FUSION GLOBAL SOURCING (PVT.) LTD., FAISALABAD VS ASSISTANT DIRECTOR, POST CLEARANCE, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1273 (2017)

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

----Ss. 26-A, 32, 79, 80 & 83--- S.R.O. No. 500(I)/2009, dated 13-6-2009---Allegation of mis-declaration---Declaration was transmitted under PCT Heading 3105.9000---Importer deposited upfront and taxes as pre-requisite---Prior to completion of assessment, goods declaration was referred for examination, and declaration was confirmed on the strength of posted examination report---Competent authority passed assessment order and changed the PCT Heading as 2503.0000 and transmitted view message for payment of additional amount of duty and taxes; which the importer paid and Authority passed clearance order and the importer obtained the delivery of the goods---Subsequently, Assistant Director of Directorate of Post Clearance Audit purportedly conducted audit of the goods declaration of the importer in terms of S.26-A of the Customs Act, 1969, wherein it was observed that the goods imported by the importer fell under PCT Heading 3824.9090 attracting 10% customs duty---Assistant Director framed contravention report and Deputy Collector of Customs, Adjudication, issued show-cause notice, with the allegation that the importer obtained the clearance of the goods under erroneous PCT Heading as against actual applicable PCT Heading 3824.9090 on which customs duty was leviable at 10%---Said act of the importer was alleged to fall within the ambit of S.32 of Customs Act, 1969 punishable under S.156(1)(14) of the said Act---Validity---Under provisions of S.26-A of the Customs Act, 1969, appropriate officer of customs conducting any audit, would proceed in the manner as the Federal Board of Revenue could by rules prescribe---No rules were framed/issued by the Board despite insertion in S.26-A of the Customs Act, 1969 through Finance Act, 2006---Assistant Director, Post Clearance Audit, was not at all appointed/designated as officer of Inland Revenue, hence he was not empowered to exercise the powers of an officer of Inland Revenue for conducting the audit---Entire act of audit, being without power/jurisdiction was coram non judice---Exercise of jurisdiction by Deputy Collector of Customs, Adjudication, was also without lawful authority and jurisdiction---Issuance of show-cause notice and passing of order-in-original, were held to be ab initio void and as such coram non judice---Assessment order under S.80 of the Customs Act, 1969 and passing of clearance order under S.83 of said Act, could not be disturbed by any Authority for the purpose of preparing contravention report and adjudicating proceedings---Only course left for Assistant Director of Post Clearance Audit was to challenge the said order before the Collector of Customs (Appeals) under S.193 of the Customs Act, 1969, in exercise of the powers delegated upon him through S.R.O. No.500(I)/2009, dated 13-6-2009---In the presence of an appealable order, fresh order could not be passed, even through issuance of show-cause notice---Transaction, which stood as passed and closed transaction and attained finality, could not be disturbed---Assistant Director implicated and Deputy Director of Customs charged importer for mis-declaration under provisions of S.32 of the Customs Act, 1969, merely on the basis of assumption/presumption---Show-cause notice providing the basis for impugned orders by the forum below were vacated/set aside by the Tribunal, in circumstances.

[Case-law referred].

(b) Administration of justice---

----Thing had to be done as it had been prescribed to be done; in case of doing the same in any other manner that would render it illegal and as such void ab initio.

[Case-law referred].

Nadeem Ahmed Mirza, (Consultants) present for Appellant.

Azhar Abbas, D/R for Respondent No.1.

Ashfaq Ahmed D/R for Respondents Nos. 2 to 4.

Date of hearing: 4th July, 2017.

JUDGMENT

TAHIR ZIA, MEMBER (JUDICIAL-II).---Through this order, I intend to dispose off Appeal bearing No. K-26/2017 directed against Order-in-Appeal No. 1248/2016 dated 02.12.2016 passed by Collector of Customs Appeal (here-in- after to be referred as respondent No. 4) maintaining the Order-in-Original No. 148/2016 -2017 dated 29.07.2016 passed by Deputy Collector of Customs, Adjudication-II, Customs House, Karachi. (here-in-after to be referred as respondent No. 3)

2.Briefly facts are the appellant imported a consignment of 90000kgs Palm Brand Brim Stone 90 Sulphur Ventonite Fertilizer from Saudi Arabia. Upon receipt of the goods at PICT transmitted Goods Declaration (here-in-after to be referred as GD) with the MCC of Appraisement-East, under Section 79(1) of the Customs Act, 1969 (here-in-after to be referred as Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 (here-in-after to be referred as Rules) by the appellant under PCT heading 3105.9000 and as pre-requisite deposited upfront duty and taxes of Rs. 331,633.00 vide cash No. C-KAPE-004943 dated 11.03.2015, which was numbered KAPE-HC-110533 dated 11.03.2015. Prior to completing assessment, the GD was referred for examination as terms of Section 198 and Rule 435 of the Act/Rules. The declarations was confirmed by the Officials posted at PICT, on the strength of pasted examination report in the reservoir of the GD, the competent authority as defined in Section 2(a) passed Assessment Order under the provision of Section 80 and Rule 438 of the Act/Rules and while doing so he changed the PCT heading of the goods as 2503.0000 as against declared 3105.9000 and transmitted view message dated 31.03.2016 for payment of additional amount of duty and taxes of Rs. 542,778.00 which appellant paid vide cash No. A-KAPE-006892 on 31.05.2016, consequent to which the inbuilt authority passed Clearance Order under Section 83 and Rule 442 of the Act/Rules and the appellant obtained the delivery of the goods. The Assistant Director, Directorate of PCA (here-in-after to be referred as respondent No. 1) purportedly conducted audit of the GD of the appellant in terms of Section 26A of the Act, wherein it was observed that the goods imported infact falls under PCT heading 3824.9090 attracting 10% custom duty, 17% sales tax, 3% additional sales tax and 6% income tax in addition to sales tax and income tax as against paid on the basis of assessment order i.e. Custom Duty 5%, 17% Sales Tax, 3% Additional Sales Tax and 6% Income Tax. The variation in percentage of duty and taxes resulted in short payment of Rs. 165,712.00. Based on the said opinion audit observation was issued to the appellant, which was replied and request was made for with-drawl of audit observation. The respondent No. 1 disagreed and framed contravention report and presented that to Director PCA, who after approving referred that to Collector of Customs, Adjudication-II, who marked that to the respondent No. 3, who issued show-cause notice dated 01.04.2016 with the allegation that the appellant obtained the clearance of the goods under erroneous PCT heading, as against actual applicable PCT heading 3824.9099, on which Customs Duty is leviable @ 10%, Sales Tax @ 17% Additional Sales Tax @ 3% and Income Tax @ 6%, This caused short payment/revenue loss of Rs. 165,712.00. to the exchequer. The said act of the appellant falls within the ambit of Sections 32(1), (2) and 3(A) of the Act, Sections 3,6, 7, 33 and 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001, punishable under clause 14 of Section 156(1) of the Act, Sections 7A, 33(5) of the Sales Tax Act, 1990 read with Chapter X of the Sales Tax (Special Procedure Rules, 2007 for payment of Sales tax by the importer ) and Sections 148 and 182 of the Income Tax Ordinance, 2001. The show cause was replied vide letter dated 20.07.2016, which failed to obtain the nod of respondent No. 3 and he passed order dated 29.07.2016, through which he held the charges levelled in the show-cause notice and ordered payment of Rs. 165,712.00 along with imposed penalty of Rs. 5000/-.

3.Being aggrieved by the impugned order, appellant assailed the vires before the respondent No. 4 under the provision of Section 193 of the Act, which met the same fate. Para 5 of the order dated 02.12.2016 is relevant, verbatim of which is:

"I have examined the record. The fact of the matter as evident from record is that the appellants filed GD on 11.03.2015 under heading 3105.9000 of the first schedule to the Customs Act, 1969. The responding department after examination of goods, determined classification of goods under heading 2503.0000. In a later development the classification centre gave ruling on 03.10.2015 that the goods were appropriately classified under heading 3824.9099. The cornerstone of the appeal is that it was the consistent practice of the department to classify goods under heading 25.03, therefore ruling to change practice will have prospective effect. The relevant public notice shows that proceedings for determination of classification were initiated in the matter of GD No. 65268 dated 08.12.2014, meaning thereby that there was no consistent practice to classify goods under examination even before the impugned GD. Had it been a consistent practice, the importers had no reason to declare classification under heading 3105.9000. I therefore find no reason to interfere with the order. The appeal being without merit is dismissed."

4.Now the appellant has assailed the order through the instant appeal before this Tribunal on the grounds incorporated in the memo. of appeal and the appellant counsel's on the date of hearing tendered arguments in line with the facts and grounds enumerated therein and prayed for the acceptance of appeal by setting aside the order passed by the forum below in order to meet the norms of justice and fair play.

5.No cross objection under subsection (3) of Section 194A of the Act have been submitted by either of the respondents within the stipulated period prescribed therein. Instead comments was submitted by respondents Nos. 1 and 2, which are placed on record of the case for consideration and perusal. The representative of the respondents Nos. 1 and 2, adopted the comments as arguments, stated further that the orders passed by the authority below are correct in facts and law. Therefore, need not to be disturbed and be maintained while dismissing the appeal.

6.Heard and perused the record and the relied upon documents/ judgments by the appellant's. Prior to dilating upon other factual and legal aspect of the case, it is of vital importance for me to deliberate on the mechanism/procedure outlined by the legislature in the provision of Section 26A of the Act for conduction of audit of the record of the importers and on the jurisdiction/powers of the Directorate General of Post Clearance Audit (PCA) or respondent No. 1 in conduction of audit under Section 25 of the Sales Tax Act, 1990 and Section 177 of the Income Tax Ordinance, 2001 of the Sales Tax/Income Tax collected at import stage by the Officials of Clearance Collectorate and respondent No. 3 as per the enunciation made in Sections 3,6, 7, 33 and 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 in the absence of their appointments as Officer of Inland Revenue under Section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 as the question of jurisdiction and powers has to be decided. In the first instance as objection qua jurisdiction is a basic lacuna on assumption of jurisdiction as it goes to the very roots of the matter and renders the entire proceeding coram non judice as held in reported judgments 2017 PTD 196 Collector of Sales Tax v. Khursheed Spinning Mills Ltd. and another.

7. For obtaining answer to the first part of my observation in regards to mechanism/devised procedure of audit, reproduction of Section 26A is of vital importance:--

26A. Conducting the Audit:---(1) the appropriate officer of Customs conducting any audit under this Act shall proceed in the manner as the Board may by rules prescribe.

(2) Where any audit or inquiry or investigation is to be conducted for the purpose of ascertaining the correctness of any declaration or documents or statement, for determining the liability of any declaration or document or statement, for determining the liability of any person for duty, taxes fees surcharge fines and penalties, or for ensuring compliance with all other laws administered by the Customs, an appropriate officer of Customs may;-

(a) Examine, or cause to be examined upon reasonable notice, any record or any statement or declaration or document described in the notice with reasonable specificity, which may be relevant to such audit, inquiry or investigation:

(b) Summon, by giving a notice and reasonable time,-

(i) The person who imported, or exported or transported or stored or held under customs bond, or filed a goods declaration, drawback or refund claim,

(ii) Any officer, employee or agent of any person described in clause (a); and

(iii) Any person having possession custody or care of records and documents required to be kept under the Act and any other person, as deemed proper, to appear before him at a reasonable time and to produce such records and documents as specified in.

From bare reading of the provision of Section 26A of the Act, it is abundantly clear that the appropriate designated Officer of Customs empowered by the Board for conducting audit of the record of the importer in the manner prescribed by the Board in Rules. To date no Rules are framed /issued by the Board despite insertion in Section 26A of the Act through Finance Act, 2006, resultant, the audit of an importer accounts/record maintained by him under the provision of Section 211 and Chapter XI of Act/Rules, has to be conducted by the Officials of Directorate of Post Clearance Audit or respondent No. 1 as per the mechanism provided in the Section itself, wherein appropriate officer of Customs is empowered to conduct audit or inquiry or investigation of an importer for the purpose of ascertaining the correctness of any declaration or documents or statement, for determining the liability of any declaration or document or statement, for determining the liability of any person for duty, taxes, fees, surcharge, fines and penalties, or for ensuring compliance with all other laws. However, prior to proceeding with the said exercise, the appropriate officer appointed under Section 3DD of the Act for the said purpose and empowered through S.R.O. 500(I)/2009 dated 13.06.2009, which respondent No. 1 have to either summon or give a notice and reasonable time to an importer for the conduction of audit and for the said purpose production of accounts and record as per the expression of clause (b) of subsection (2). The first ground of the appellant in memo. of appeal is that the respondent No. 1 has not either issued to him any notice or served a summon for the purported exercise of audit despite mandated under law and this lapse renders the audit so conducted, which is the root cause of the impugned show-cause notice as of no legal effect. Since, no notice is annexed with the memo. of appeal, the representative of respondent No. 1 was asked to place the copy of the notice/summon forwarded/served to the appellant, as the copy of the same would had been available with him in the case file. The query was replied in negative, which flabbergasted me, another query was made from him that how the audit was conducted, without asking for the accounts and record of the import, the answer was on the basis of GD available in the data reservoir maintained by PRAL under Rule 110 of Rules, upon this the representative of respondent No.1 was confronted to read out the passage available in Section 26A, wherein audit of any importer is permitted on the basis of the record available in the WeBOC Module, to this the answer was given in negative confirming that audit of the importer accounts/book could only be conducted upon presentation of those after receiving notice/summon to do so. In the absence of that conduction of audit on the basis of the record available on the WeBOC Reservoir is not permitted as it is settled proposition of law that a thing has to be done as it has been prescribed to be done, in case of doing the same in any other manner render it illegal and as such void and ab initio and this have been held in countless reported judgments, reference is PTCL 2003 CL 345 that "the thing should be done as they are required to be done, or not at all". The Apex Court held in judgment PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner" and in PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted.". The super structure built on such foundation namely audit observation, show-cause notice and order-in-original no matter how strong those may be have to fall, reference is made to PLD 1996 Karachi 68 which laid down that " where the initial order or notice was void all subsequent preceding, orders or super structure built on it were also void. In reported judgment 2006 PTD 978 it is held that "the entire proceeding initiated by the Adjudicating authority and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The Apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---all successive orders based upon it illegal and liable to be quashed".

8.That in regards to the second part of my observation available in para 5 supra, the respondent No. 1 in the comments has stated that in the matter of Sales Tax and Income Tax he assumed the power of auditing and respondent No. 2 initiating adjudication proceeding in the light of clarification issued by the Board vide C.No. 3(32) TAR-I/90 dated 06.08.2012 on the basis of opinion of the Ministry of Law and Justice through Memorandum No. F-242/2012 -Law-I dated 11.07.2012 I have perused Section 228 of the Income Tax Ordinance and found that the respondent No. 1 has not been appointed/designated as Officer of Inland Revenue by the legislature, instead the Directorate General of Internal Audit has been appointed/designated as officer of Inland Revenue and for overseeing the collection of withholding Tax, Directorate General of Withholding Taxes has been established under Section 230A of the Income Tax Ordinance, 2001, meaning thereby that the respondent No. 1 is not at all appointed/designated as Officer of Inland Revenue. Resultant neither Directorate General of PCA nor respondent No. 1 are empowered to exercise the powers of an Officer of Inland Revenue under Section 207 for conducting audit under Section 177 of the Income Tax Ordinance, 2001. Rendering the entire act of audit in the matter of Income Tax by the respondent No. 1 without powers/jurisdiction and as such coram non judice. My opinion stood vindicated from the latest reported judgment [(2014) 109 Tax 315 (H.C.Kar.)] Waseem Ahmed and others v. FOP and another, where it has been held in clear terms that "unless the officer of DGI&I)-FBR are not appointed and an officer of Inland Revenue, powers under the different subsection of the Sales Tax Act, 1990 can not be delegated through any S.R.O. with that the Hon'ble High Court of Sindh declared Notification No. 775(I)/2011 ultra vires to the Sales Tax Act, 1990". However, the respondent No. 1 is indeed appointed as Officer of Inland Revenue under Section 30DD of the Sales Tax Act, 1990 and thereafter Board delegated powers through Notification No. 42(I)/2010 under different Sections of the Sales Tax Act, 1990 in column (4) of notification, subject to exercise of those under the designation of authorities given in column (3), which are (i) Chief Commissioner/Commissioner Inland Revenue (ii) Additional Commissioner of Inland Revenue (ii) Deputy Commissioner Inland Revenue and (iv) Assistant Commissioner Inland Revenue and not in the capacity or designation of (i) Director General /Director -PCA (ii) Additional Director-PCA (iii) Deputy Director-PCA and (iv) Assistant Director-PCA. In the instant case the entire communication including the audit observations and contravention reports were prepared and served by the respondent No.1 in the capacity of Assistant Director of PCA, which is non-existent in column No. (3) of Notification No. 42(I)/2010 dated 23.01.2010, Assuming jurisdiction and powers on the basis of Boards letter and opinion extended by Ministry of Law and Justice is misconceived as Board have no mandate to interpret the provision of the Act or amend. It can only give opinion, it is for the judicial fora to interpret the provision of statute and my opinion stands validated from the reported judgment 2005 PTD 2462 Messrs Lever Brother Pakistan Ltd., v. Customs Sales Tax and Central Excise Appellate Tribunal, Karachi that "CBR has no place to in the Scheme of Law, conferred with the jurisdiction to interpret any law, statutory or in exercise of any deliberate authority i.e. subordinate legislation" and in 1993 SCMR 1232 in the case of Central Insurance Co., v. Central Board of Revenue the Hon'ble Supreme Court of Pakistan held that "Board's view as to the interpretation of law do not have the force of law and the exception would be, where a fiscal statute is involved, which should be implemented with strict impartiality" and 2016 PTD (Trib.)107 Qazi CNG Station, Gujrat and another v. Directorate General of Intelligence and Investigation-FBR, Karachi and 2 others, this Tribunal held that "statute can be amended by the Parliament and a notification through a notification not through any communication. In the absence of amendment of notification, clarification issued by the department could only be termed as opinion and it would not at all amend the notification". Therefore jurisdiction /powers have to be assumed as enunciated in the Sales Tax Act, 1990 and Income Tax Ordinance, 2001, which prevails. Rendering the assumption of power/jurisdiction without lawful authority. Hence ab-initio void and coram non judice. Therefore, entire proceeding right from audit, audit observations, contravention report are of no legal effect. Any super structure built thereon no matter how strong it may be had to fall as held by Superior Judicial Fora in umpteenth reported judgment PLD 1971 SC 197 Chittaranjan Cotton Mills Ltd., v. Staff Union, Raunaq Ali's PLD 1973 SC 236, 2002 PTD (Trib.) 889 in M/s. Unitex Tower Factory v. the Collector of Customs (Appeals ) and others, K-106/03 in M/s. Silver Corporation v. The Additional Collector of Sales Tax (Adjudication), Karachi III, Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD. 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 37 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others.

9.I have also noticed with great concern that the respondent No. 3 in the show-cause notice have invoked sections 3, 6, 7, 33 and 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 without realizing that Section 3 while indeed being a charging section cannot be invoked by anyone other than an Officer of Inland Revenue whereas Section 6 is a machinery section that lays down the procedure relating to collection of Sales Tax at the import stage by the customs authorities hence cannot be used to charge anyone for an offence. Section 7 speaks about the determination of tax liability at the time of filing tax returns meaning it is also a machinery section. Section 33 contains penal clauses and Section 34 explains the default surcharge to be paid upon contravention and establishment of the charge under the charging section; these sections are independent and cannot be used to invoke a charge. Since, these sections are irrelevant in the matter of customs and no show-cause notice can be issued by a custom officer under these section, render the issued show-cause notice and passed order-in-original palpably illegal and as such void and ab-initio as held in the following reported judgments: Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593, Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs.

10.In order to further crystallize, the issue relating to recovery of short paid sales tax and income tax, I was indebted to peruse Section 30 of Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 and have observed that the legislature appoints under the said Sections different organs of the FBR as Officer of Inland Revenue for exercising powers under the respective Sections of the Act/Ordinance, delegated through statutory notifications or under Section 207 of the Income Tax Ordinance, 2001. In these Sections respondent No. 3 figures nowhere nor in charging section 11 of the Sales Tax Act, 1990 or Section 162(1) of the Income Tax Ordinance, 2001. Therefore, the respondent No. 3 under no circumstances was empowered to lay hands on the matter falling within the ambit of Sections 3, 6, 7A and 11 of the Sales Tax Act, 1990 and Section 162 (1) of the Income Tax Ordinance, 2001. These sections least empowers the Officers of Customs including the respondent No. 3 to initiate adjudication / recovery proceeding for the short collected/paid Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. For proceeding for these type of recovery a show-cause notice has to be issued under the Provision of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, the authority to issue show-cause notice under these Sections are Officer of Inland Revenue and the Commissioner of Income Tax not respondent No. 3.

In order to lend clarity expression of Section 11 of the Sales Tax Act, 1990 and Section 162 (1) of the Income Tax Ordinance, 2001 are referred, which empowered the Officer of Inland Revenue and Commission of Income Tax to initiate adjudication / recovery proceeding for the short collected/paid, Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Respondent No. 3 figures nowhere in these sections. He assumed the power not vested with him under the provision of Sections 11 and 162(1) of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001. Therefore, I hold without any reservation that the Customs Collectorates does have powers to collect and enforce payment of Sales Tax and Income Tax at the time of clearance. The plea that the Customs is empowered to recover the short paid amount of sales tax and income tax at the import stage under Section 202 of the Customs Act, 1969 is also based on mistaken belief, The fact of matter is Customs Collectorate could recover the amount of Sales Tax and Income Tax only upon receipt of notice from the Officer of Inland Revenue and Commissioner of Income Tax in terms Section 48 of the Sales Tax Act, 1990 and Section 140 of the Income Tax Ordinance for recovery of the adjudged amount of Sales Tax and Income Tax after due process of law. Therefore, it is my considered opinion that the Clearance Collectorates does have the authority to collect Sales Tax and Income Tax at import stage in the capacity of collecting agent and can recover escaped/short payment paid Custom Duty and Regulatory Duty levied on the imported goods under Sections 18, 18A and 18C of the Act under Section 202 ibid., after due process of law, but have no powers to adjudicate the cases of short recovery of Sales Tax and Income Tax falling within the ambit of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, my opinion stands fortified from the reported/ unreported judgment of the superior Judicial Fora namely 2011 PTD (Trib.) 110, 2010 PTD (Trib.) 2086 SCRA No. 01/2010, 2004 PTD 801, C.P. No. D-216/2013, 2015 PTD 702, 2016 PTD (Trib.) 969, 2016 PTD (Trib.) 1008, 2016 PTD (Trib.) 2125, Appeal No. K-1635/ 2014, Appeal No. K-1029/2016 Appeal No. K-1030/2016, Appeal No. K-1343/2015, 2016 PTD (Trib.) 2463 and 2017 PTD (Trib.) 481.

The opinion formed by me also have the validation of the judgments reported at 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23 and 2007 PTD 250 is titled as Collector of Sales Tax and Federal Excise v. Messrs Qasim International Container Terminal Pakistan Ltd., wherein it has been held that "There is a clear distinction between the charging provision of Statute and the machinery part thereof. It is axiomatic that mode of manner of recovery does not alter, the nature of tax nor a tax can be introduced or import by implication." In 2008 PTD 1973 Xen Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax, Faisalabad, for clarity of the Rule of Interpretation of Statute, golden principle was outlined in so many words reading as "That fiscal law is to be applied with full authority and its natural meaning-one has to look merely at what is clearly said and there is no room for any intendment-neither there is equity about a tax nor presumptions as to tax nothing is to be read in, nothing is to be implied -- one can only look fairly at the language used" The Hon'ble Supreme Court of Pakistan in reported judgment 2006 SCMR 12 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others held that:--

"If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted--- each and every words appearing in a Section is to be given effect and no other word is to be rendered as redundant or surplus - when the legislature required the doing of a thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred -- if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare tacitum"

I, therefore hold in the light of the law laid down in the referred in above deliberation and cases reported at, that the exercise of jurisdiction on this point by Respondent No. 3 is also without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of Order-in-Original are held to be ab-initio void and as such coram non judice on this point also.

11.Upon passing of assessment order under Section 80 and Rule 438 of the Act/Rules and thereafter passing of clearance order under section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Act and Notification No. 371(I)/2001 dated 15.06.2001, it cannot be disturbed by any authority for the purpose of preparing contravention report and adjudication proceeding. The only course left for the respondent No. 1 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Act in exercise of the powers delegated upon him through Notification 500(I)/2009 dated 13.06.2009. In the filed appeal the respondent No. 1 is empowered to incorporate all the apprehension, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, upon receipt of the appeal and going through the facts and grounds if thinks fit that the contention of the respondent No. 1 seems to be correct and the duty and taxes has not been either not levied or short paid on the basis of the goods found subsequent to clearance, is empowered to issue show-cause notice to the importer (appellant) as expressed in 3rd proviso to the subsection (3) of Section 193A of the Act. Instead of the adhering the prescribed method available in the Act the respondent No. 1 reopened the assessment/ clearance order under section 195 of the Act under which no powers are vested with any Officers of the respondent No. 1. When the right of appeal has been accorded by the legislature in the provision of Section 193 of the Act, the provision of Section 195 is un-operational and cannot be exercised even by the authority defined therein and this has been validated by the Hon'ble High Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that "department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal) --- 1st order in original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set-aside and Constitution Petition was allowed." It is also settled proposition of law that in the presence of an appealable order, fresh order cannot be passed even through issuance of show-cause notice under section 180, while exercising powers under the provision of Section 179 ibid. The said act is piling upon yet another order on the existing appealable order which is not permitted under law as held by Hon'ble High Court of Sindh in reported judgment 2004 PTD 3020 Messrs Smith Kline French v. Pakistan that "once an order is passed, which attain finality the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order". By virtue of non filing of appeal as elaborated above. The transaction stood passed and closed and attain finality and cannot be disturbed. For reaching at the decision I have gained strength from the reported judgment 1989 MLD 4310 Messrs World Trade Corporation v. Central Board of Revenue, wherein their lordship of High Court held that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that has attained finality, under the Sea Customs Act, 1878 and against which sou motu revision. Notwithstanding, the act of issuance of show-cause notice and passing of order-in-original in the instant case by the respondent No. 3 also falls under the ambit of "double jeopardy" not permitted under Article 13 of the Constitution of Islamic Republic of Pakistan. Rendering the order passed by respondents Nos. 3 and 4 for piling upon an existing appealable order are without lawful authority and jurisdiction and as such void and ab-initio and of no legal effect.

12.I have noted with concern that the respondent No. 1 implicated and the respondent No.3 charged the appellant, for mis-declaration under the provision of Section 32 of the Customs Act, 1969 merely on the basis of assumption/presumption that the appellants transmitted GDs on the basis of erroneous description and PCT heading, in order to hoodwink the Customs and to evade the amount of duty and taxes. I am unable to buy the said arguments as in conduction of examination appellants have no part to play instead had to be carried out by the subordinate of respondent No. 2 with the assistance of Officials of Terminal Operator, independently and without any influence as per the expression of Section 198 and Rule 435 and the passing of assessment/clearance order under sections 80 and 83 and Rules 438 and 442 of the Act/Rules rest with the sole and exclusive domain of the Customs Officer listed at Serial Nos. 30 and 33 of the S.R.O. 371(I)/2002 dated 15.06.2002.The Official conducting the examination and confirming the declaration and who passed assessment/clearance orders while accepting the declaration as true and correct while changing PCT as 2503.0000 as against transmitted 3105.9000 vide dated 18.03.2015, for confirmation of the said fact the representative of the respondent No. 2 was asked to read the remarks adduced by the Appraiser and Principal Appraiser, he complied and read the remarks, which are "[KAPE-HC-96671-11.02.2015] ER, documents and images may kindly be seen GD completed in view of the data/evidence and explanatory/chapter note. However refer to PA to check assessment please" and "KAPE-HC-96671-11.02.2015". Upon this, his attention was invited to the comments submitted with the Tribunal, wherein it has been stated that the goods of the appellant falls under PCT heading 3824.9090, why change of opinion at this juncture contrary to the assessment order. The representative of the respondent No. 2 was taken aback and kept quite, confirming that the assessment so passed in the GD was correct, if it is contrary as per the opinion of respondent No. 1 then it could had not been possible unless these officials were having hands in gloves with the appellants. Meaning thereby that they are standing on the same pedestal. Ironically, no charges have been levelled under Section 32(2) against those Officials, as of appellant. This act of the respondents proves that the appellant had been met out with partial treatment, which is not permitted under Article 25 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Superior Judicial Fora in reported judgment 2002 SCMR 312 and 2009 PTD 1507 the Hon'ble Superior Courts have observed that "there exists no power to target incidence of tax in such a way that similarly placed person be dealt not only this similarly, 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 placed 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."

13.Notwithstanding, for resolving the issue in hand, I have scrupulously gone through the contents of show-cause notice and the grounds taken by the appellant and has observed that the allegations levelled by the respondent No. 3 in the show-cause notice are of based on the decision of the classification committee circulated through public notice No. 16/2015, through which the goods namely "Granular Straight Sulphur Fertilizer" has been classified under PCT 3824.9090 as against the goods of the appellant which are "Palm Brand Brim Stone 90 Sulphur Ventonite Fertilizer" and are quite different from the classified goods, determined PCT could not be applied on the goods of the appellant in the absence of any test report, which is nonexistent. Even otherwise, the public notice is not a valid document in the absence of validation of the Board, which is final authority. Reference is made to CGO 9/2004 dated 20.08.2004, which direct to the Collector of Clearance Collectorate that "It has been observed that Collectorates issue Public Notices and Standing Orders for facilitation, clarification, standardization of procedures etc. however, due to divergent practices and order issued by the Collectorates on same issue, uniformity as envisaged under the Revised Kyoto Convention is not being attained at all the customs stations. Therefore, it has been decided that Collectorates will not issue Public Notices and Standing Orders, in future. However, if a need arises, a draft Public Notice or Standing order will be sent to the Central Board of Revenue for further necessary action." Compliance of orders, instructions and direction of the Board is mandatory under Section 223 ibid and no defiance is permitted to be made. Seeking approval in the matter of classification after reclassification of the goods as against the HS Code under which that was previously assessed is vital as the said classification had to be inserted in Para 3 of CGO 12/2002 dated 15.06.2002 for application/implication by the field formation on the forth coming consignments, which is not available with the Chairman Classification Committee and the public notice so issued by him is without lawful authority and as such void and ab-initio. Before parting with the decision it is imperative for me to adduce for the sake of regularization that "any official decision has to be applied prospectively not retrospectively. The consignment of the appellant arrived in the month of March 2015 and the public notice number 16/2015 was issued on 03.10.2015. Resultant, it is applicable on the consignments arriving on or after 04.10.2015 not on the consignment of appellant which dates 11.03.2016. Therefore, the application of public notice on the appellant goods despite being different from the classified, retrospectively is in derogation of Para 74 of CGO 12/2002 dated 15.06.2002 and the law laid down by the Superior Judicial Fora in reported judgments PLD 1974 Supreme Court 180, 2004 PTD 2524, S.T. Appeal No. K-271/2008, PTCL 2009 CL 140, 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.

14.For the foregoing deliberation/observation and in the light of prescribed law laid down by the Superior Judicial Fora and in adherence of the ratio decidendi, the instant appeal is allowed and the Show-Cause Notice providing the basis thereof for impugned orders passed by the forum below are vacated/set aside, as to no order to cost.

15.Order passed and announced accordingly.

HBT/79/Tax(Trib.) Appeal allowed.