TRACKING WORLD (PVT.) LTD., LAHORE VS COLLECTORATE OF CUSTOMS, MCC OF APPRAISEMENT-WEST, KARACHI, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1991 (2017)

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

----S. 186---SRO No.371(I)/2002, dated 15-6-2002---Detention of the consignment---Consignment could only be detained under S.186 of the Customs Act, 1969, after payment of leviable duty and taxes and order of clearance by the authority defined under S. 186 or SRO No.371(I)/2002, dated 15-6-2002, if any adjudication order against the importer was in field and wherein fine/penalty had been imposed and which was not paid; or in the case wherein contravention report had been framed in an under-clearance consignment; for adjudication by the competent authority as defined in S.179 of the Customs Act, 1969 for imposition of fine or penalty---In the absence of the said conditions in the provisions, consignment, could not be detained under S.186 of the Customs Act, 1969---In the present case, no such order was available; wherein adjudicating authority had imposed any fine or penalty on the importer, nor any contravention report was prepared for the purpose of adjudication, prior to passing of assessment/clearance order under the respective provisions of the Act/Rules---Consignment, in the present case, had been detained by subordinates of the Director of Intelligence and Investigation, after passing of valid assessment/ clearance order by the adjudicating authority in exercise of the powers conferred upon him by S.R.O. No.371(I)/2002, dated 15-6-2002 on the premises that the goods so imported were under assessed on the basis of declared erroneous description, PCT and appreciation of incorrect value---Detention under such pretext was not permissible under the provisions of S.186 of the Customs Act, 1969---Officials of Director of Intelligence and Investigation or any other authority being not competent to detain the consignment on said pretext was in derogation of the express provision of S.186 of the Customs Act, 1969.

[Case law referred].

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

----S.168---S.R.O. No.486(I)/2007, dated 9-6-2007---Seizure of goods---Director of Intelligence and Investigations, and the officials derived powers for functioning by S.R.O. No.486(I)/2007, dated 9-6-2007 for thwarting the act of smuggling---Such authority would not mean that they had unfettered powers to intercept and detain the goods cleared by the officials of Clearance Collectorate after completion of codal formalities and realization of the leviable duty and taxes, for delivery to the importer through his representative; either in the terminal or their office---Jurisdiction of the said authorities, in fact, was only restricted to the areas falling outside the purview of Ss. 9 & 10 as expressed in S. 177 of the Customs Act, 1969 and S.R.O. No.188(I)/83, dated 12-12-1983---Without any allegation of smuggling, in the contravention report and invoking of the said jurisdiction in the show-cause notice, Collectorate of Customs, could not assume powers of seizing the goods under S.168(1) of the Customs Act, 1969---Directorate of Intelligence and Investigation was not empowered to exercise powers under the provisions of S.168(1) of the Customs Act, 1969, which could only be exercised by invoking the provisions of S.2(s) of the Customs Act, 1969---Goods, in question could not even be seized by said directorate---Unlawful act of the directorate of Intelligence and Investigation was an act of high handedness, abuse of powers being in violation of the law, void ab initio and coram non judice.

[Case law referred].

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

----Ss. 32, 79, 80 & 195---S.R.O. No.371(I)/2002, dated 15-6-2002---Untrue statement, error etc.---Assessment of duty---Powers of the Federal Board of Revenue or Collector of customs to pass certain orders---Federal Board of Revenue had not delegated powers to the Director of Intelligence and Investigation under the provision of Ss.32 & 79 of the Customs Act, 1969 which were incorporated in the contravention report and were invoked in the show-cause notice by Additional Collectorate of Customs; because S.32 provided about false statement, error etc. and S.79 (Declaration and Assessment of Home Consumption Warehousing) was a machinery section and defined the procedure for filing of goods declaration by the importer---For re-opening of the appealable order, powers under S.195 of the Customs Act, 1969 had been conferred either on the Collector of Customs or Federal Board of Revenue---Despite the fact that no powers under said sections were available with the Directorate of Intelligence and Investigation reopened the assessment order passed by the competent authority under the provisions of S.80 of the Customs Act, 1969---Mode and manner in which the said Directorate operated, was nothing more than creating a situation of anarchy---Detention/seizure and subsequently preparation of contravention report by the Directorate of Intelligence and Investigation and issuance of show-cause notice/ passing of order-in-original by collectorate of customs and putting thereupon order-in-appeal, were without powers/jurisdiction and lawful authority, as such, null, void ab initio and coram non-judice.

[Case law referred].

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

----Ss. 80, 179, 180 & 193---S.R.O. No.371(I)/2001, dated 15-6-2001---Assessment order---Assessment order by adjudicating authority under S.R.O. No.371(I)/2001, dated 15-6-2001, could not be disturbed by any authority for preparing contravention report, overlapping assessment order; for initiation of adjudication proceedings---Additional Collector of Customs, in the present case, issued show-cause notice and passed order-in-original---Only course available under the law for Collectorate of Customs and Directorate of Intelligence and Investigation was to challenge the assessment order before the Collector of Customs (Appeals) under S.193 of the Customs Act, 1969 in exercise of the powers delegated upon them---In the presence of an appealable order, fresh order could not be passed even in the shape of assessment order or through issuance of show-cause notice under S.180 while exercising powers either under provisions of S.80(3) or S.179 of the Customs Act, 1969---Detention/seizure notice and contravention report, was annulled, show-cause notice was vacated and orders passed by forums below, were set aside being illegal, void ab initio.

[Case law referred].

Javaid Anjum, G.M. for Appellant.

Saeed Ahmed Soomro P.A. for Respondent No.1.

Saud ul Hassan I.O. for Respondent No.2.

Date of hearing: 11th April, 2017.

JUDGMENT

TAHIR ZIA, MEMBER (JUDICIAL-II).---Through this order, I intend to dispose off Appeals bearing No. K-1238/2016 directed against Order-in-Original No. 744/2015-16 dated 30.05.2016 passed by Additional Collector of Customs, Adjudication-I, Custom House, Karachi.

2.Briefly facts are appellant imported a consignment of 1 x 40" container No. TCLU-8334363 declared to contain 831 pieces of GPS navigational system with accessories. Upon receipt of import documents and arrival of the vessel at Karachi the appellant transmitted Goods Declaration (here-in-after to be referred as GD) under the provision of 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) with the MCC of Appraisement-West, and as per pre-requisite deposited upfront duty and taxes of Rs. 317,617.00 vide cash No. C-KAPW-008342, consequent to which GD was numbered as KAPW-HC-194357 dated 13.04.2016. Upon appearance of Goods Declaration on his desktop, the nominated Appraiser instead of completing the assessment on the basis of the declaration and scanned documents, opted to get the goods examined under Section 198 of the Act and Rule 435 of the Rules. He after adducing his opinion transmitted GD to the Deputy Collector of the Group, who ascended and transmitted GD to the Deputy Collector KICT, who marked that to the examiner for conduction of physical verification of the imported goods for determination of actual description, quantity and quality. The examiner concerned carried out the physical verification of the goods and found those in accordance with the declaration, report so prepared was posted by him in the reservoir of the GD. Thereafter, Assessing Officer on the basis of examination report completed the assessment and passed assessment order under the provision of Section 80 of the Act and Rule 438 of the Rules and transmitted view message for payment of additional amount of duty and taxes of Rs. 1,447,991.00, which were paid by the appellant on 20.04.2016 vide cash No. A-KAPW-006576, consequent to which inbuilt authority of the WeBOC passed Clearance Order in terms of Section 83 of the Act and Rule 442 of the Rules. Immediately, after passing of Clearance Order, the subordinate of Directorate General of Intelligence and Investigation-FBR (Enforcement) (here-in-after to be referred as respondent No. 2) blocked the delivery and thereafter detained the goods under Section 186 of the Act on the plea that the assessment order so passed is erroneous being passed on the basis of declaration and examination report, scanned documents/catalogues upon receipt of view message under Rule 437 of the Rules is contrary to the actual description and classification of the goods. The subordinate of respondent No. 2 subsequently examined the goods, which transpired that the appellant has obtained clearance of Car DVD Player with Navigational System, FM Radio with multiple functions like bluetooth, MP3, MPEG4, SD Card, GPS Memory, Rare View Camera, Surround Sound System, 8x480 HD Digital Screen and Remote Control, packed in cartons bearing importer logo 'Tracking World In-Dash-Navigation System', falling under PCT 8527.2910 attracting 35% custom duty as against 5% on declared PCT 8526.9100, beside excess quantity of pieces was also found in addition to two different models as against one model akin to the consignment of the appellant imported vide GD No. KAPW-HC-17391 dated 31.07.2015. This misdeclaration of description and PCT resulted in under assessment causing loss to the exchequer to the extent of Rs. 2,480,095.00 and the act of the appellant's falls within the ambit of Sections 32(1), (2) and 79(1) of the Act, Sections 3, 4, 6, 33 and 34 of the Sales Tax, 1990 and Section 148 of the Income Tax Ordinance, 2001, punishable under clause (14) of Section 156(1) and aforesaid Sections of the Sales Tax and Income Tax. As a result of the said finding, the official of respondent No. 2 seized the goods under Section 168(1) of the Act and a notice under Section 171 was also served upon the appellant. Thereafter, contravention report was framed by respondent No. 2 and forwarded to Collector of Customs, Adjudication-I, who marked that to the authority of competent jurisdiction as expressed in Section 179 of the Act. On the strength of which the Additional Collector of Customs (Adjudication-I) (here-in-after to be referred as respondent No. 3) issued show-cause notice dated 10.05.2016, which was replied by the appellant, to which respondent No. 3 disagreed and passed Order-in-Original dated 30.05.2016 through which he held the charges as levelled in the show-cause notice as established and ordered confiscation of the good subject to redemption of those upon payment of 35% redemption fine of the value of the goods, imposed penalty of Rs. 250000.00 in addition to evaded amount of duty and taxes of Rs. 2480095.00. Consequent to which the appellant on one hand assailed the vires of the order before the Tribunal, whereas on other hand for release of goods filed Constitution Petition No. D-2935/2016 before the High Court of Sindh vide order dated 03.06.2016 ordered release of the goods upon submission of pay order for the difference amount between the declared and assessed value, as well as fine and penalty through post dated cheques with the Collector of Customs, MCC of Appraisement-West, Karachi. The appellant complied the order and submitted pay order for Rs. 2480095.00 and post dated cheques for imposed fine and penalty, consequent to which the respondent No. 2 issued NOC and the Collector of Customs, Appraisement-West ordered delivery of the already released goods.

3.The appellant filed the subject appeal on the basis of grounds enumerated therein. No cross objection under subsection (4) of Section 194A has been filed within the stipulated period of 30 days by either respondents Nos. 1 and 2 themself or through their subordinate, instead comments were filed by Group-VII vide dated 14.02.2017, which are placed on record of the case for consideration and perusal. On the date of hearing the representative of the appellant further argued that:--

(i)That neither respondent No. 2 or his subordinates were empowered to detain the goods of the appellant under the provision of Section 186 of the Act after passing of assessment/ clearance orders under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules to be read with reported judgments 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 03 others and 2015 PTD 560 Messrs O.S. Corporation v. FOP and others.

(ii)That neither respondent No. 2 or his subordinate are empowered to take cognizance of the matter corresponding to Sections 25, 32, 79 and 195 of the Act as enunciated in S.R.O. 486(I)/2007 dated 09.06.2007, rendering the seizure, preparation of contravention report without power/jurisdiction an as such void and ab-initio.

(iii)That neither respondent No. 2 or his subordinates are being appointed as an officer of Inland Revenue under the provision of Section 30A of the Sales Tax Act, 1990 and Section 230 of the Income Tax Ordinance, 2001 and as such not empowered by the Board through S.R.O. 776(I)/2011 dated 19.08.2011 and section 207 of the Income Tax Ordinance, 2001, resultant, not empowered to act under any provision of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001 for short payment of Sales/Income Tax Post Clearance.

(iv)The duty and taxes involved in the case of the appellant are Rs.4255903.00, the power to adjudicate the case of said amount rest with the Collector of Customs in terms of clause (i) of Section 179(1) of the Act. To the contrary respondent No. 3 issued show-cause notice and passed order-in-original rendering it suffer from lack of power/jurisdiction, hence void and ab-initio and as such coram non judice.

(v)The respondent No. 3 is as well not appointed as Officer of Inland Revenue under the provision of Section 30 of the Sales Tax Act, 1990 and any Section of Income Tax Ordinance, 2001, resultant not empowered to issue show-cause notice for either evaded or short paid amount of Sales Tax and Income Tax under the provision of Sections 11 and 162(1) ibid., rendering that and ordered so passed without lawful authority/jurisdiction, hence coram non judice.

(vi)That it is settled proposition of law that at a time only one order has to remain in field, subsequent order is not permitted to pile upon that as held by the Superior Judicial Fora, for further elaboration referred to the assessment order passed by the competent authority defined in Section 2(a) of the Act under the provision of Section 80 of the Act in exercise of the power delegated upon him through S.R.O. 371(I)/2002 dated 15.06.2002. which is appealable, the proper course of action for either respondent No. 1 or 2 was to file an appeal against that under the provision of Section 193 of the Act, failing to do so the order so passed attain finality and it cannot be disturbed by any authority including respondent No. 3 even through issuance of show-cause notice and passing of Order-in-Original as this is tantamount to reopening the order under the provision of Section 195 of the Act, under which he is not empowered.

(vii)That where the question of classification arise, provision of section 32 of the Act is not applicable, the dispute has to be resolved by putting the case before the classification committee after deliberation directed/ordered in para 2 of CGO 12/2002 dated 15.06.2002 and a public notice to the said effect after ascent of the Board as enunciated in CGO 09/2004 dated 20.08.2004 and thereafter insertion of the said classification in para 3 specifically meant for classification of CGO 12/2002 dated 15.06.2002.

4.Conversantly, the representative of respondents Nos. 1 and 2 strongly supported the act of detention/seizure, framing of contravention report, issuance of show-cause notice and passing of order-in-original and jurisdiction and powers under the provision of Section 179 of the Act and under the Sales Tax Act, 1990 and Income Tax Ordinance, 2001 and opined that these are valid, legal in all aspect and as such should be maintained.

5.Heard, prior to dilating upon the merit of the case, it is beneficial for me to determine the question of detention of the consignment, which had undergone the process of passing of assessment/clearance order under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules by Respondent No.2 or his subordinates under the provision of Section 186 of the Act. Under the expression of the said section a consignment of an importer can only be detained after payment of leviable duty and taxes and order of clearance by the authority defined in the said section or S.R.O 371(I)/2002 dated 15.06.2002, if any adjudication order against the said importer is in field and wherein fine/ penalty have been imposed upon him and which has not paid or in a case wherein contravention report has been framed in an under clearance consignment, for adjudication by the competent authority defined in Section 179 ibid for imposition of fine or penalty. In the absence of availability of both the referred conditions in the provisions, consignment of any importer cannot be detained under Section 186 of the Act. In the case under consideration no such order is available, wherein adjudicating authority imposed any fine or penalty on the appellant, nor any contravention report was prepared for the purpose of adjudication, prior to passing of assessment/clearance order under the respective Provisions of the Act/Rules. To the contrary the consignment of the appellant has been detained under Section 186 of the Act by subordinates of Respondent No. 2, after passing of valid assessment/ clearance order by the authority defined in Section 2(a) of the Act in exercise of the powers conferred upon him through Notification No. 371(I)/2002 dated 15.06.2002, on the premise that the goods so imported are under assessed on the basis of declared erroneous description, PCT and application of incorrect value. Detention under the said pretext is not permissible under the provision of Section 186 of the Act by the officials of Respondent No.2 or any other authority being in derogation of the expression of Section 186 ibid and this stands validated from the judgment 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 03 others and 2015 PTD 560 Messrs O.S. Corporation v. FOP and others that "authorities could detained such goods in respect of which inquiry or investigation was pending and not the goods which had been or were been imported by a person. The subsequent imported goods belonging to a same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remained un-paid. By no stretch of imagination all subsequent import can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In our opinion no such action is permitted under this provision. The Respondent are only authorized to take action for issuance of detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against the person. The procedure and mechanism provided Section 202 of the Customs Act, 1969 is entirely independent of any action taken in terms of Section 186 of the Act. It is not the case of respondent that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's or even the goods covered by the instant petition and thereafter detention notices have been issued. With this the Hon'ble High Court of Sindh declared the detention of the consignment without lawful authority by holding that provision of Section 186 of the Customs Act, 1969 did not empowers the authority to do so." And "where no fine or penalty has been imposed or is even under consideration the provision of Section 186 are not relevant" .. and "the authorities acting on a hunch have detained goods at the exit gates even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totally contrary to the provision of the Act 1969." By gaining strength from the expression of Section 186 and the law laid down, I, declare that Respondent No. 2 and his subordinates were not empowered to detain the subject consignment of the appellant for seizing subsequently under Section 168(1) for preparation of contravention report and initiation of adjudication proceeding under Section 180 of the Act. This illegal act renders the entire exercise right from detention till passing of order-in-original by Respondent No. 3 are without lawful authority and jurisdiction. Hence, void and ab-initio and as such coram non judice.

6.That as regard to the core issue of powers and jurisdiction, which is of vital importance for the health of the case. The respondent No. 2 and his subordinates drive powers for functioning within the territory of Pakistan from Notification No. 486(I)/2007 dated 09.06.2007, for thwarting the act of smuggling, this does not means that they have unfettered powers to intercept and detain the goods cleared by the Officials of Clearance Collectorate after completion of codal formalities and realization of the leviable duty and taxes, for delivery to the importer through his representative either in the terminal or their office. Their jurisdiction in fact is only restricted to the areas falling outside the purview of Sections 9 and 10 of the Customs Act, 1969 and beyond 5 kilometers of the border of India and IRAN as expressed in Section 177 of the Customs Act, 1969 and Notification No. 188(I)/83 dated 12.12.1983. By not levelling allegation of smuggling as defined in Section 2(s) of the Act in the contravention report and invoking of the same in the show-cause notice, the officials of respondent No. 1 cannot assume powers of seizing the goods under the provision of Section 168(1) of the Act. Since, in the instant case allegation of smuggling as defined in Section 2(s) "smuggle" means to bring into or take out of Pakistan in breech of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon", has not been levelled. The official of respondent No. 2 are not empowers to exercise powers under the provision of Section 168(1) ibid, which could only be exercised upon invoking the provision of Section 2(s) ibid. In the given circumstances of the case, the goods in question could not even be seized by the respondent No.2 or his subordinates. The respondent No. 2 and his subordinates stretched their powers beyond the allotted sphere and applicable provision of the Act and the Notification No. 486(I)/2007 dated 15.06.2007. This is not permitted unless enabling provisions to the said effect is available in the Act or notification. This unlawful act of the Officials of respondent No. 2 is an act of high handedness, abuse of powers being in violation of the provision of law, hence, void and ab-initio and as such coram non judice. For reaching at the said conclusion I am indebted from the observation available in reported judgments PLD 1971 SC 184, PLD 1976 Supreme Court 514, PLD 1991 Supreme Court 630, 1992 ALD 449(1) Karachi, PLD 2001 Supreme Court 514, 2004 PTD 624, 2005 PTD (Trib.) 135, 2006 SCMR 129, 2010 PTD (Trib.) 1636, 2010 PTD 465, 2010 PTD (Trib.) 2158, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 1680, 2011 PTD (Trib.) 2086, 2014 PTD (Trib.) 1566.(Emphasis supplied by me)

7.The Board has not delegated powers to the respondent No. 2 under the provision of Sections 32 and 79 of the Customs Act, 1969, which are incorporated in the contravention report and were invoked in the show-cause notice by respondent No. 3 because Section 32 speaks about (false statement, error etc.) and Section 79 (Declaration and Assessment for Home Consumption Warehousing) and is a machinery Section and define the procedure for filing of GD by the importers. Whereas, for reopening of an appealable order, powers under Section 195 of the Customs Act, 1969 have been conferred on either the Collector of Customs or Board. Despite of no powers under Sections in discussion, the Officials of respondent No. 2 reopened the assessment order passed by competent authority under the provision of Section 80 and Rule 438 of the Act/Rules. The mode and manner in which the respondent No. 2 and his subordinates operates is nothing more than creating a situation of anarchy, which cannot be endorsed under any circumstances because this will encourage the other organs of the FBR to encroach the jurisdiction of another independent organ and exercise their powers despite non availability under the provision of the Act and the Rules and Regulation framed there-under. This blatant act of respondent No. 2 is nothing more than transgression of the powers of the authorities, powers to whom are vested under Sections 32 and 195 of the Customs Act, 1969 and notification No. S.R.O. 371(I)/2002 dated 15.06.2002. Therefore, detention/seizure and subsequently preparation of contravention report by respondent No. 2 and issuance of show-cause notice/passing of order-in-original by respondent No. 3 and piling there upon order-in-appeal by respondent No. 4 are without powers/ jurisdiction and lawful authority and as such null, void ab-initio and coram non judice.

8.Upon perusal of Section 30A of the Sales Tax Act, 1990 and Section 230 of the Income Tax Ordinance, 2001, I have observed that in the matter of Sales Tax and Income Tax, the legislature has established a separate watch dog authority namely Directorate General of Intelligence and Investigation -Inland Revenue. Officer of which have been delegated with the powers for exercising under the different provision of Sales Tax, 1990 and Income Tax Ordinance, 2001, through S.R.O. No. 776(I)/2001 dated 19.08.2011 and Section 207 of the Income Tax Ordinance, 2001. Despite having no powers under the provision of Sales Tax and Income Tax, the respondent No. 2 and his subordinate invariably encroach the jurisdiction of Director General of Intelligence and Investigation- Inland Revenue, which is an act of usurpation / transgression and renders the whole exercise right from detaining the goods till passing of order-in-original as without lawful authority and jurisdiction, hence void and ab-initio and of no legal effect and this has also been held by Superior judicial fora in countless reported judgments, reference is made to 2014 PTD 1733 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 SRO with that the Hon'ble High Court of Sindh declared Notification No. 775(I)/2011 ultra vires to the Sales Tax Act, 1990".

9.I have also noticed that the respondent No. 3 in the show-cause notice has invoked Sections 3, 4, 33 and 34 of the Sales Tax Act, 1990 and Section 148(1) of the Income Tax Ordinance, 2001 and that also intentionally, while ignoring the fact that although Section 3 of the Sales Tax Act, speaks about scope of tax and when that has to be paid and by whom, Section 4 denotes "zero rating" section 33 contains penal clauses applicable upon invoking of charging/relevant section of the Sales Tax Act, 1990 and Section 34 "Default Surcharge". none of the section are relevant in the case in question, being either machinery or out of context. Even otherwise, to take cognizance of the contravention of these section rest with the appropriate authority of Inland Revenue Services. Simultaneously, the invoked Section 148 of the Income Tax Ordinance, 2001 is also a machinery section by virtue of containing procedure for collection of Income Tax levied at import stage on the value determined either under Section 25 or with the application of valuation ruling issued by the Director, Directorate General of Valuation through express under Section 25A of the Act by the authorities expressed in subsection (8) of Section 148 of the Income Tax Ordinance, 2001.Therefore, no charges under these sections can be invoked, issuance of show-cause notice on the basis of irrelevant sections, renders it void and ab-initio and of no legal effect as held in reported judgment 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.That it has also been contended that Respondent No. 3 has no mandate to issue show-cause notice in the matter of Sales Tax/Income Tax. Whereas, Respondents are of the view that incorporation of the word "tax" in Section 32(2) and (3) and 179 of the Act and the clarification issued by the Board vide C.No.3(32)Tar-1/90 dated 06.08.2012 and legal opinion of Ministry of Law vide No. F.242/2012-Law.I dated 11.07.2012 is sufficient for assuming powers under the charging Sections of Section 11 of the Sales Tax Act, 1990 and 162(1) of Income Tax Ordinance, 2001. Upon perusal of Section 32(2) and (3) of the Customs Act, 1969, I have observed that although the word "tax" is available, this does not empowers the Respondent No. 3 to assume powers under the provision of Section 11(2) & (3) of the Sales Tax Act, 1990 and 162(1) of the Income Tax Ordinance, 2001 unless Legislature appoint him as "Officer of Inland Revenue/Commissioner of Income Tax", who have powers under these Sections to take cognizance in the matter relating to Sales Tax and Income Tax, it is to be noted that the word 'tax" used in Section 179 of the Act is for exercising powers on the basis of involved amount of duty and taxes by the appropriate adjudicating authority defined in subsection (1). Therefore despite of insertion of the word taxes, the adjudicating authority including the Respondent No. 3 has to issue show-cause notice within the respective applicable provision of the Customs Act, 1969 and not under the charging provision of Section 11 of the Sales Tax Act, 1990 and Section 162(I) of the Income Tax Ordinance, 2001. Even otherwise, the Respondent No. 3 has also relied upon clauses (14) and (14A) of Section 156(1) of the Act, applicable in the case of mis-declaration falling within the ambit of Section 32 of the Customs Act, 1969. These clauses cannot invoked in the matter of Sales Tax and Income Tax falling under sections 11 and 162(1) ibid.

11.For further clarity of the issue I have scrupulously gone through the provision of Section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 and observed that Respondent No. 3 has not been appointed as an Officer of Inland Revenue under these Sections. Resultant, he is not empowered to exercise the powers under Section 11 of the Sales Tax Act,1990 and Section 162 (1) of the Income Tax Ordinance, 2001, which empowers Officer of Inland Revenue/ Commissioner of Income Tax to initiate adjudication proceeding for recovery of evaded or short collected/paid Sales Tax/ Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Hence, Respondent No. 3 is not empowered to lay hands on any matter falling under the ambit of Section 11 of the Sales Tax Act, 1990 and Section 162 (1) of the Income Tax Ordinance, 2001. Reliance of Respondents on the clarification of the Board vide C.No.3(32)Tar-1/90 dated 06.08.2012 and opinion of the Ministry of Law vide No. O.M. No. F.242/2012-Law-I dated 11.07.2012 lend no help as Board and Ministry of Law and Justice have no mandate to interpret the provision of the Act or amend the provision. It can only give opinion, it is for the judicial fora to interpret the provision of statute and our opinion stood validated from the reported judgment 2005 PTD 2462 M/s. 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". Whereas in reported judgment 2016 PTD (Trib.) 107 Qazi CNG Station, Gujrat and another v. Directorate General of Intelligence and Investigation-FBR, Karachi and 02 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". Assuming powers on the strength of letter of the Ministry of Law and Justice is palpably illegal beside fatal to the health of the case. Even otherwise, the letter of the Ministry of Law and Justice speaks about collection of Federal Excise Duty at import stage in the same manner and at the same time, as if it is a duty of customs payable under the Customs Act, 1969 (IV of 1969) and for collection of the same the provision of Section 31A also apply. Reference of Section 7 of the Federal Excise Act, 2005 has also been given simply for clarification that for collection of import duty provision of Sales Tax Act, 1990 is applicable. The emphasis in the O.M. is levy and collection. Therefore, to further elaborate and settling the issue to its logical conclusion, I add while referring to Section 6 of the Sales Tax Act, 1990 and 148 of the Income Tax Ordinance, 2001 through which the Clearance Collectorates are empowered to collect the taxes on the imported goods as like custom duty. These sections least empowers the Officers of Customs including 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 with these type of recoveries 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, by the authority expressed therein i.e. Officer of Inland Revenue/Commissioner of Income Tax under subsections (3) and (4) of Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. In these sections neither Officer of Customs and Respondent No. 3 figures anywhere. 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. Resultant, the Customs Collectorates does have powers to collect, Sales Tax and Income Tax as duty at import stage, conversantly, to the plea that 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 based on mistaken belief, infact the customs Collectorate could recover the amount of Sales Tax and Income Tax 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 Section 18 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 under sections 11 and 162(1) ibid. and this stood validated from reported/unreported judgments i.e. (i) C.P. No. D-216/2013 Messrs Lucky Cement Ltd. v. Federation of Pakistan and others (ii) 2010 PTD (Trib.) 2086; Messrs Global Marketing Services and another v. Model Customs Collectorate and another, (iii) SCRA No. 01/2010 Collector of Customs, Islamabad v. Global Marketing Services and another, v. Model Customs Collectorate and another, (iv) 2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others (v) 2015 PTD 702 Muhammad Measum and others v. FOP and 2 others (vi) 2016 PTD (Trib.) 925 Abdul Aziz and Brothers, Karachi v. Directorate General I&I-FBR (vii) 2016 PTD (Trib.) 969 Asif Textile Trading v. Directorate General I&I-FBR, (viii) 2016 PTD (Trib.) 843 Muhammad Ilyas v. Director General of PCA, Karachi, (ix) 2016 PTD (Trib.) 1008 Phillip Morris (Pakistan) Ltd., Karachi v. Additional Collector of Customs, (x) 2016 PTD (Trib.) 2125, Al-Fajer Associates v. Directorate General of Intelligence and Investigations-FBR (xi) 2011 PTD (Trib) 110 Messrs AGP (Pvt.) Ltd., v. Additional Collector of Customs, Karachi, (xii) Appeal No. K-1343/2015 Messrs Rightway Trading Company, Karachi v. Deputy Collector of Customs, MCC of Appraisement-West and 03 others.

The opinion formed by me also have the validation of the judgments reported at 1990 PTD 29, 2005 PTD 23 and in 2007 PTD 250 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 2005 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 129 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 and cases reported at that the exercise of jurisdiction on this point by Respondent No. 3 is without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of Order-in-Original are ab-initio void and as such coram non judice on this point also.

12.Upon passing of assessment order under Section 80 and Rule 438 of the Act/Rules on 19.04.2016, 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 preparing contravention report overlapping assessment order dated 19.04.2016, for initiation of adjudication proceeding, on the basis of which Respondent No. 3 issued show-cause notice and passed order-in-original. The only course available under law for Respondents Nos. 1 and 2 were to challenge the assessment order before the Collector of Customs (Appeals) under section 193 of the Act in exercise of the powers delegated upon them. In the filed appeal, Respondent No. 1 or 2 are 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 adhering prescribed method available in the Act the Respondents Nos. 2 and 3 reopened the assessment/clearance order under Section 195 of the Act, under which no powers are vested either of the Respondents i.e. 2 and 3. 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." The CPLA No.105-K of 2014 filed by Collector of Customs and others against the order of the High Court has been dismissed by the Hon'ble Supreme Court of Pakistan while refusing leave to appeal. It is also settled proposition of law that in the presence of an appealable order, fresh order cannot be passed even in the shape of reassessment order or through issuance of show-cause notice under section 180, while exercising powers either under the provision of Section 80(3) or Section 179 of the Act. These acts are piling upon multiple orders on the existing appealable order 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 against the assessment order dated 19.04.2016 as elaborated above by Respondent No. 1 on or before 18.05.2016. The transaction stood passed and closed and attain finality and cannot be disturbed. For reaching at the decision we 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 by 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 dated 30.05.2016 passed by Respondent No. 3 for piling upon an existing appealable order is without lawful authority and jurisdiction and as such void and ab-initio and of no legal effect.

13.That if the similar/identical goods of the appellant were cleared by the respective Clearance Collectorate as per the description given in the instant consignment and under PCT 8526.9100 in the past as evident from the para 3 of the order-in-original, the subject consignment was correctly assessed/cleared by the Official of Respondent No. 1 being just and appropriate as it is settled proposition of law that "Custom Authorities are supposed to adhere to their own precedent in administering taxing Statute". The said opinion was held by the Lahore High Court Lahore in reported judgment PLD 1977 Lahore 1392 Nazir Ahmed Tajdin v. Deputy Collector of Customs, Lahore and 2 others respondents, while allowing the petition No.585 of 1977 on 23.07.1977. It is also now well settled law that transmitting of erroneous PCT is not an act of misdeclaration and no charge under the provision of Section 32 of the Customs Act, 1969 can be invoked. In 2002 MLD 180 State Cement Corporation v. GOP, wherein, Hon'ble Late Justice Sabihuddin Ahmed held in cleared terms that "if the wisdom of Customs Authorities for invoking Section 32 for not giving correct declaration is acceded to and that no responsibility lays upon the hierarchy of the Customs officials to levy and assess the duty according to law. The provisions of Section 80(1) of the Customs Act, 1969 in such a state of mind would become redundant", further held that " we are rather amazed at the line of reasoning put forward to the effect that while an assessee is required to interpret the law and relevant notification correctly and could be held guilty of a penal offence for not doing so in terms of Section 32(1) of the Customs Act, no responsibility of any kind would devolve on the customs officials. We may add that in case of short levy or evasion became possible due to collusion of some customs officials the mere fact that no such customs official involve and no notice was served in terms of Section 32 of the Customs Act, indicate that the entire exercise was mala fide". Likewise, in Sadaat Khan v. FOP (2014 PTD 1615) it was held that "Interpretation of notification as well as classification of the goods did not falls within the definition of "misdeclaration," Notwithstanding, neither respondent No. 2 or his subordinates nor respondent No. 3 is empowered to classify the goods, which they did as classification does not falls within their domain and jurisdiction for which specialized department and or bodies have been established by the FBR (2014 PTD 1615). For settling the dispute of classification which arouse in the instant case, the proper course of action available with the respondent No. 2 and his subordinate was to refer the case to the classification committee as ordered in para 2 of CGO 12/2002 dated 15.06.2002, which after deliberation is empowered to classify the goods and the committee after reaching at decision in this context would had placed the finding before the Collector of Customs, Appraisement East, upon whom it is mandated to refer that to the Board for approval prior to issuance of Public Notice as ordered by the Board in CGO 9/2004 dated 20.08.2004 to the 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." The essence and spirit of CGO 09/2004 was to curtail the powers of the Collectors, who use to issue Public Notices and Standing Orders frequently in derogation of the provision of the Act and Rules and Regulation framed there-under and in adherence of the settled principle that the final authority for any order in regards to any aspect including classification rest with the Board. Conversantly, enabling the Board to incorporate the said classification in para 3 meant for classification of CGO No. 12/2002 dated 15.06.2002 for implementation across the board in the entire Collectorate of the Pakistan. Adherence of which is mandatory upon all and sundries inclusive of field formation under the provision of Section 223 of the Customs Act, 1969. The said mechanism is not followed by either respondents Nos. 1 and 3, rendering the classification so determined, nullity to law and as such of no legal effect/jurisdiction and in derogation of para 74 of CGO 12/2002 (Departure from existing practice), hence, void and ab-initio. Therefore, I hold that no occasion was available with the respondent No. 2 or his subordinate to either detain/seize the goods for preparation of contravention report, nor respondent No. 3 was within his right to issue show-cause notice and pass order-in-original.

14.What have been discussed here in above, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio decidendi, I, hereby annul detention/seizure notice and contravention report and vacate the impugned show-cause notice, and set aside the order passed by the forum below being illegal, void and ab-initio, appeal is accordingly allowed with no order to cost.

HBT/59/Tax(Trib.) Appeal allowe