the Hon'ble High Court of Pakistan reported as 2005 PTD 1968 Trade International v. Deputy Collector of Customs, 2007 PTD 2119 S. Fazal Ellahi and Sons v. Deputy Collector of Customs and others, 2008 PTD 1587 Clover Pakistan Ltd. v. FOP and others, 2010 PTD 900 Collector of Customs, MCC of Appraisement v. Pak Arab Refinery, 2011 PTD 235 Sus Motors (Pvt.) Ltd. v. FOP, 2011 PTD 2851 Messrs Crescent Art Fabric v. Assistant Collector and Customs and 4 others and 2011 PTD (Trib.) 2856 Trend International v. Deputy Collector, Dry Port, Multan and 4 others, 2006 PTD 1270 Dewaan Farooq Motors Ltd., Karachi v. Customs Excise and Sales Tax Appellate Tribunal, 2005 PTD 2116 Collector of Customs (Appraisement) v. Auto Mobile Corporation of Pakistan 2004 PTD 795 and Messrs Farooq Woollen Mills, Gujranwala v. Collector of Customs, Dry Port, Sambrial and others, 2012 PTD 980 Dawlance Electronic (Pvt.) Ltd. v. Collector of Customs, Karachi.

j.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 04.07.2012 and the order should have been passed by the respondent No. 2 on or before 01.11.2012. To the contrary he passed order on 12.09.2014 after lapse of 680 days and to cover up the delay he took the plea that the appeal filed by the appellant before him is time barred, irrespective of the fact that the same is without substance as no objection was raised by the office of respondent No. 3 at the time of filing of appeal nor by the respondent No. 1 representative during the course of hearing before the respondents Nos. 1 and 2, resultant, the appeal is deems to be filed within time and has to be decided on merit, rejecting the appeal on the said pretext is without any substance and nullity to law. Hence hold no grounds instead renders the order so passed as well as assessment order passed by respondent without power/jurisdiction, hence void, ab-initio and are not enforceable under law as held in the reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Dir 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.

k.That irrespective of referred in above gross illegalities committed by respondents it is of paramount importance to state that the observation made by the respondent No. 3 in the order that the appellant himself asked for the completion of his good declaration provisionally in terms of Section 81 of the Customs Act, 1969, and this act of appellant is deems to be seeking adjournment which has to be deducted from the time expressed in subsection (2) of section 81. Regretfully the respondent No. 3 while forming the said opinion lost sight of the fact that time consumed prior to completion of assessment provisionally is not included in the period given in subsection (2) of 81 of the Act instead the time for determination of value starts from the date of provisional assessment, which in the case of the appellant is 18.01.2012 and the subject GD was online transferred to respondent No.1, which issued hearing notice to the appellant on 21.02.2012 and it was upon him to determine the value within 06 months, which was not done to this date, rendering the observation of respondent No. 3 devoid from the fact and as such of no legal effect , hence void and ab-initio and so the order passed by him.

l.The order passed by the respondents No. 3 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 S.24-A of the General Clauses Act, 1897 and this stood validated from the fact that no rebuttal on the grounds of appeal, rebuttal/additional arguments and order of the Tribunal in Appeal No. K-4081/2012 has been given instead on personal absurd opinion contrary to law and that too also is not containing substantial reasons and did not shows it was passed on objective consideration. Such type of orders are deems 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 goods 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.

m.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 of the Customs Act, 1969 have been filed by any of the respondent within the 30 days nor till the date of hearing. Instead representatives of the respondent No. 1 submitted comments signed by Dr. Muhammad Shahzad Assistant Director on the facts and grounds, since the facts are admitted comments on grounds are reproduced here-in-below:--

Para - (a) Denied . It is submitted that the referred GD was assessed provisionally under section 81 of the Customs Act, 1969 on 18.01.2012 and finalized by this Directorate General on 27.03.2012, which is well within time period as envisaged under section 81(2) of the Customs Act, 1969.

Para - (b) Denied . In this regard, it is submitted that this Directorate General finalized the assessment in the light of amendment dated 16.02.2012.

Para - (c) Denied . Accordingly to section 81(2) of the Customs Act, 1969 the provisional Assessment shall be determined within 06 months of the date of provisional determination and the assessment was finalized by this Directorate General on 27.03.2012, which is well within time period.

Para (d) Denied.... As above para C.

Para - (e), (f), (g) & (h) : Need no comments being related to respondent No. 2.

Para (i) : Denied . It is submitted that the case was under process before the respondent No.1 who issued Valuation Ruling No. 423/01.02.2012 for assessment of under reference goods. As request for provisional assessment was made by the importer themselves, therefore the time spent on proceeding and issuance of Valuation Ruling can be taken as commutation period required for finalization under section 81(2) of the Customs Act, 1969.

Para - (j) Needs no comments being related to Respondent No.2.

Para - (k) the contents of para (k)(i) to (xi) are related to respondent No. 2. It is stated that the appellant has made a commentary on the point of payment of dues deposited with respondent No. 2. It is mentioned that procedure for assessment of goods under section 81 carries a requirement for provisional deposit of customs dues, which is subjected to determination of final assessment. Therefore, such process of a finalization is wholly fair and justified and the respondent has completed the assessment wit the vested provisions of law.

Paras (I), (m) & (n). Need no comments being related to respondent No. 2.

Para (o) Need no comments being related to further grounds at the time of hearing.

6.That similarly, no cross objection subsection (4) of Section 194A of the Customs Act, 1969 has been submitted by the respondent No. 2 within the period stipulated therein nor todate. Even comments have not been submitted instead the representative of the respondent No. 2 supported the order passed by the respondent being correct in fact and law.

7.Rival parties heard case record perused.

8.The case pertains to provisional determination of value of the imported consignment under section 81 of the Customs Act, 1969, verbatim of which is:--

81. Provisional determination of liability.---(1) Where it is not possible for an officer of Customs during the checking of the goods declaration to satisfy himself of the correctness of the assessment of the goods made under section 79, for reasons that the goods require chemical or other test or a further inquiry, an officer, not below the rank of Assistant Collector of Customs, may order that the duty, taxes and other charges payable on such goods, be determined provisionally:

Provided that the importer, save in the case of goods entered for warehousing, pays such additional amount on the basis of provisional assessment or furnishes bank guarantee [or pay order] or a post-dated cheque of a scheduled bank along with an indemnity bond for the payment thereof as the said officer deems sufficient to meet the likely differential between the final determination of duty over the amount determined provisionally:

Provided further that there shall be no provisional assessment under this section if no differential amount of duty and tax is paid or secured against bank guarantee [or pay order] or post-dated cheque.

[(2) Where any goods are allowed to be cleared or delivered on the basis of such provisional determination, the amount of duty, taxes and charges correctly payable on those goods shall be determined within six months of the date of provisional determination:

Provided that the Collector of Customs or, as the case may be, Director of Valuation, may in circumstances of exceptional nature and after recording such circumstances, extend the period for final determination which shall in no case exceed ninety days.

Provided further that any period, during which the proceedings are adjourned on account of a stay order or for want of clarification from the Board or the time taken through adjournment by the importer, shall be excluded for the computation of aforesaid periods

(3) On completion of final determination, the amount already paid or guaranteed shall be adjusted against the amount payable on the basis of final determination, and the difference between the two amounts shall be paid forthwith to or by the importer, as the case may be.

(4) If the final determination is not made with the period specified in subsection (2), the provisional determination shall, in the absence of any new evidence, be deemed to be the final determination.

(5) On completion of final determination under subsection (3) or (4), the appropriate officer shall issue an order for adjustment, refund or recovery of amount determined, as the case may be.

Explanation.---Provisional assessment means the amount of duties and taxes paid or secured against bank guarantee or post-dated cheques.

Upon bare reading of the section 81 of the Customs Act, 1969, it is abundantly clear that the commencement of period for determination of value starts from the date of determination of provisional assessment and the correct determination of value has to be made either by Officer of Customs or Directorate General of Valuation within 06 months and if the value could had not been determined within 06 months, the Collector or Director as the case may be can extend the period further but not beyond 90 days as expressed in 1st proviso of subsection (2) of Section 81 of the Customs Act, 1969 subject to availability of exceptional circumstances and recording of those after serving a notice to the importer as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881 Khalid Mahmood v. Collector of Customs. In the case in hand the provisional determination of value was made on 18.01.2012 and the case was transmitted online to the Officials of respondent No. 1 as enunciated in section 81 and Rule 439(a) of Sub-Chapter (III) of Chapter XXI of Customs Rules, 2001 and in consonance with the direction given by the Board in sub-para (5) of para 44 of CGO 12/2002 dated 15.06.2002 for correct determination of value on or before 17.07.2012 and transmission of Valuation advice to the extent of appellant goods on or before 17.07.2012 upon receipt of provisional assessment order and assessment note, the Officials of respondent No. 1 starts the exercise of determination of value under section 25 of the Customs Act, 1969 and Valuation rules embodied in Chapter IX of Customs Rules, 2001, who after determining the value with the application of Section 25 in sequential manner transmit the advice so prepared to the respondent No. 2 for passing of assessment order under Sections 80 and 81(3) of the Customs Act, 1969 and Rule 440 of Customs Rules, 2001. In accordance with the direction of the Board given in para 66 of CGO 12/2002 dated 15.06.2002.

9.In this case upon receipt of Goods Declaration and connected assessment order and its notes the Officials of respondent No. 1 transmitted online view messages dated 21.02.2012 for submission of documents in support of their declared value in addition to the hearing fixed for 09.03.2012. On which date the appellant representative submitted the requisite documents and attended the hearing, wherein he deliberated upon with the Officials of respondent No. 1 and thereafter hearing stood concluded and the Officials of respondent No. 1 informed appellant representative that the Valuation advice after examination of the documents and conduction of exercise in accordance with the provision of Section 25 of the Customs Act, 1969 and Chapter IX of Customs Rules, 2001, shall be transmitted to respondent No. 2 for passing of assessment order for the confirmation of finalization of value. No determination of value of the appellant goods had been made by the Officials of respondent No. 1 on or before 17.07.2012 or to date. Instead reliance has been placed on the letter dated 27.03.2012 of the Deputy Director, Directorate General of Valuation for determination of value of the consignments cleared under the provision of section 81 of the Customs Act, 1969 through the regime of "One Customs" and this stood validated from its subject which read as "Manual submission of provisional assessment cases under section 81 of the Customs Act, 1969---Artificial Jewellery imported vide GD I-HC-2030684-07012012. In the said letter it has been categorically admitted that Valuation Ruling No. 334 dated 09.10.2011 have been set aside by the Appellate Tribunal and a fresh Ruling No. 423 dated 01.02.2012 have been issued but that also felt short of determination of various type of artificial jewellery which was notified through an amendment dated 16.02.2012, hence in the cases of Section 81, final determination of value be made in the light of the value given below to para 2 to the letter.

10.I fail to gather the rationale in mentioning the GD No. of the appellant in the said letter when it was meant for the cases of one customs regime based on manual processing, examination and assessment instead of web based regime (PaCCS). The case of appellant is not of manual regime instead of online web based regime. From further examination of the letter it has also been observed that no value of the appellant imported goods namely artificial jewellery comprising of rings, necklace set tops and earrings of assorted designs, colors and brand of China origin has been given resultant, it is not at all applicable on the goods of the appellant. Even otherwise, it is settled proposition of law that the application of Valuation Ruling and administrative Order run prospectively not retrospectively, therefore the amendment dated 16.02.2012 to the Valuation Ruling No. 423 dated 01.02.2012 and letter 27.03.2012 are not applicable on the appellant goods, hence no final determination of value can be made by the authority under subsection (3) of Section 81 of the Customs Act, 1969. Inspite of availability of the said vital fact mentioning of appellant GD in the letter by the Deputy Director is fallacious beside mala fide and as such without lawful authority, as this was done to cover up the negligence and inefficiency of the Officials of respondent No. 1, who failed to determine the value of the appellant goods in terms of sub-para (5) of para 44 of CGO 12/2002 with the application of Section 25 of the Customs Act, 1969 in sequential manner on or before 17.07.2012. The opinion of respondent No. 3 in the order that the period consumed for resolving the dispute of assessment i.e. from the date of Goods Declaration till the date of completion of provisional assessment deems to be adjournment is without any substance and being in derogation of subsection (2) of section 81 of the Customs Act, 1969. The said time is not at all included in the period of 06 months. In fact the time starts running from the date of provisional determination of value by the Officials of respondent No. 2 and final determination of the value of the goods should had been made by the Officials of respondent No. 1 between 18.01.2012 to 17.07.2012 and for that they issued a hearing notice dated 21.02.2012 to the appellant, but failed to do so as no online Valuation advice was transmitted to respondent No. 2 by the Officials of respondent No. 1 for passing of assessment order under sections 80, 81(3) of the Customs Act, 1969 and Rule 440 of Customs Rules, 2001 within the period of 06 months. In regards to the stance of representative of respondent No. 1 that they had determined the value within time, the Tribunal asked him to place on record the copy of transmitted advice, which must have kept in record in adherence of the essence and spirit of Section 155G of Customs Act, 1969, the answer was in negative and reason given also amazed me that since the software of PaCCS has been off loaded, they are unable to produce that. This type of adherence of the provision of the Act is intolerable and cannot be condoned under any circumstances as this will render the Section 155G of the Customs Act, 1969 redundant as against intention and will of the legislature. The importer/appellant cannot be made to suffer for the lapse on the part of Officials of respondent No. 1, beside endorsement of their unlawful act tantamount to awarding premium, to which is neither just nor permitted under law.

11.That since no value has been determined by the Officials of respondent No. 1 on or before 17.07.2012, the declared value by the appellant in the GD stood final and it was mandated upon the Officials of respondent No. 2 to return the pay order submitted as security deposit after cancellation to the appellant, instead of adoption of unlawful ways and means nullity to the spirit of subsection (4) of Section 81 of the Customs Act, 1969 and the law laid down by the Superior Judicial Fora relied by the appellant and reproduced in ground 4(i) & (j) supra. In alike case the Collector of Customs, PMBQ, Karachi filed a CPLA No. 728-K of 2010 with the Hon'ble Supreme Court of Pakistan against the judgment of the Hon'ble High Court of Sindh dated 01.10.2010 in the Special Customs Appeal No. 33/2010 filed by Messrs International Industries Ltd., wherein the Hon'ble High Court of Sindh held that "when no final assessment is made in terms of subsection (2) to Section 81 of the Customs Act, 1969 the declared value stood final". The Hon'ble Supreme Court of Pakistan refused leave to appeal and dismissed the petition vide order dated 08.08.2011 while holding in paras 2 to 4 that:--

"2- As it appears from record, short controversy involved in the said petition was as regards the interpretation and applicability of subsection (4) to section 81 of Customs Act, 1969 which read as follows:--

"81(4) if the final determination is not made within the period specified in subsection (2), the provisional determination shall, in the absence of any new evidence, be deemed to be the final determination."

3- In this regard, learned Division Bench, while passing its impugned order had taken into consideration two earlier judgments of the High Court in the case of Hassan Trading Company v. CBR (2004 PTD 1979) and Collector of Customs Appraisement v. Automobile Corporation of Pakistan (2005 PTD 2116) and affirmed its earlier view, which lays that when no final assessment is made in terms of subsection (2) to section 81 of the Customs Act, 1969 within the stipulated period, the provisional assessment becomes final on declared value of goods by the assessee.

4. From the plain reading of section 81(1), (2), (3) and (4) of the Customs Act, 1969, this position is quite clear and also so rightly recorded in the above cited two judgments of the High Court."

12.The case of the appellant was simple that his pay order submitted as security deposit should be returned to him after cancellation as his declared value stood final due to lapse of non determination of finalization of value of his goods within the prescribed period by the Officials of respondent No. 1. The respondent No. 2 adopted a novel method based on complete malice as evident from the fact that she termed the request of the appellant as an application of refund filed under Section 33 of the Customs Act, 1969 and therefore asked the appellant to prove the non passing of incidence of duty and taxes as per the expression of Section 19A and proviso of Section 33(1) of the Customs Act, 1969 completely in derogation of Section 33 under which a refund application can be filed for the duty and taxes paid by inadvertence, error or mis-construction and for claiming refund for the said amount, it has been made mandated upon the claimant to prove that the amount of duty and taxes levied and paid under the Act has not been passed to the end consumer and the rationale behind this is to confirm that as to whether the claimant has obtained adjustment of the Sales Tax under Section 7 of the Sales Tax Act, 1990 in his monthly Sales Tax Return filed under section 26 ibid. In case the claimant had obtained adjustment, he is not entitled for the refund because it is deemed that he has passed the incident of duty and taxes to the end consumer and in that way he received back duty and taxes paid by him at import stage and by filing application for refund under Section 33, he intend to reap the benefit twice, which is not permitted under law because it falls within the ambit of undue enrichment. Vice versa if the claimant has not claimed the adjustment in the Sales Tax Return, he is entitled for refund filed under Section 33 of the Customs Act, 1969 for the paid amount of duty and taxes due to inadvertence, error, omission or misconstruction. Any other refund, which a claimant files on the basis of dispute, resolved subsequently by the Board or by the Authority or Superior Judicial Fora, the condition laid down in Section 33 of the Customs Act, 1969 are not applicable and neither the refund so filed is governed by the provision of Section 33 of the Customs Act, 1969 with the exception of given in subsection (3) ibid and the subsection (2) has been craved and inserted specifically for the Officials of Customs for refunding the amount of en-cashed Pay Orders or Post Dated Cheques or Bank Guarantee without any unlawful authority only for meeting the revenue targets. My this opinion is in consonance with the law laid down given by the Superior Judicial Fora in umpteenth reported judgment. The request/application of the appellant to respondent No. 2 to return the pay order after cancellation does not in any manner fall within the ambit of a refund application under section 33 of the Customs Act, 1969 and the reliance made upon the same by respondent No. 2 is completely out of context and legal effect, hence without lawful authority.

13.Similarly, putting reliance on section 19A of the Customs Act, 1969 by the respondent No. 2 in the case of the appellant pertaining to section 81 of the Customs Act, 1969 is misplaced as section 19A debar claiming of refund of paid duty and taxes as evident from its expression, which read as:--

"Every person who has paid the custom duty and other levies on any good under this Act shall, unless contrary is proved by him, deem to have passed on full incidence of such custom duty and other levies to the buyer as a part of the price of such goods."

14.The language of section 19A without any ambiguity says that "every person who had paid the duty and taxes on any goods levied under the Act has to prove that he has not passed on the full incidence of such custom duties and levies to the buyer as a part of the such price goods", in support of his filed refund claim under section 33 of the Customs Act, 1969. Although the said point has been laid to rest in para 13 supra but to further crystallize, it is of vital importance to add that the cases pertaining to section 81 has no nexus with the provision of Section 19A as in the cases of section 81 an importer asks for return of his pay order/bank guarantee or post dated cheque deposited as security nor files refund claims for the paid amount of duty and taxes at the time of provisional determination of value by the officer of customs because he is not in any manner entitled for that being the final levy of duty and taxes under the Act on the goods declaration, by virtue of non determination within the stipulated period given in Section 81(2) ibid if the customs had en-cashed those for meeting the revenue target, in the absence of determination of value within the stipulated period, the custom is duty bound to refund that amount without calling for an application for refund and this is in consonance with the direction of the Board given in para 66 of CGO 12/2002 dated 15.06.2002. Even otherwise the amount deposited as security cannot be termed as paid duty and taxes at the time of determination of value provisionally under section 81 of the Customs Act, 1969 as this will make Section 81 ibid redundant beside surplus in the Act and the assessment so made at the time of clearance of the goods under section 81 shall be deemed to be an assessment under the provision of section 80 ibid and Rule 438 of Customs Rules, 2001. This is against the intention of the legislature and the expression of section 81, beside this interpretation is nothing more than absurdity, therefore, denying the return of pay order to the appellant on the pretext of the provision of Section 19A is uncalled for and ab-initio wrong.

15.The ordering of encashment of the appellant pay order in contravention of the expression of section 81 of the Customs Act, 1969 by any Authority how Superior he may be and denial of return of the same by the respondent No. 2 is not more than an usurpation of an "Amanah", which the appellant deposited with the respondent Collectorate as security subject to its encashment or return upon determination of final value within the stipulated period given in subsection (2) of section 81 of the Customs Act, 1969. This type of usurpation rather any other type is not permitted under the Customs Act, 1969 beside every Act of Pakistan as these are direct in conflict with the Constitution of Islamic Republic of Pakistan, Islamic Moral Standards and Tenents of Islam. Reference is made to the objective resolutions which have been made substantive part of Constitution. The objective resolution reflects the will of the people of Pakistan to establish an order wherein the principle of social justice as enunciated in Islam shall also be fully observed. The objective resolution admits that sovereignty over the entire universe belongs to Allah All Mighty alone and authority which He has delegated to the State of Pakistan, through its people for being exercised within the limit prescribed by him, is a sacred trust.

Few commandments of Allah (SWT) relevant to the issue are reproduced below:

Do not usurp one another's property by unjust means. (2:188)

O believer's! do not consume/usurp one another's property/ wealth among yourself illegally (4: 29)

Weigh with even scale and do not cheat other of what is rightly there's nor corrupt the land with evil (26: 182-183).

Surely Allah commands you (O man in authority) that you shall render dues ("Amanah/Amanat") unto those entitled to them and when you judge between man judge fairly (4: 58)

16.There is no dispute the public servant hold the amount of security deposit as an "Amanah" and are supposed to return that or in case of encashment refund that to the person entitled to it. The legislature has set a time limit of 06 months in Section 81(2) of the Customs Act, 1969 in order to ensure timely determination of value or otherwise. If the determination is not made within time, the amounts so deposited as "Amanah" become returnable/refundable without any let, hitch and hindrance. The lapse on the part of Government Servant can not be attributed to a tax payer under the provision of Section 81 of the Customs Act, 1969 Constitution of Islamic Republic of Pakistan and Commandments of Allah (SWT). The same view was taken by the Hon'ble Supreme Court of Pakistan in the case of Pfizer Laboratories Ltd. v. Federation of Pakistan and others reported as PLD 1998 SC 64 for the refunds not governed under the provision of Section 33 of the Customs Act, 1969 that:--

(i)That if one party under a mistake, whether of fact or law, pays some money to another party (which includes Government Department) which is not due by law or contract or otherwise, that must be repaid in view of Section 72 of the Contract Act, 1872.

(ii)That the Customs duties and charges referred to in section 33 of the Act should be chargeable and payable by an importer or exporter and that due to inadvertence, error or misconstruction, more amount was paid or recovered than what was due and payable, the claim for the refund of such an excess amount should be made within six months as envisaged in above section 33, but where the duty or tax charged and recovered was not payable at all, above section 33 has no application.

(iii)That if the customs duty or any other levy was realized and its realization was outside the statutory authority, the provisions of section 27(1) of the Indian Customs Act, 1982, providing limitation of six months was not attracted.

(iv)That when any excise duty is recovered which was of leviable, limitation of one year provided in Rule 11 of the Central Excises and Sale Rules, 1944 is not applicable nor an alternate remedy by way of a suit will be a bar to a Constitutional petition.

(v)That payment of excise duty or any other tax without knowledge that the same is exempted under a notification is refundable on the same footing as if there was no lawful imposition.

(vi)To return what has been taken wrongly is a (sic) much duty and grace of Government to levy relentlessly and fully what is due as remarked by V.R. Krishna Lyer.

(vii)That where some money is received by the government not lawfully due, the plea of limitation by its department is one which the Court always looks upon with disfavor as it is violative of the principles of morality and justice.

(viii) That when money are paid to the State which the State has no legal right to receive, it is ordinarily the duty of the State subject to special provision of any particular statute or special facts and circumstances of the case, to refund the amount so received and in case of failure, a Superior Court in exercise of its Constitutional jurisdiction can direct the refund of the same if no disputed questions of facts are involved.

(ix)That these may be legal liability on the part of a Government functionary to refund any amount received by it as a tax other levy by virtue of certain special provisions under the special law but keeping in view that we are living in a democratic society governed by the rule of law and every Government, which claims to have ethical and moral values, must do what is fair and just to the citizen regardless of legal technicalities.

(x)That as per Indo Pak laws the fact that the amount of tax of which refund is claimed was voluntarily paid, does not preclude the right to claim refund, if it was not lawfully payable.

(xi)That the moneys paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by a citizen as of right. Lord Bridge of Harwich of the House of Lords in the case of Tower Hamlets Borough Council (Supra) remarked "that the retention of moneys known to have been paid under a mistake at law although it is a course permitted to an ordinary litigant is not regarded by the Courts as a 'high minded thing' to do but rather as a 'shabby thing' or a 'dirty trick'"

17.The appeal before the respondent No. 3 was filed on 04.07.2012 and an order under the proviso of subsection (3) of Section 193A of the Customs Act, 1969 should had been passed within 120 days from the date of filing of appeal i.e. on or before 01.11.2012 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 800 days from the date of filing of appeal, therefore hopelessly barred by time by 680 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.

18.To what have been stated/discussed herein above, particularly the interpretation of law and legal preposition in the light of prescribed law and observations made thereon, I hold that the passing of orders by the respondents Nos. 2 and 3 were/are unwarranted in the case of appellant, the same are declared to be illegal, null and void and hereby set-aside and appeal is allowed accordingly. The respondent Collectorate is directed to return the pay order and indemnity bond after cancellation and in case of encashment for meeting the revenue target, refund the amount to the appellant without calling for application for refund.

19.Order passed accordingly with no cost.

RR/54/Tax(Trib.)Appeal accepted.