ISHAL ENTERPRISES, KARACHI VS ASSISTANT COLLECTOR OF CUSTOMS, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 422 (2016)

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

----Ss. 25 & 193---Customs Rules, 2001, R.117---General Clauses Act (X of 1897), S.24-A---Appeal against assessment order passed by Assistant Collector Customs (Adjudicating Authority) before Collector of Customs (Appeals)/Appellate Authority---Issue was "whether order passed by Appellate Authority against assessment order passed by Adjudicating Authority, conformed to mandatory requirements of S.24-A of the General Clauses Act, 1897 and the settled law---Appellate authority had declared assessment order passed by Adjudicating Authority as invalid and without lawful authority being in derogation of provisions of S.25(5) of the Customs Act, 1969 and R.117 of the Customs Rules, 2001---Order of Appellate authority was completely silent in regard to the arguments, rendering the order as perfunctory, sketchy, slipshod, bald and devoid of any reason and did not conform to the mandated requirements of S.24-A of the General Clauses Act, 1897---Orders which did not contain rebuttal on the ground advanced by appellant and not containing substantial reasons, would show that same had not been passed on "objective consideration"---Said type of order, was treated as illegal, void, arbitrary and result of misuse of authority vested in a public functionary---Such illegal, void and arbitrary order was not acceptable in any system of law---If any authority, court or tribunal gave a finding of fact which was not based on material available on record, same was illegal, arbitrary, perverse and in violation of established principles of appreciation of evidence on record and was not sustainable in law---Principle, that every judicial or quasi judicial finding should be based on reasons, containing the justification for the finding in the order itself, was an established principle of dispensation of justice---Order-in-appeal passed by appellate authority, being in violation of basic principle of good governance and mandatory requirement of S.24-A of the General Clauses Act, 1897, was not only illegal and void, but also not sustainable---Issue was answered in the negative.

[Case-law referred].

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

----Ss. 25, 32, 80 & 81---Customs Rules, 2001, Rr.107, 109, 117 & 438---SRO No.499(I)/2009, dated 13-6-2009---Reliance on goods declaration for passing assessment order---Issue was "whether reliance on goods declaration for passing assessment order under S.80 of the Customs Act, 1969 and R.438 of Customs Rules, 2001 by adjudicating authority was valid/legal and would pass the test of judicial scrutiny"---Adjudicating authority, rejected transaction value as defined in S.25(1) of the Customs Act, 1969, without making recourse to S.25(4) of the Act and R.109(1) of the Rules---By adopting said method, adjucating authority, shifted the onus on itself for proving the declared value of the appellant/importer, as not fair and intimation to the said effect under R.109(3) of the Rules in consonance with the direction contained in Para. 78 of General Customs Order 12 of 2002 dated 15-6-2002 after omitting the name of the local importers of the identical goods---Adjucating authority ignored the provisions of S.32 of the Customs Act, 1969 and SRO No.499(I)/2009, dated 13-6-2009 and failed to analyze the imported goods of the importer, not even on the basis of quantity factor, commercial level factor or both commercial level and quantity factor---Adjucating Authority had not attempted to carry out an exercise as enunciated in Cls.(b)(c) of subsection (5) of S.25 of the Customs Act, 1969, resorting to seller price list and opted for assessing the goods purportedly under S.25(5) of the Customs Act, 1969, but not under R.117---Said Authority took steps under prohibited Cl.(iii) of R.110, rendering the assessment patently perfunctory, whimsical and arbitrary in derogation of S.25(5) and R.117 of the Act/Rules, hence void ab initio---In the absence of valid evidence and attempt of determination of value under S.25(5) of the Act and R.117 of the Rules, Adjucating Authority had no other alternative but to rely upon the goods declaration---Issue was answered in negative.

[Case-law referred].

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

----Ss. 25, 79, 80 & 81---SRO No.494(I)/2007, dated 9-6-2007---Provisional assessment of duty---Issue was 'whether denial of completing the assessment of the appellant/importer's consignment under the provisions of S.81 of the Customs Act, 1969 by the Collector of Customs and Assistant Collector of Customs was in consonance with the expression of said section and the settled law---Section 81 of the Customs Act, 1969, expressed that where it was not possible for the officer of Customs during the checking of goods declaration to satisfy himself of the correctness of the assessment of the goods made under S.79 of the Customs Act, 1969 for reason that the goods required chemical or other test or a further inquiry, an officer not below the rank of Assistant Collector Customs, could order the duty, taxes and other charges payable on such goods provisionally---Law was silent on the point as to what was meant by "provisional determination" and how it was to be made---In the present case provisional determination of value could have been made while securing differential amount of duty, taxes and other charges between the value of identical goods available in Data and payable on the value on which Adjudicating Authority desired to assess subject to finalization upon issuance of valuation advice by the Directorate General of Valuation under the provisions of S.25 of the Customs Act, 1969; in that manner the interest of revenue was fully protected and no undue harassment would be caused to the importer---Purpose of Ss.25 & 81 of the Customs Act, 1969 was to protect the State Revenue in a manner that the Trade and Industry was allowed to run smoothly---Collector of Customs, had not been vested with powers under any provision of the Customs Act, 1969 or any other law to ignore the requirement of the S.81 of the Customs Act, 1969 nor could interpret in accordance with ones whims and wishes---Issuance of direction to Adjudicating Authority to adhere to the provisions of S.81 and complete the assessment of the importer's consignment after securing pay order between the differential amount---Denying completion of goods declaration of the importer by the Adjudicating Authority and direction of the Collector of Customs to Adjudicating Authority not to exercise the powers vested in him under S.81 of the Customs Act, 1969, were patently illegal and without lawful authority/jurisdiction being a derogation of express provisions of S.81 of the Customs Act, 1969---Direction of Collector of Customs, was ab initio void, in circumstances---Issue was answered in the negative---Assessment order passed by Adjudicating Authority and order-in-appeal, which suffered from grave legal infirmities, were declared to be illegal, null and void and against the norms of justice.

[Case-law referred].

Nadeem Ahmed Mirza for Appellant.

Noor Muhammad, Appraiser for Respondent.

Date of hearing: 30th August, 2016.

JUDGMENT

TAHIR ZIA, MEMBER (JUDICIAL-II).---Through this order, I intend to dispose off Appeal bearing No. K-971/2015 filed against Order-in-Appeal No. 10061/2015 dated 04.05.2015 passed by Collector of Customs, Appeals (hereinafter to be referred as respondent No.2) in the appeal filed by the appellant against the assessment order dated 20.12.2014 passed by the Assistant Collector of Customs, Group-I, MCC of PMBQ, Karachi (to be referred as respondent No.1).

2.Briefly facts are the appellant imported (i) 27 kgs Balm (Vicks Vapor Rub and Bengay) (ii) 8370 kgs of Food Supplement (multi-vitamin and mineral dietary) protein on whey of different brands and quality from USA @ US$. 1.35/kg C and (iii) 144 Dozens Shaving Foam of US origin @ US$. 45/kg, US$. 1.35/kg and US$. 1/dozen C&F Karachi against invoice No. HS-144 dated 06.11.2014 and B/L No. MAEU-565019984 dated 06.11.2014. After receipt of shipping documents appellant transmitted Goods Declaration 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 PMBQ and as per pre-requisite deposited upfront duty and taxes of Rs. 725,129.00 on 08.12.2014 vide cash No. C-KPPI-001276, consequent to which GD was numbered as KPPI-HC-29572-08122014. Upon appearance of Goods Declaration on his desktop the Appraising Officer instead of passing assessment order under section 80 and Rule 438 of the Act/Rules opted to get the goods examined first, resultant, he transmitted the GD to respondent No. 1 with his opinion and rationale. The respondent No. 1 gave assent and transmitted the GD to the officials posted at terminal, which confirms the declaration and posted the respective examination report conducted under Section 198 and Rule 435 ibid in the system. The Appraising Officer after examining the declaration, examination report and images assessed item Nos. (i) and (iii) with the application of infield valuation rulings or identical/similar value available in the data maintained under Rule 110 of Chapter IX of the period given in Rule 107(a) of the Rules. On which the appellant has no reservation, hence he accepted those, contrary to the proposition of law, the Assessing Officer completed the assessment of item No. (ii) @ US$. 6/kg on 13.12.2014 and referred it to Principal Appraiser for approval by adducing remarks reading as "assessed as per data and E.R. [KPPI-HC-23942-07112014], the Principal Appraiser attended the GD on 15.12.2014 and upheld the same with the remarks "upheld as per data". Since, the said assessment was not felt inconsonance with the available data, the appellant filed first review under Rule 441 before the Principal Appraiser that the identical/similar goods imported through GD's No. KPPI-HC-11934-02092014, KPPI-HC-19633-15102014, KPPI-HC-3449-16072014, KAPE-HC-98487-05052014 KAPE-HC-12373-06082014 and KAPE-100571-09052014 i.e. within or prior to the period expressed in Rule 107(a) of the Rules. The Principal Appraiser rejected the same without assigning any valid reason in very cursory manner as evident from his remarks dated 15.12.2014, "reviewed upheld". Resultant, appellant filed 2nd review with the submission as was made in the review filed with the Principal Appraiser with the respondent No. 1. He also refused to act rationally and justly and insisted upon to upheld the assessment while relying upon the Goods Declaration No. KAPW-HC-50994-04102014 and KPPI-HC-23942-07112014, inspite no relevance, resultant, appellant requested him to complete his Goods Declaration to the extent of said item under the provision of Section 81 of the Customs Act, 1969 and forward the drawn samples to the Directorate General of Valuation for determination of fair value in terms of 3(b) of S.R.O. 494(I)/2007 dated 09.06.2007. Inspite being the competent authority under the expression of Section 81, he refused to exercise his powers, this adamant attitude compelled the appellant to engage a consultant, who forwarded a representation dated 20.12.2014 to the Collector of Customs, PMBQ with the caption "Unilateral/arbitrary assessment made by the Assistant Collector, Group-I of our client M/s. Ishal Enterprises, Karachi goods namely Food Supplement and Multi-Vitamin @ US$.6/kg as against evidence of US$. 2/kg, despite not permitted under Rule 110 of the Customs Rules, 2001, refusal to complete the assessment under the provision of Section 81 ibid., inspite nullity to its expression GD No. KPPI-HC-29572-08122014". The learned Collector inspite mandated to adduce order on the representation, simply marked that to respondent No. 1 through Additional Collector. Thereafter, the appellant and the consultant saw respondent No. 1 for having knowledge of the outcome of the representation, he informed them that no order on the representation has been given by the learned Collector, instead he has been instructed to endorse the assessment of the Appraising Officer and advise the appellant to avail the remedy available under section 193 of the Customs Act, 1969, in compliance he passed assessment order dated 20.12.2014 and which read as follows:--

"Mr. Nadeem Ahmed Mirza appeared and stated that " the evidence relied upon by the assessing officer is a small quantity apr. 274 kgs as against the instant import is 8370 kg and he further stated that the evidence is not applicable. He further said that the second evidence provided by the AO is also not relevant by virtue of the fact that in that case goods were declared US origin and found were that of HUNGRY origin and assessment was completed at US Dollars 6 while bypassing the process of adjudication process. He also said that that was not acceptable." The case has been examined by me and examined the evidential data, the assessment made by the A.O. is an order under section 80 of the Customs Act, 1969, if the importer has any reservation, he can apply the right of appeal."

3.The order was challenged before Respondent No.2 by the appellant vide Appeal No. Cus-6649/2015/PQ, who disposed off the appeal vide order dated 04.05.2015, by observing in para 3 that:--

"I have examined the case record the main grievances of the appellant has been that Identical goods of other importer were assessed provisionally, whereas their goods has been assessed outright despite their request to Collector. In an identical case vide Order-in-Appeal 9706 dated 12.01.2015, it was held "that the assessment of the goods @ US$. 6/kg is without basis and as such arbitrary, therefore the same is set-aside. In view of the facts that sufficient information to determine customs value is not available, it is directed that goods be released in terms of Section 81 of the Act and the case is referred to Director, Directorate General of Valuation." The present appeal is disposed off in those terms."

4.Being aggrieved and dissatisfied with the impugned Order-in-Appeal the appellant filed the appeal before this Tribunal on the ground incorporated in the Memo. of Appeal, on the date of hearing Mr. Nadeem Ahmed Mirza (Consultants) appeared and contended that:--

(i)The respondent was empowered to assess the appellant goods only with the application of different subsections of Section 25 of the Customs Act, 1969 in sequential manner in the absence of availability of evidential invoice of the same period and country (see expression of Sub-Rule (a) of Rule 107 of the Customs Rules, 2001) which has to be supplied to the person effected as per mandated requirement of law, read with para 78 of CGO 12/2002 dated 15.06.2002.

(ii)That the respondent totally ignored the evidence supplied by the appellant of the identical goods wherein these goods have been assessed by the Customs Collectorate on many occasion @ US$. 2/kg instead passed assessment order on the basis of alien value, rendering the same to be based on unilateral/arbitrary value not permitted under Rule 110 of Chapter IX of Customs Rules, 2001.

(iii)That the respondent in order to justify the assessment order relied upon GD No. 50994-04102014 and KPPI-HC-23942-07112014 are irrelevant due to the fact that the quantity imported in GD No. KAPW-HC-50994-04102014 is for the quantity of 274 kgs whereas the GD No. KPPI-HC-23942-07112014 pertains to Hungry and this GD speaks volume about working of the respondent Collectorate as the declaration made in the GD in question for the origin was USA, whereas found during the course of examination was "Hungry" no contravention as framed for misdeclaration of origin and GD was out rightly completed after consideration as it is not possible without that and due to this act the importer was saved from the process of adjudication, imposition of fine in terms of S.R.O.499(I)/2009 and penalty beside container detention/rental and terminal wharfage/storage charges. Obtaining clearance @ US$. 6/kg was beneficial for him. Even otherwise such tainted GD cannot be made basis for the assessment and if it was made, then the value of import shown in the GD i.e. US$.1/kg as expressed in Rule 110 has to be taken not the assessment, rendering the assessment order so passed by the respondent No. 1 nullity to law and as such no legal effect, hence void and ab-initio.

(iv)The order passed by the respondent shows that these have not been passed with the application of mind and provision of the Act. Instead are non speaking order and did not conforms to the mandated requirement of section 24-A of the General Clauses Act, 1897 and this stood validated from the fact that no rebuttal on the submission made by the appellant consultant has been made either by respondent No. 1 stood validated from the transmitted opinion reading as "The case has been examined by me and examined the evidential data, the assessment made by the AO is an order under section 80 of the Customs Act, 1969, if the importer has any reservation he can apply the right of appeal" or by the respondent No. 2 and this stood proved from the fact that "the appellant at none of his ground has ever stated that his consignment is under assessment, the submission made were that the appeal is preferred after completion of the clearing procedure and the assessment order so passed was assailed before him. He passed order completely contrary to the fact of the case and the relief sought." These type of orders are nothing more than personal and biased opinion contrary to the fact of the case and applicable law because these are not containing substantial reasons and does not show that these were passed on objective consideration. Such type of orders are deem to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily order in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication/Appellate orders are being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law . The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (Trib.) 619.

(v)That the respondent No. 2 was not available with the option to issue direction to complete the assessment of the appellant goods under the provision of Section 81 of the Customs Act, 1969 after clearance of the consignment, except to declare the assessment order passed by respondent No. 1 without basis, arbitrary, in consonance with the order passed by him on 12.01.2015 in order-in-appeal No. 9706.

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

5.No cross objection under subsection (4) of Section 194-A of the Customs Act, 1969 has been submitted by the either of the respondents to this date, instead comments were submitted by respondent No. 1, verbatim of those are reproduced here-in-below:--

(i)That this para is vehemently denied. Actual fact is that appellant was given opportunity of hearing to satisfy their contentions to the respondent No. 1 but they and their consultant failed to do so. The goods have been duly assessed @ US$. 6.00/kg as per law keeping in view of higher WeBOC system data. As there was matter of loss of revenue amounting to Rs. 2570353/- on assessment of goods at minimum value.

(ii)This para is denied on actual facts that false and baseless evidences/proof's cannot be accepted on appellant's wish. Appellant was given opportunity of hearing to satisfy their contentions to the respondent No. 1 but they and their consultant failed to do so. The goods have been duly assessed @ US$. 6.00/kg as per law keeping in view of the higher WeBOC system data. As there was matter of loss of revenue amounting to Rs. 2,570,353/- on assessment of goods at minimum value.

(iii)Denied respondent No. 1 assessed the item No. 02 of GD @ US$. 6.00/kg as per law keeping in view the higher WeBOC system data. As there was matter of loss of revenue amounting to Rs. 2,570,353/- on assessment of goods at minimum value on appellant's wish. The Directorate General of Customs Valuation have also provided the assessment value of similar identical goods @ US$8.40/kg vide letter No. 1/6/2015-1/9211 dated 23.07.2015 as directed by the respondent No. 2 in vide Order-in-Appeal No.10067/2015 dated 04.05.2015. hence, the appellant has no reason to disagree now with the assessment value by the respondent No. 1.

(iv)Same comments as at para (iii) above.

(v)That this para is not related to the answering respondent No. 1

(vi)That this para needs no comments.

6.Rival parties heard and the case record perused along with the citation relied upon. I take up the case for decision and frame following issues for determination.

(i)Whether respondent No. 2 passed any order in the appeal filed by the appellant before him against the assessment order dated 20.12.2014 and whether it conform to the mandated requirement of Section 24A of the General Clauses Act and the law laid down by the Superior Judicial Fora?

(ii)Whether reliance on GD's No. KEPW-HC-50994-04102014 and KPPI-HC-23942-07112014 for passing assessment order under section 80 and Rule 438 by the respondent No. 1 was/is valid/legal and pass the test of judicial scrutiny if analyzed in the light of para 78 of CGO 12/2002 dated 15.06.2002 and section 25(5) and Rule 117 of the Act/Rules?

(iii)Whether denial of completing the assessment of the appellant consignment under the provision of Section 81 of the Act by the Collector of Customs, PMBQ and respondent No. 1 is in consonance with the expression of the aforesaid section and the law laid down by the superior Courts?

7.That as regard to issue No. (i), for determination of the said fact, it is of vital importance to reproduce the order again in spite of available in para 3 supra:--

"I have examined the case record the main grievances of the appellant has been that Identical goods of other importer were assessed provisionally, whereas their goods has been assessed outright despite their request to Collector. In an identical case vide Order-in-Appeal 9706 dated 12.01.2015, it was held "that the assessment of the goods @ US$. 6/kg is without basis and as such arbitrary, therefore the same is set-aside. In view of the facts that sufficient information to determine customs value is not available, it is directed that goods be released in terms of section 81 of the Act and the case is referred to Director, Directorate General of Valuation." The present appeal is disposed off in those terms." (emphasis supplied)

In this order the respondent No. 2 has relied upon Order-in-Appeal No. 9706 dated 12.01.2015, which he passed/issued in the case relating to Goods Declaration No. KPPI-HC-23942 dated 07.11.2014 corresponding to import of food supplement assorted flavor of Hungry origin, which was assessed @ US$. 6/kg. The said assessment order was assailed by the importer under the provision of Section 193 of the Act. The respondent No. 2 upon finding that the assessment made by the respondent No. 1 is void being not supported by valid evidence as defined in para 78 of CGO 12/2002 dated 15.06.2002. Therefore, is arbitrary/unilateral not permitted under Rule 110 of Chapter IX of Rules, set-aside that and directed the Collector of Customs, PMBQ to release the consignment of the appellant provisionally under Section 81 of the Act and refer the case to the Directorate General of Valuation for determination of fair value under the provision of section 25 of the Act in exercise of the powers vested vide clause 3(b) of S.R.O. No. 494(I)/2007 dated 09.06.2007. No order whatsoever, has been passed in the case of present appellant and this stood validated from the emphasis supplied in the reproduced order reading as "The present appeal is disposed off in those terms." It seems this has been done purposely as he was well aware of the fact that the assessment made by respondent No. 1 is patently illegal by virtue of the fact that it had been made in the absence of valid evidence of identical goods of the same country of export and of the period expressed in Rule 107(a) of the Rules as directed in para 78 of CGO 12/2002 dated 15.06.2002, and no option was available with him or with the Collectorate/respondent No. 1 to complete the assessment under the provision of Section 81 of the Act, after out of custom charge of the goods i.e. passing of clearance order under Section 83 and Rule 442 on the strength of assessment order passed by respondent No. 1 under the provision of Section 80 and Rule 438 ibid., which appellant assailed before him. He was left with no other option with the exception of declaring the assessment order passed by respondent No. 1 as invalid and without lawful authority being in derogation of provision of Section 25(5) and Rule 117 of the Act/Rules, which he fails to do and this proves that inspite of merit, he was not inclined to pass a valid and legal order inspite mandated upon him under law. This lackluster attitude confirms with clarity that he has no urge, will, passion and ability to decide the case/dispute put before him for decision. The order is completely silent in regards to the arguments. Rendering his order as perfunctory, sketchy, slipshod, bald and devoid of any reason and did not conform to the mandated requirement of section 24-A of the General Clauses Act, 1897. Orders which did not contains rebuttal on the ground advanced by the appellant and not containing substantial reasons shows it has not been passed on objective consideration. This type of order is always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily order in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record is illegal arbitrary, it is deems to be perverse and is being in violation of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The order-in- appeal passed by respondent No. 2, is being in violation of basic principle of the goods governance and mandatory requirement of section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts relied upon the appellant and are incorporated in para 4(iv) supra. The issue No. (i) is answered in negative.

8.That as regards to issue No. (ii), the respondent No. 1 out-rightly rejected transaction value defined in Section 25(1) of the Act, with out making recourse to Section 25(4) and Rule 109(1) of the Act/Rules. By adopting the said method, he shifted the onus on his shoulders for proving the declared value of the appellant as not fair and intimation to the said effect under Sub-Rule (3) of Rule 109 in consonance with the direction contained in para 78 of CGO 12/2002 dated 15.06.2002 after omitting the name of the local importers of the identical goods. Which he failed to supply and opted to assess the goods on the basis of Goods Declaration Nos. KAPW-HC 50994 dated 04.10.2014 and KPPI-HC-23942-17112014 available in data maintained by the PRAL under Rule 110 of the period expressed in Rule 107(a) of the Rules, which were assessed @ US$. 6/kg. In former GD 274 kgs were imported from USA, whereas, in the later GD 5914 kgs, which in the examination were found to be of "Hungry Origin". The import made through former GD could not be relied upon due to two reasons, firstly its quantity is very small, secondly, it is a stray instance, which cannot be picked upon for the purpose of assessment as held in 1996 (81) ELT 195 SC Basant Industries v. Additional Collector. Likewise later GD is also not reliable due to the fact that in that the goods were found to be of Hungry origin, instead of USA as of appellant. The subject case was of mis-declaration of origin and warranted framing of contravention report for issuance of show-cause notice for completion of adjudication proceeding. The respondent No. 1 ignored the provision of Section 32 of the Customs Act, 1969 and S.R.O. 499(I)/2009 dated 13.06.2009, rationale for giving such favour as against similar cases of other importers is not understood. Irrespective of the pointed out grave illegality the respondent No. 1 assessed the goods at US$. 6/-kg. The importer being aggrieved assailed that before the respondent No. 2, which set-aside the assessment order and ordered completion of Goods Declaration under the provision of Section 81 ibid. Notwithstanding, I am unable to comprehend that as to why the respondent No. 1 ignored the appellant's relied upon GDs Nos. KPPI-HC-11934-02092014, KPPI-HC-19633-15102014, KPPI-HC-3449-16072014, KAPE-HC-98487-05052014 KAPE-HC-12373-06082014 and KAPE-100571-09052014, wherein, identical goods were assessed @ US$. 2/kg for the purpose of assessment in terms of section 25(5)(a) of the Act and Rule 117(1) of Rules reading as "if applying the provision of this subsection, the transaction value of the identical goods in a sale at the same commercial level and substantially the same quantity as the goods being valued shall be used to determine the customs value of the imported goods" and "In applying subsection (5) of Section 25 of the Act the appropriate Officer shall, where ever possible use a sale of identical goods at the same commercial level and in substantially the same quantities as the goods being valued . Where no such sale is found, a sale of identical goods that take place under any one of the following condition may be used namely:--

:A sale at same commercial level but in different quantities;

(i)A sale at different commercial level but in substantially the same quantities; or

(ii)A sale at a different commercial level and in different quantities.

Whereas, Sub-Rule (2) express that having found a sale under any one of the condition referred to in Sub-Rule (1) adjustment shall then be made as the case may be for (i) quantity factor only; (ii) commercial level factor only (iii) or both commercial level and quantity factor. The Sub-Rule further express that for the purpose of subsection (5) of section 25 of the Act, the transaction value of identical imported goods means a value, adjusted as provided in clauses (a), (b) & (c) of subsection (5) of that section, which has already been accepted under subsection (1) of the said Section 25. Whereas, Sub-Rule (4) read as that "a condition for adjustment because of different commercial level or different quantities shall be that such adjustment, whether it leads to an increase or a decrease in the value, be made only on the basis of demonstrated evidence that clearly establishes the reasonableness and accuracy of the adjustment, e.g. valid price lists containing prices referring to different levels or different quantities as an example of this, if the imported goods being valued consist of a shipment of 10 units and the only identical goods for which a transaction value exists involved a sale of 500 units, and it is recognized that the seller grants quantity discounts, the required adjustment may be accomplished by resorting to the seller's price list and using that price applicable to a sale of 10 units. This does not requires that a sale had to have been made in quantity of 10 as long as price list has been established as being bona fide through sale of other quantities." The respondent No. 1 miserably failed to analyze the imported goods of the appellant not even on the basis of quantity factor, commercial level factor or both commercial level and quantity factor . Nor he attempted to carry out any exercise as enunciated in clauses (b) and (c) of subsection (5) of section 25 of the Act or Sub-Rule (4) of Rules i.e. resorting to seller price list and opted for assessing the goods purportedly under section 25(5) of the Act but not under Rule 117 instead under prohibited clause (iii) of Rule 110, rendering the assessment patently perfunctory, whimsical and arbitrary manner in derogation of section 25(5) and Rule 117 of the Act/Rules, hence void and ab-initio. For reaching upon the said conclusion I am fortified from the reported judgment of the Supreme Court of Pakistan reported at 2008 SCMR 438 Collector of Customs, Port Muhammad Bin Qasim v. Zymotic Diagnostic International, Faisalabad their lordship of the Supreme Court held that:--

"for rejecting or refusing to accept the value declared by the consignee in respect of the imported goods, concerned officer is required to give cogent plausible and satisfactory reason for non-acceptance of declared value and rejection thereof cannot proceed on the whims or desire of Officers of Customs Department assessing officer is required to point out some flaw or defect or such circumstances which create doubt with regards to the veracity and correctness of declared value or that same had been under invoiced. In determining or assessing fair value or normal value of such imported consignments, concerned officer is under obligation to take into consideration all necessary factors and circumstances enumerated in section 25 of the Customs Act, 1969, for such determination and assessment."

Their Lordship of the Supreme Court went on further observing that:--

"Nothing was available on record to indicate that the Customs Department had secured or had attempted to secure invoices from other importers who had imported identical or similar consignment in Pakistan with a view to show that the prices declared by such importers greatly varied from prices declared by the respondent. In the absence of such exercise action in rejecting declared value would amount to be an arbitrary and capricious exercise. The custom officer who had to make assessment or determination or fair or normal value of the consignment is of the view that the same cannot be determined otherwise. In view of the impossibility of procuring evidence as referred in that no such attempt was made before passing the order----Custom officer dealing with the case proceeded in a perfunctory, whimsical and arbitrary manner and Customs, Excise and Sales Tax Appellate Tribunal was justified in setting aside the same---High Court also did not commit any illegality or infirmity in accepting order of the Tribunal and dismissing Constitution Petition filed by the authorities---Supreme Court declined to interfere with the Judgment passed by High Court----of fair value-leave to appeal was refused."

In the absence of valid evidence, and attempt of determination of value under subsection (5) of Section 25 of the Act and Rule 117 of the Rules, the respondent was not available with any alternative with the exception of relying upon the Goods Declaration referred by the appellant, which with clarity answer to the quantity factor, commercial level factor or both commercial level and quantity factor and he was bound to complete the assessment of the appellant consignment at US$.2/-kg being in consonance with the enunciation made in the aforesaid provision of the Act/Rules and even as per rule of consistency/uniformity and as per the essence and spirit of Article 18 of the Constitution of Islamic Republic of Pakistan and so of Articles 4 and 25 which is not visible from the made assessment by the respondent No. 1, instead confirms giving of differential treatment to the appellant, which is in derogation of Articles 4, 18 and 25 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 favoring 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."

The issue No. (ii) is answered in negative.

9.That as regard to issue No. (iii), that when the appellant being aggrieved from the assessment made by respondent No. 1 @ US$. 6/-kg asked him to complete the assessment of his goods under the provision of Section 81 of the Customs Act, 1969 and forward the sample to the Directorate General of Valuation for determination of fair value under the provision of Section 25 of the Act in exercise of the power vested upon him under clause 3(b) of S.R.O. 494(I)/2007 dated 09.06.2007, followed by representation dated 20.12.2014 to the Collector of Customs, PMBQ. Both denied in spite not warranted under the provision of Section 81 of the Act and acted completely in derogation of its expression, the said act speaks volume about the working of the field formation that they invariably ignore the provision of the Act, which is being incorporated in the Act for the benefit of the tax payer, for elaboration it is beneficial to reproduce here-in-under verbatim of Section 81:--

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

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

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

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

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

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

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

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

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

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

Upon bare reading of Section 81, it is observed that it with clarity expresses that where it is not possible for the Officer of Customs during the checking of the Goods Declaration to satisfy himself of the correctness of the assessment of the goods made under Section 79, for reason that the goods required chemical or other test or a further inquiry, an Officer not below the rank of Assistant Collector of Customs, may order the duty, taxes and other charges payable on such goods be determined provisionally. Section 81 further prescribes mode and manner for releasing the goods through provisional assessment, subsequently has to made further inquiry as deem necessary for the purpose of final determination of duty over the amount determined provisionally. The differential amount between the declared and tentative determined amount has to be secured through bank guarantee or pay order which according to him is sufficient. Here the question arrive as to how the duty, taxes and other charges payable on such goods to be determined provisionally. The law is silent on the point as to what is meant by provisional determination and how it is to be made. However, in the instant case provisional determination of value could had been made while securing differential amount of duty, taxes and other charges between the value of identical goods available in the data i.e. US$. 2/kg and payable on the value on which the respondent No. 1 desires to assess i.e. US$. 6/kg, subject to finalization under subsection (4) upon issuance of valuation advice by the Directorate General of Valuation under the provision of Section 25 of the Act and Chapter IX of Rules in exercise of the power vested upon it under clause 3(b) of S.R.O. 494(I)/2007 dated 09.06.2007. In this manner the interest of Revenue is fully protected and no undue harassment shall be caused to the importer. The tenor of the language shows that the legislature has made substantial provision for protecting the interest of Revenue in case of release of the goods on provisional assessment under Section 81 and has allowed sufficient time to the Custom Official for making necessary inquiry/probe to determine the final valuation under Section 25 and finalization of the same under Section 80 of the Act, the purpose of these provision is to protect the State Revenue in a manner that the Trade and Industry is allowed to run smoothly.

That the Collector of Customs, PMBQ has not been vested with powers under any provision of the Act or any other Act of the land to ignore the requirement of the section incorporated by the legislature in the Act e.g. Section 81 nor can interpret in accordance with ones whims and wishes with the exception of adherence as per its essence and spirit. Therefore, it was mandated to issue direction to the respondent No. 1 to adhere the provision of Section 81 of the Act and complete the assessment of the appellant consignment after securing pay order between the differential amount of US$. 2 and 6/kg. In principal no direction of Collector is warranted under the provision of section 81 because the authority defined therein is Assistant Collector, which is respondent No. 1 and he has to exercise the vested power independently and with out any influence for determination of value, classification or applicability of notification etc. None of the Superior Authority is empowered to restraint him in exercising of powers under any pretext i.e. either through verbal or written orders. Nobody is permitted to do so or encroach the jurisdiction specifically vested upon him under the statute. Rendering the verbal and written orders of the Collector of Customs, as of no legal authority/jurisdiction, ab-initio and void. My opinion is stood validated from the judgment reported at 2014 PTD 525 Waseem Radio Traders v. FOP, wherein it has been held that in paras 10 to 12 as under:--

"10. The purpose of these provisions is not only to protect the revenue of the State but also provide smooth flow of Trader if the interpretation given by the learned counsel for the respondents/department is accepted it will result that the importer will be rest at the mercy of the Customs Authorities which cannot be intention of the Legislature.

11. Therefore, when there is a dispute between the importer and the appropriate officer of the customs with regards to the value of imported goods the importer have a right to get his goods cleared under section 81 of the Customs Act, 1969.

12. In the present case there is a dispute between the importer and the appropriate officer of the Customs regarding value, therefore importer for the release of their goods under section 81 of the Customs Act, 1969, on payment of duty and taxes on the declared value, whereas difference between the declared value and the value under Valuation Ruling has to be secured by way of bank guarantee to the satisfaction of the Collector concerned.

The right of the importer and the Customs Officer has been defined in context to Section 81 by their lordship Muhammad Mujibullah Siddiqui and Sajjad Ali Shah JJ in reported judgment 2006 PTD 909 Rehan Umar v. Collector of Customs, Karachi and 2 others in the following words:--

"If it is not possible for the customs to determined the final tax liability for the reason that the chemical or other test a further inquiry is required then it give right to the importer to get the goods released on payment of duty and taxes assessed by him under section 79 and on furnishing of bank guarantee or a post dated cheque of a schedule bank along with indemnity bond for payment of differential amount as determined by customs officials. In such situation the importer should not be left on the mercy of Assistant Collector of Customs or any officer above in rank. It is therefore, held that if the declared value in the Bill of entry is not acceptable to the appropriate officer of the customs department and the value can not be determined under the provision of subsection (1) of Section 25 and resort is to be made to other method provided in section 25 of the Customs Act, then the importer is entitle for the release of the goods under Section 81 of the Customs Act, 1969 by provisional determination of liability. The release of the goods in such a manner is a matter of right of importer and not a matter of concession within the appropriate officer of the Customs. (emphasis supplied)

Denying completion of Goods Declaration of the appellant by the respondent No. 1 and direction of the Collector of Customs, PMBQ to respondent No. 1 not to exercise the powers vested upon him under the provision of Section 81 were patently illegal and without lawful authority/jurisdiction being in derogation of express provision of section 81 of the Customs Act, 1969 and the law laid down in the referred in above judgments. Hence, ab-initio, void. The issue No. (iii) is answered in negative.

10.To what have been stated/discussed and observed herein above, particularly in the light of prescribed law and judgments passed by the Supreme court. I allow this appeal as prayed and set aside the assessment orders dated 08.12.2014 and Orders-in-Appeal dated 04.05.2015 as the same suffer from grave legal infirmities, therefore are declared to be illegal, null and void and against the norms of justice.

11.Orders passed and announced accordingly.

HBT/130/Tax(Trib.) Appeal allowed.