TARIQ AUTO TRADERS, KARACHI VS ASSISTANT DIRECTOR DIRECTORATE GENERAL OF PCA, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2132 (2017)

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

----Ss. 25, 25-A, 26-A, 80 & 83---SRO 659(I)/2007, dated 3-6-2007---Mis-declaration---Prior to completion of assessment, goods declarations were referred for examination and were confirmed by Customs Officials by examination report---Competent authority passed assessment orders under provisions of S.80 of the Customs Act, 1969---Directorate General of Valuation, transmitted view messages to the importer for payment of additional amount of duty and taxes for obtaining clearance---Importer paid those and the inbuilt mechanism of 'WeBoc' passed clearance order; consequent to which the delivery of the consignments were obtained by Clearing Agent---Subsequently, Assistant Director, Directorate General of PCA, purportedly conducted audit of the goods declaration in terms of S.26-A of the Customs Act, 1969; wherein it was observed that the goods in fact fell under PCT 3208.2090 and the benefit of Free Trade Agreement with China under SRO No.659(I)/2007, dated 3-6-2007, was not admissible and the goods so cleared should have been after payment of 20% customs duty---Directorate General of PCA framed contravention report and show-cause notice was issued to the importer with the allegation that he obtained the clearance of the goods under erroneous PCT---Said act of the importer was held to be falling within the ambit of S.32, punishable under S.156(1)(14) of the Customs Act, 1969---Provisions of S.26-A of the Customs Act, 1969, clearly showed that the appropriate designated officer of customs, empowered by the Federal Board of Revenue for conducting audit of the record of the importer in the manner prescribed by the Board in rules, but no rules were framed/issued by the Board despite insertion of S.26-A through Finance Act, 2006; resultantly, the audit of importer's account/record maintained by him under provision of S.211 of the Customs Act, 1969, had to be conducted by the Officials of Directorate of Post Clearance Audit or Directorate General of PCA as per the mechanism provided in the section itself---Prior to proceedings with the said exercise appropriate officer appointed for said purpose, had to either summon or give a notice and reasonable time to an importer for the conduction of audit; but Directorate had not issued to importer any notice or served summons for the purported exercise of audit despite mandated under the law---Said lapse had rendered the order so conducted, which was the root cause of the impugned show-cause notice, as of no legal effect---Thing had to be done as it had been prescribed to be done, in case of doing the same in any other manner, would render it illegal and void ab initio---Assumption of power on the strength of Board's letter, was also erroneous as it lent no help to the Additional Collector of Customs as Board had no mandate to interpret the provisions of Act or amend the provision; it could only give opinion and it was for the judicial fora to interpret the provisions of statute---Upon passing of assessment order under S.80 of the Customs Act, 1969, and thereafter passing of clearance order under S.83 of the said Act by competent authority, it could not be disturbed by any authority for the purpose of preparing contravention report and adjudicate proceedings---Only course left for the respondent No.1, 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 Notification 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 under S.180 of the Customs Act, 1969 while exercising powers under the provisions of S.179 of said Act---Directorate implicated and the Additional Director of Customs charged the importer, for mis-declaration under the provisions of S.32 of the Customs Act, 1969, merely on the basis of assumption/presumption that importers transmitted goods declaration on the basis of erroneous description and PCT, in order to hoodwink the customs and to evade the amount of duty and taxes---Importers, in conduction of examination had no part to play, which was to be carried out by the subordinate of Deputy Collector of Customs with the assistance of officials of Terminal Operation, independently and without any influence---Allegations levelled by Additional Collector of Customs in the show-cause notice, were of general nature and for that reason in support of said notice no intangible incriminating evidence, such as posted examination reports, copies of images, which was vital in such type of cases, were annexed with the show-cause notice or even placed on the record of the Tribunal on the date of hearing---Appellate Tribunal, allowed appeal, show-cause notice providing the basis thereof for impugned order, was vacated/set aside, in circumstances.

[Case-law referred].

(b) Jurisdiction---

----Exercise of---Exercise of jurisdiction by an authority, was mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice.

[Case-law referred].

Nadeem Ahmed Mirza for Appellant.

Azhar Abbas, A/O/ D/R for Respondents.

Date of hearing: 11th July, 2017.

JUDGMENT

TAHIR ZIA, MEMBER (JUDICIAL-II).---Through this order, I intend to dispose off Appeal bearing No. K-24/2016 directed against Order-in-Original No. 324/2016 dated 17.11.2016 passed by Additional Collector of Customs, Adjudication-I, Customs House, Karachi.

2.Briefly facts are the appellant imported 06 consignment of Spray Paint falling under PCT 3208.9090 from China, Goods Declaration (here-in-after to be referred as GD) were filed by his clearing agent upon receipt of the goods at KICT with the MCC of Appraisement-West, which were numbered KAPW-HC-1244 dated 09.07.2013, KAPW-HC-56186-06.11.2013, KAPW-HC-86030-08.01.2014, KAPW-HC-131442-10.04.2014, KAPW-HC-63496-09.10.2015 and KAPW-HC-115720-26.12.2015. Prior to completing assessment, the GD's were referred for examination as expressed in Section 198 of the Customs Act, 1969 (here-in-after to be referred as Act) and Rule 435 of Sub-Chapter (III) of Chapter XXI of Customs Rules, 2001 (here-in-after to be referred as Rules). The declarations were confirmed by the Custom Official posted at KICT, on the strength of pasted examination report in the reservoir of the GD's, the competent authority as defined in Section 2(a) passed assessment orders under the provision of Section 80 and Rule 438 of the Act/Rules with the application of determined value of Spray paint by the Director, Directorate General of Valuation in terms of Section 25A of the Act, vide Ruling No. 649/2014 dated 26.03.2014 and view messages were transmitted to the appellant payment of additional amount of duty and taxes for obtaining clearance the appellant paid those and the inbuilt mechanism of WeBOC passed clearance order as per the expression of Section 83 and Rule 442 of the Act/Rules. Consequent to which the delivery of the consignment were obtained by the clearing agent from KICT were delivered at the warehouse of the appellant. The Assistant Director, Directorate of PCA (here-in-after to be referred as respondent No. 1) purportedly conducted audit of the GD's of the appellant in terms of Section 26A of the Act, wherein it was observed that the goods imported by the appellant infact falls under PCT 3208.2090 and the benefit of Free Trade Agreement with China (here-in-after to be referred as FTA) under S.R.O. 659(I)/2007 dated 03.06.2007 is not admissible and the goods so cleared should had been after payment of 20% Custom Duty, 17% Sales Tax, 3% Additional Sales Tax & 6% Income Tax as against paid on the basis of declaration/assessment order i.e. Custom Duty 12.5%, 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. 1,014,907.00. Based on the said opinion audit observation dated 04.04.2016 was issued to the appellant, which was replied by vide letter dated 13.05.2016, through which arrived opinion was disputed 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 1, who marked that to the respondent No.3, who issued show-cause notice dated 28.07.2016 with the allegation that the appellant obtained the clearance of the goods under erroneous PCT, on which benefit of FTA was available as against actual PCT 3208.2090, on which no benefit of FTA is available and Customs Duty has to be paid @ 20%, Sales Tax @ 17% Additional Sales Tax @ 3% and Income Tax @ 6%, This cause short payment/revenue loss of Rs.1,014,907.00 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 special Procedure 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 17.08.2016 on which respondent No. 3 sought comments from respondent No. 1, which were submitted vide dated 17.08.2016, the appellant consultant rebutted those vide letter dated 13.10.2016, the respondent No. 3 disagreed with the line of argument of the appellant and passed order dated 17.11.2016, through which he held the charges as levelled in the show-cause notice under Section 32(2) of the Act, Section 33(5) of the Sales Tax Act, 1990 and Sections 148 and 182 of the Income Tax Ordinance, 2001. Para 6 of the Order is relevant and as such reproduced here-in-under:--

"6 I have examined the case record and considered written/verbal argument put forth by the both side. The department claimed that the respondent cleared six consignments of Aerosol Spray Paint under PCT 3208.9090 after paying Customs Duty at 12.5% in terms of concessionary S.R.O. 659(I)/2007 dated 03.06.2007, whereas the imported goods are actually classifiable under PCT 3208.2090 attracting Custom Duty @ 20%, Sales tax @ 17, Additional Sales Tax @ 3% and Income tax @ 6%. The images uploaded in the WeBOC System clearly shows "that the Aerosol Spray Paints" are acrylic based hence, not covered under declared PCT Heading 3208.9090 or SRO No. 659(I)/dated 03.06.2007. The evaded amount of duty and taxes are recoverable from the respondent. On the other hand the respondent argues that the impugned goods were examined and out of charged by the Clearance Collectorate under the declared PCT and concessionary SRO, while Custom Officer cannot effect recovery of Sales Tax and Income tax once clearance has been allowed moreover, the GD out of charged under Sections 80 and 83 of the Customs Act, 1969 was not reopened under Section 195 of the Act ibid before proceeding for recovery of allegedly evaded amount the contention of the respondent are not tenable under law and without merit. The DR's statement that images of the goods taken at examination stage shows the Aerosol Spray Paint to be acrylic based." Is not denied by the respondent. As per the Customs Tariff Acrylic based paint are classifiable under PCT heading 3208.2090. therefore, I uphold the contention of the department regarding misdeclaration of PCT on the basis of Customs Tariff which provides specific PCT heading for impugned goods instead of general heading declared by the importer/respondent. As regard the argument regarding power of the customs officer for recovery of Sales Tax amount it is evident that under Section 6 of the Sales Tax Act, 1990 sales tax on imported goods shall be charged and paid in the same manner and at the same time as it were a duty of customs payable under Customs Act, 1969 and the provision of the said Act shall apply in so far as they relates to collection payment and enforcement including recovery thereof. Furthermore, Section 179 of the Customs Act, 1969 read with SRO 232(I)/1991 dated 10.03.91 issued under Sections 30 and 31 of the Sales Tax Act, 1990 empowers the appropriate officer of Customs to order recovery of duty and taxes not levied short levied or erroneously refunded, when read in conjunction with Section 32 of the Customs Act, 1969. Similarly, Custom Officer are empowered to take cognizance of all cases of duty taxes evasion as per Boards letter C.No. 3(32) TAR-I/90 dated 06.08.2012. regarding the issue of reopening of cases under Section 195 of the Customs Act, 1969. It is clear that provision of Sections 32 and 32A of the Customs Act, 1969 are independent and exclusive in jurisdiction from Section 195 ibid, thus, for recovery of lost revenue in terms of Sections 32, 32(A) ibid. the question of re-opening under Section 195 of the Customs Act, 1969 does not arrives. Hence in view of the factual position presented by the Department viz a viz correct PCT heading and in the absence of any substantive material provided by the respondent. The charged levelled in the show-cause notice stands established. The importer is directed to deposit the evaded amount of duty and taxes amounting to Rs. 1,014907.00 in the Government Treasury along with default surcharge to be calculated by the department at the time of payment under Section 32(2) of the Customs Act, 1969 read with sections 33(5) and 34 of the Sales Tax Act, 1990 and Sections 148 and 182 of the Income Tax Ordinance, 2001 failing to which action may be initiated against to respondent under Section 202 of the Customs Act, 1969 notified vide SRO 450(I)/ 2001 dated 18.06.2001. A penalty of Rs. 200,000/- (Rupees, Two hundred thousand) is also imposed on the importer for violation of aforesaid provision of law.

3.Being aggrieved and dissatisfied with the Order-in-Original, the appellant filed the instant appeal before this Tribunal on the grounds incorporated in the memo of appeal. The appellant's counsel's further argued that on the basis of grounds of appeal and facts, the instant appeal may kindly be accepted and the Order passed by the adjudicating authority may kindly be set aside in the interest of justice.

4.No cross objection under subsection (3) of Section 194A of the Act have been submitted by either of the respondent within the stipulated period prescribed therein. Instead the respondent No. 1 submitted comments on the grounds of memo of appeal, which are placed on record of the case for consideration and perusal at the time of authoring judgment. The representative of the respondent No. 2, adopted the arguments of the representative of respondent No. 1. They further argued that the order passed by the authority below is correct in facts and law. Therefore, need not to be disturbed and be maintained while dismissing the appeal.

5.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 record of importer and on the jurisdiction/powers of 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 Clearance Collectorate/respondent No. 2 or his subordinate as per the enunciation made in Section 6 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 any Section of the Income Tax Ordinance, 2001.

6.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. Todate no Rules are framed /issued by the Board despite insertion of Section 26A in 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 SRO 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 order 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 and another query was put to 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's available in the data reservoir maintained by PRAL under Rule 110 of Rules, upon this the representative of respondent No. 1 was asked 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 2002 PTD 2457 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".

7.That in regards to the second part of my observation available in para 5 supra, 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 as per Section 29(2)(b) of Federal Excise Act, 2005 and Section 228 of the Income Tax Ordinance, 2001, 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 Federal Excise and Income Tax by the respondent No. 2 without powers/jurisdiction and as such coram non judice. Our opinion stood vindicated from the latest reported judgment 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 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 in the capacity of either Additional Director or Deputy Director of PCA, which are non existent in column No. (3) of Notification No. 42(I)/2010 dated 23.01.2010, rendering the same without power/jurisdiction. Hence ab initio void and coram non judice. Therefore, entire proceeding right from Audit, Audit observations, contravention reports 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, SBLR 2002 Karachi 5 in Messrs Unitex Tower Factory v. The Collector of Customs (Appeals ) and others, K-106/03 in Messrs 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.

8.The Section 179 of the Act expresses that the powers of adjudication has to be determined by the authority adjudicating the case on the basis of "amount of duty and taxes involved excluding the conveyance. In the instant case the amount of duty and taxes involved are Rs. 5,652,175.00 (paid upfront duty and taxes of Rs. 4637274 + Rs. 1,014,907.00 shown short paid amount of duty and taxes. Case of such amount falls within the powers of Collector of Customs as per clause (i) of subsection (1) of Section 179 of the Act. To the contrary, the respondent No. 3 issued show-cause notice and passed order-in-original by usurping the powers of Collector, which is not permitted under law. Nobody is allowed to usurp the powers of the defined Adjudicating Authority. Rendering the act of issuance of show-cause notice and passing of order-in-original in the instant case without power/jurisdiction, hence ab initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517, PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, 2004 CLD 373, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636, 2011 PTD (Trib.) 2114, 2011 PTD (Trib.) 2557, 2010 PTD 465 and 2014 Supreme Court 514. (Emphasis supplied)

9.I have also noticed with great concern that the respondent No. 3 in the show-cause notice have 3, 6, 7, 33 and 34 of the STA, 1990 and Section 148 of the ITO, 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) 88 Taxation 128 (Lah), 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 neither respondent No. 1 nor respondent No. 3 figures anywhere 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, in these sections respondent No. 3 least figures anywhere. The appellant consultant during the course of adjudication abreast him about the said expressed provision of law and asked him to restrict himself to the extent of the respective Section of the Act, he ignored that and insisted upon that he does have the jurisdiction and power of recovery of Sales Tax and Income Tax at belated stage and in the impugned order he extent justification for the said act by refereeing to S.R.O. 232(I)/1991 dated 10.03.1991, Boards letter C.No. 3(32) TAR-I/90 dated 06.08.2012 and Section 6 of the Sales Tax Act, 1990. Therefore, it is quite apt to comment on the applicability, legality and the spirit of those, prior to reaching at the decision that as to whether the respondent No. 3 has any jurisdiction in recovery of short paid/evaded amount of Sales/Income Tax falling under the ambit of Section 11 of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001.

Prior to promulgation of Sales Tax Act, 1990 through Finance Act, 1991, it was called the Sales Tax Amendment Act, 1990 (Act VII of 1990), which amended Sales Tax Act, 1951, (Act III of 1951). Since, no separate Collectorate were formed, the job of collection and enforcement of the sales tax was entrusted to the Collectorate of Federal Excise and Land Customs, in case of non availability of the said Collectorate in any city of Pakistan, the Collector of Customs of the Dry Port of the said city was entrusted with the job of enforcement and collection of Sales Tax and in order to exercise the powers under the Sales Tax Act, 1990, the FBR designated the Officers of Customs under Section 30 and delegated powers under Section 31 of the Sales Tax Act, 1990 through S.R.O. No. 232(I)/1991 dated 10.03.1991 and this was done due to the reason that at that point of time the Gazetted Officer of Federal Excise and Land Customs and Sea Customs were transferred/posted by the Board in any of the Collectorate. Subsequently, the Collectorate of Federal Excise was reformed and was named as Collectorate of Federal Excise and Sales Tax, the officer appointed therein under the respective Section of the Federal Excise Act, 2005 and Section 30 of the Sales Tax Act, 1990 were re-designated as "Federal Excise Officer " and Officer of Sales Tax under subsection (2) of Section 29 of the Federal Excise Act, 2005 and Section 31 of the Sales Tax Act, 1990. Now the Officers exercising the powers under Sales Tax Act, 1990 were designated as " Officer of Sales Tax" as per amendment made through Finance Act, 1996. Finally, in the year 2009 the Federal Government promulgated Finance (Amendment) Ordinance, 2009 (XXII of 2009) through which a separate division was established, namely "Inland Revenue Services" through which three (03) taxes and two (02) Collectorates were merged namely Federal Excise, Sales Tax and Income Tax and Collectorate of Federal Excise and Sales Tax and Commissionerate of Income Tax and through Finance Act, 2010 (XVI of 2010) the post of Officer of Sales Tax was re-designated as "Officer of Inland Revenue". This division was independent and its officer were delegated powers under the respective provisions of the Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Federal Excise Act, 2005. The Federal Government/ FBR to this date have not appointed the Officer of Customs as Officer of Inland Revenue under Section 30 of the Sales Tax Act, 1990, Section 228 of the Income Tax Ordinance, 2001 and Section 29 of the Federal Excise Act, 2005 nor delegated powers to them under Section 31 of the Sales Tax Act, 1990, any Section of the Income Tax Ordinance, 2001 and subsection (2) of Section 29 of Federal Excise Act, 2005. Meaning thereby that powers can be exercised in the matter of Sales Tax, Income Tax or Federal Excise by an authority appointed as "Officer of Inland Revenue" not by "Officer of Sales Tax" which does not exist in the statute i.e. Sales Tax Act, 1990. Therefore, it is immaterial that through S.R.O. No. 232(I)/1991 dated 10.03.1991 CBR (now FBR) appointed the respondent No. 3 as Officer of Sales Tax as the same is not operational as such redundant being in conflict with the parent Act as held in the reported judgment 2000 PTD 399 Superior Textile Mills Ltd. v. FOP that where rules were in-conflict with parent Act, the former must yield to the later and the rules to the extent of inconsistency would be void. The said opinion is further fortified by the Supreme Court in its reported judgment 1982 SCMR 522 Messrs Arjun Salt Chemical v. UC Gharo, wherein their lordship of Supreme Court settled the ratio while observing that "It is now well established principal or statute that rule which are merely subordinate legislation cannot override or prevalent on the parent statute and when ever there is inconsistency b/w the rule and statute the later must prevail". Therefore, I hold that the respondent No. 3 was not empowered to act as Officer of Inland Revenue in the matter of Sales Tax in the presence of existing Sales Tax Act, 1990 in the garb of redundant SRO 232(I)/1991 dated 10.03.1991.

That as regards to assumption of powers on the strength of Boards letter C.No. 3(32) TAR-I/90 dated 06.08.2012 is also erroneous as it lend no help to the Respondent No. 3 as Board 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 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 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". Therefore, assuming powers on the strength of letter of the Board is palpably illegal beside fatal for the health of the case. Even otherwise, the letter's 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 Customs Act, 1969 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, 1990 is applicable.

Reference to Section 6 of the Sales Tax Act, 1990 for short paid or evaded amount of Sales Tax and inscribed therein that "under Section 6 of the Sales Tax Act, 1990. Sales Tax on the imported goods shall be charged and paid in the same manner and at the same time as it were a duty of customs payable under Customs Act, 1969 and the provision of the said Act shall apply in so far as they relates to collection payment and enforcement (including recovery thereof". The respondent No. 3 intentionally added the word "thereof" and subtracted the phrase "of tax under this Act on such goods where no specific provision exists in this Act, apply," from the expression of section 6 of the Sales Tax Act, 1990 in derogation of principal of interpretation of statute and the law laid down by the Superior Judicial Fora that "in interpreting the taxing statute the customs must look to the words of the statute and interpret in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment there is no equity about a tax. There is no presumption as to tax nothing is to be read in, nothing is to be implied. One only look fairly at the language used nothing else to be done", reference is made to reported judgments 1989 CLC 1463; 1990 PTD 29; 1991 PTD 178; 2002 PTD 121; 1999 PTD 1912; (1921) 1 KB 76; 27 TC 205; 1971 PTD 200; PLD 1962 SC 335, PLD 1965 Quetta 10; 2004 PTD 901; 1967 PTD 170; (1972) 83 ITR 700; (1934) 11 ITR 209; (1946) 14 ITR 409; (1928) 3 ITR 23; (1975) 100 ITR 369; (1979) 117 ITR 251; (1983) 139 ITR 1055; 1993 SCMR 274. He also lost sight of the facts that the words "including recovery" were inserted in the Section through Finance Act, 2015 i.e. enforced w.e.f. from 01.07.2015, GD's corresponding to the period prior to 01.07.2015 stood excluded i.e. bearing No. KAPW-HC-1244 dated 09.07.2013, KAPW-HC-56186 dated 06.11.2015, KAPW-HC-86030 dated 08.01.2014 and KAPW-HC-131882 dated 10.04.2014 and no proceeding whatsoever was warranted in those. Notwithstanding, the respondent No. 3 assumed powers in the matter of sales tax under Section 6 on mistaken belief, Section 6 with clarity states that the Sales Tax in respect of the goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if were a duty of customs payable under Customs Act, 1969. Meaning thereby that Sales Tax levied either under the Act or through has to be collected as levied custom duty on the imported goods under Section 18 or 18A and which are notify in the First Schedule of the Act at the same time i.e. at the time of clearance upon filing of GD under Section 79(I) and Rule 433 after passing of valid Assessment Order under Section 80 and Rule 438 of the Act/Rules, validated from the further phrases of the expression " and the provisions of the said Act including 31A thereof, shall, so far as they relates to collection, payment and enforcement". 31A read as:

"31A Affective rate of duty.---(1) Notwithstanding, anything contains in any other law for the time being enforce or any decision of any Court for the purpose of sections 30, 30A and 31, the rate of duty applicable on any goods shall include any amount of duty imposed under sections 18, 18A and 18C, and the amount of duty that may have become payable in consequence of with-drawl of whole or any part of the exemption or concession from the duty whether or before the conclusion of a contract or agreement for sale of such goods or opening of letter of credit in respect thereof.

(2) For the purpose of determining the value of any imported or exported goods, the rate of exchange at which any foreign currency is to be converted into Pakistan currency shall be the rate of exchange enforce on the date immediately proceeding the relevant date to in sections 30, 30A or 31."

That in terms of Section 30, the duty on the imported goods shall be the rate of duty in force on the date on which a GD is manifested for clearance for home consumption under Section 79(1) and that duty has to be calculated under the mechanism provided in Section 31A of the Act and collection of that has to be made prior to passing of clearance order under Section 83 and Rule 442 of the Act/Rules. The literal meaning of collection is to collect, payment is to be paid and Enforcement means to make active or effective to make sure that people do what is required, by (law, Rule etc) to force, meaning thereby that the Clearance Collectorate has to collect and importer has to pay and if he refuse, Clearance Collectorate has to enforce the payment, all these actions has to be under taken at the time of clearance, prior to effecting delivery, that as regard the word recovery inserted through Finance Act, 2015, it essence and spirit and meaning is that if Sales Tax is not being collected/ enforced by the Clearance Collectorate and not paid by the importer, the Officer of Clearance Collectorate is empowered to enforce/ collect that prior to passing of clearance order/effecting delivery. It does not in any manner means that the Officer of Clearance Collectorate are empowered to recover the short paid/evaded amount of Sales Tax post clearance in the manner time of their choice. Validated from the phrase subtracted by the respondent No. 3 from Section 6 of the Sales Tax Act, 1990 and which read as "Where no specific provision exist in this Act apply" Section 11 of the Sales Tax for the said purpose exist and apply in such like situation, in the presence of Section 11 in the Act, containing mechanism for recovery of tax not levied or short levied or erroneously refunded, no proceeding under Section 6 of the Sales Tax Act, 1990 can be undertaken, nor respondent No. 3 is empowered to assume powers for the recovery of tax after clearance of the goods as it solely rest with the authority enunciated therein.

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 no where 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 250 and 2007 PTD 250 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 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 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 2nd 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 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 appellants, 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, 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 Officials conducting the examination who confirmed the declarations and who passed assessment/clearance orders while accepting the declaration as true and correct. If it is presumed as stated in the show-cause notice that the alleged clearance of the goods imported by appellant were on the basis of erroneous description and PCT, that 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 general nature and for that reason in support of those no intangible incriminating evidence such as posted examination reports, copies of images, which was vital in such type of case were annexed with the show-cause notice or even placed on the record of the Tribunal on the date of hearing. Nevertheless for further confirmation of the charges, the representative of the respondent was asked that what is the basis for forming the said opinion, the reply was that the images posted with the examination report, clearly confirms that the goods imported were of acrylic based. Upon this representative was confronted with the query that whether these images were available with the Assessing Officer who completed the assessment after examining those, reply was in affirmative. Consequently, respondents representatives were asked that as to whether determination of description and classification of those does not rest with the Customs Officers in terms of Section 80(1) and Rule 438 of the Act/Rules, which read as "Section 80---Checking of goods declaration by the Customs---(1) on the receipt of goods declaration under section 79, an officer of customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration assessment, and in case of the customs computerized system payment of duty, taxes and other charges thereon" and "Rule 438-- Assessment by Customs Authorities: Where any declaration has been filed under Rule 433 or additional documents have been submitted under Rule 437 the Customs shall satisfied itself as to their correctness including its value, classification claim of exemption, payment of duty and taxes and may re-assess the goods during or after clearance". The reply was in affirmative. This amazed me and to further crystallized the issue the representative were asked to read out the declared description of the goods, to which the description was read out as "Aerosol Spray Paint" and thus were asked that the imported goods were paint or not, reply was in affirmative. This confirmed that the appellant has not made any misdeclaration in material particular and determination of the actual description of the goods and classification of those rest upon the Custom Officer, there least exist an ioata of evidence that the appellant influenced either the examiner or assessing officer for not determining the correct description and classification. In the light of the circumstances of the case, the entire fault of not assessing the goods under correct description and PCT rest with the Customs Officials. The fact of the case proves that the case in question does not falls within the ambit of Section 32(2), instead of error, omission and misconstruction, which falls within the ambit of Section 32(3) of the Act and to adjudicate the case falling under the said section rest with the Principal Appraiser as expressed in S.R.O. 371(I)/ 2002 dated 15.06.2002, resultant, the case stood ousted from the powers of the respondent No. 3, rendering the order void and ab-initio and of no legal effect. Even otherwise, if the duty and taxes has been charged lesser as against actual by the Assessing Officer by virtue of his negligence and in efficiency, recovery whatsoever of the short paid revenue has to be made from them as held in reported judgments 2002 MLD 180 State Cement Corporation v. GOP, wherein, Hon'ble Late Justice Sabihuddin Ahmed held in cleared terms that while observing 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" and 2011 PTD 2220 Collector of Customs, Preventive, Karachi v. Pakistan State Oil Karachi that where their Lordship of Supreme Court held " where huge loss has been caused to Government Exchequer namely due to the negligence of relevant functionaries of the customs department against which action may be initiated by the concerned Collector of Customs for dereliction of duty and being inefficient which amounts to mis-conduct.". Therefore, I have been left with no other option to hold without any hesitation that the respondents miserably failed to prove the allegation as enunciated in Articles 117 and 121 of Qanun-e-Shahadat (10 of 1984) and the law laid down by the Superior Judicial Fora that the person levelling the allegation have to prove those without any exception. Thus and hold that the entire case is based on no evidence as held in reported judgment 1991 PTD 551 that "Any action which is based upon no evidence is not permitted by law". Thus fail the test of judicial scrutiny.

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 order are hereby vacated set-aside with no order as to costs.

15.Order passed and announced accordingly.

HBT/78/Tax(Trib.) Appeal allowed.