JAMIA DARUL ULOOM VS ADDITIONAL COLLECTOR OF CUSTOMS, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 95 (2016)

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

----Ss. 19, 32, 32-A, 79 & 80---Exemption from customs duties---Mis-declaration---Importer/an educational institution, filed goods declaration declaring to contain "Cold Room Freezer and Chiller" under PCT 8418.5000, and determined its liability of payment of applicable duty and taxes and sought clearance under S.79(1) of the Customs Act, 1969---Same was cleared with exemption of duty and taxes under PCT 9915---During post clearance scrutiny of the goods declaration by audit of revenue receipt, it was observed that consignment was cleared under PCT 9915 without payment of customs duty and other taxes, and that claimed/availed exemption, was not admissible to the subject goods as benefit of PCT 9915 was extendable to the imported goods which had an educational and scientific character---Importer, along with its customs agent were alleged to have wilfully/malafidely committed offence under Ss.32 & 32-A of the Customs Act, 1969 punishable under cls.14 & 14-A of S.156(1) of the Customs Act, 1969---Additional Collector of Customs (Adjudication) passed order to the effect that the importer had violated the provisions of Ss.32(1)(2), 32-A of Customs Act, 1969 by short payment of customs duty---Validity---Importer, vide letter, explained to the Collector of Customs that they had imported the impugned goods, which were meant for installation for their Science Laboratory---Matter was duly deliberated upon up to the level of Additional Collector and the Customs department finally arrived at the conclusion that the impugned goods had educational and scientific character and eventually as a conscious decision they assessed the goods under S.80 of the Customs Act, 1969 and allowed release thereof under PCT heading 9915 at 0% customs duty---After release of the subject consignment, the department issued show-cause notice and charged the importer under Ss.32 & 32-A of the Customs Act, 1969---Department, had failed to produce any expert evidence to controvert the stance of the importer---Scientific Laboratory, could not run without proper cooling system and apparatus working thereunder, which was a necessary requirement for carring out experiments and analysis for getting true and accurate results---Keeping in view the said conditions, subject consignment rightly fell under the category of educational and scientific character---Executive or the Collectorate, who was responsible for assessment of goods, had to ensure before invoking the provisions of S.32 of the Customs Act, 1969, that, prima facie, an element of "mens rea" was present i.e. there should be an attempt of wilful and deliberate false declaration---Adequate breach of principles of natural justice had been equated with breach of law during the hierarchy of customs, and orders passed thereon by the department, including the issuance of show-cause notice and all subsequent proceedings and impugned actions were without any warrant of law, illegal, void ab initio which were set aside, having no legal effect on various accounts---Appeal was accordingly allowed.

Messrs Nadeem Electronics (Pvt.) Ltd. Hairpur District Haripur v. Collector of Customs and Central Excise Sales Tax, Jamrod Road Peshawar and 5 others 1999 PTD 1912; 2010 PTD (Trib.) 2086; D.G. Khan Cement Company Ltd. v. Federation of Pakistan 2004 SCMR 456; Akhtar Hussain v. Collector of Customs (Appraisement) and 3 others 2003 PTD 2090 and Waseem Ahmed and others v. FOP and another 2014 PTD 1733 ref.

(b) Administration of justice---

----Principles---To maintain the administration of justice, no one was to be prejudiced by any one; courts were required to do justice between the parties in accordance with the provisions of law, as the litigant, who approached the court for the relief, was bound to substantiate that, the procedure had been adopted by him in accordance with law; if a particular thing was required to be done in a particular manner, same must be done in that manner, otherwise it should not be done at all and that what had not been expressly written by legislature, could not be implied.

Muhammad Faheem for Appellant.

Rashid Khanzada, A.O. for Respondents.

Date of hearing: 26th May, 2016.

JUDGMENT

MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I).--By this Judgment, I intend to dispose of the instant appeal filed by the Messrs Jamia Darul Uloom against the Order-in-Original No.143/2015-16 dated 14.09.2015 passed by the Additional Collector of Customs (Adjudication-II), Karachi.

2.Brief facts of the case as reported by the Model Customs Collectorate of Appraisement (East), Customs House, Karachi vide contravention report No. 681/KAPE/DC/Gr-VI/2015 dated 06.07.2015 are reproduced hereunder for reference:--

3.Messrs Jamia Darul Uloom, Karachi filed GD for home consumption bearing No. CRN I-RDC-1981714-26-10-2011 through their authorized custom agent declared to contain "Cold Room Freezer and Chiller" under PCT 8418.5000, Value Rs.17,03,699/- and determined their liability of payment of applicable duty and taxes and sought clearance under section 79(1) of the Customs Act, 1969 and the same was cleared with exemption of duty and taxes under PCT 9915. During post clearance scrutiny of the Goods Declaration by Audit of Revenue Receipt, it was observed that the above mentioned consignment was cleared under the benefit of PCT Heading 9915 without payment of custom duty Rs.596295/-, Sales Tax Rs.367999/- and withholding tax Rs.1,33,400/- (Total 10,97,691/-) and the claimed/availed exemption was not admissible to the subject goods as benefit of 9915 is extendable to the imported goods which have an educational and scientific character. Thus, the Importer Messrs Jamia Darul-Uloom, Karachi along-with their custom agent Messrs Evergreen Enterprises (CHAL-381), Karachi willfully/malafidely committed offence under sections 32(1), 32(2), 32A, of the Customs Act, 1969 punishable under Clauses (14), (14A), of section 156(1) of the Customs Act, 1969, read with section 33 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001. Accordingly, Messrs Jamia Dar-ul-Uloom, Karachi along with their customs agent Messrs Evergreen Enterprises (CHAL-381), Karachi were called upon to show cause under provisions of sections 32(1), 32(2), 32A of the Customs Act, 1969, sections 33 and 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 as to why the evaded amount of taxes amounting to Rs. 10,97,694/(Customs Duty amounting to Rs. 596,295/-, Sales Tax amounting to Rs. 367,999/- and Income Tax amounting to Rs. 133,400/-) (along with the default surcharge) may not be recovered from them and penal action under clauses (14) & (14A) of Section 156(1) of the Customs Act, 1969, Clause 11(c) of Section 33 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 may not be taken against them.

4.The Additional Collector of Customs (Adjudication-II) Karachi passed the impugned Order-in-Original No. 143 of 2015-16 dated (sic)02.2015. The operative part of the same is reproduced as under:--

"19. In the light of the afore-stated facts, the charges leveled in the show-cause notice stand established. Messrs Jamia Darul Uloom, (NTN- 2465521-0), Korangi Industrial Area, Karachi has violated the provisions of sections 32(1), 32(2), 32A of the Customs Act, 1969, Sections 33 and 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 and is hereby ordered to deposit the short paid amount of Rs.10,97,694/- (Customs Duty amounting to Rs.596,295/- Sales Tax amounting to Rs. 367,999/- and Income Tax amounting to Rs.133,400/-) into the government treasury. A penalty of Rs.100,000/- (Rupees One Hundred Thousands Only) is also imposed under clauses (14) of section 156(1) of Customs Act, 1969 on the respondent, Messrs Jamia Dar-ul-Uloom, (NTN-2465521-0), Korangi Industrial Area, Karachi. A penalty of Rs. 25,000/ - (Rupee Twenty Five Thousands Only) is also imposed on the clearing agent Messrs Evergreen Enterprises, (CHAL-381), F-194/3, Block-5, Park Lane, Clifton Karachi under section 156(1)(14) of the Customs Act, 1969 for active connivance with the importer in claiming inadmissible benefit under PCT 9915. The Collectorate may proceed to recover the default surcharge strictly is accordance with law and initiate action as identified in para 12 of this order. It has been observed that the Collectorate doesn't ensure proper representation before the adjudication authorities which delays the finalization of the proceedings. The Collectorate is advised to put in place a mechanism to ensure attendance of departmental representative before adjudication authority besides counseling the relevant official who was appointed in this case and who failed to attend a single hearing."

5.Being aggrieved and dissatisfied with the Order-in-Original, the appellants filed the instant appeal before this Tribunal on the grounds mentioned in the Memo. of Appeal.

6.On the date of hearing Mr. Muhammad Faheem, Advocate appeared on behalf of the appellant and reiterated the contents of the appeal and further contended that, the impugned Order-in-Original has been issued in a perfunctory manner without considering the facts of the case and the law points involved therein, the Show-Cause Notice is vague and unclear as to what offence had been committed by, the appellants. The Show-Cause Notice does not contain any specific charge nor does it speak about the examination and assessment under Section-80 of the Customs Act, 1969. Respondent does not give any basis for disqualification of impugned goods from the purview of condition-(i) of PCT heading 9915. The term 'educational and scientific character' has not been explained in the Show-Cause Notice. Show-Cause Notice has been issued under Section-32(1)&(2), which in the instant circumstances could only have been issued under Section-32(3), by virtue of which the impugned Notice is barred by time limitation, which in terms of various pronouncements of the superior fora is required to be quashed. The adjudicating officer in Para-10 of the impugned Order-in-Original has debarred the impugned goods from the ambit of heading 9915 by simply holding that the goods neither have educational nor scientific character without giving any reason/basis for such findings; The adjudicating officer has accepted that the goods were released under Section 80 of the Act, however, despite this he has not paid any heed to the pronouncements of the higher judicial fora wherein it has categorically been held on several occasions that where assessment has been made by the Customs officers themselves, the provisions of Section 32(1) and (2) cannot be invoked. He placed some of the judgments passed by the superior courts, in support of their arguments, same are taken on record.

7. He also argued and deliberate upon the first condition of PCT heading 9915, which says as define under:--

"(i)The imported goods have an educational and scientific character;"

The term Educational Purpose has been defined in the Black's Law Dictionary as under:

"Term as used in constitutional and statutory provisions exempting property so used from taxation, includes systematic instruction in any and all branches of learning from which a substantial public benefit is derived, and is not limited to such school properties as would relieve some substantial educational burden from the state."

8. He further contended that, as regards recovery of Sales Tax and Income Tax, no reason whatsoever has been given neither in the Show-Cause Notice nor in the Order-in-Original despite the fact that the goods essentially qualify for exemption from Sales Tax under Sixth Schedule to the Sales Tax Act, 1990 and exemption from Advance Income Tax in terms of Exemption Certificate issued under Section-2(36)(C) of the Income Tax Ordinance, 2001. He further contended that the Customs authorities are otherwise not empowered to recover escaped amount of Sales Tax and Income Tax. The officers of Customs have not been notified as officers of Sales Tax under the Sales Tax Act, 1990 or officers of Income Tax under the Income Tax Ordinance, 2001. Officials or Officers of customs have been given limited powers to collect the tax at the import stage and have no powers to determine and adjudicate the escaped tax, he placed the contents of Section 6 of the Sales Tax Act, 1990, which says as under:--

Sales Tax at the import stage:

(1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 1[and the provisions of the said Act [including section 31A thereof], shall, so far as they relate to collection, payment and enforcement of tax under this Act on such goods where no specific provision exists in this Act, apply,].

9.He further contended that, after the release of the imported goods if any short levy of duty and sales taxes is detected then the same are recoverable in terms of provisions of Section 32(2) read with section 32(1) of the Customs Act (i.e. Sections initiated in the impugned Show-Cause Notice). However, Customs is not entitled to recover sales tax under these sections as the said section starts with the phrase 'if any person, in connection with any matter of customs'. Clearly the Sales Tax is regulated by the Sales Tax Act, 1990 and its recovery proceedings cannot be termed as a matter of Customs. It is only charged and paid in the same manner and at the same time as if it were a duty of Customs payable under the Customs Act as envisaged in Section 6(1) of the Sales Tax Act. For the legal purposes sales tax is not a customs levy hence its recovery in case it is short levied falls outside the ambit of Section 32 ibid.

Section 6(1) clearly spells out that provisions of the Customs Act are applicable with reference to collection, payment and enforcement of the sales tax where no specific provisions exists in the Sales Tax Act, 1990. Section 11 (earlier section 36) of the Sales Tax Act specify the mode of recovery of sales tax. The relevant subsections of section 11 are reproduced below:

'11. Assessment of Tax and Recovery of Tax not levied or Short levied or erroneously refunded.--

(3) where by reason of some collusion or deliberate Act any tax or charge has not been levied or made or has been short levied or has been erroneously refunded, the person liable to pay any amount of tax or charge or the amount of fund erroneously made shall be served with the notice requiring him to show cause for payment of the amount specified in the notice.'

10.In support of his arguments, he also referred the judgement of Honourable Peshawar High Court in case reported as 1999 PTD 1912 (Messrs Nadeem Electronics (Pvt.) Ltd., Haripur, District Haripur v. Collector of Customs and Central Excise Sales Tax, Jamrod Road Peshawar and 5 others). As such the SCN and order-in-original is void ab-initio and liable to be set aside. The Customs, Excise and Sales tax Appellate Tribunal in case reported as 2010 PTD (Trib.) 2086 has also dilated upon this issue and decided that Collector of Customs did not have the authority to recover the Income Tax later on, although he had the authority for the collection of tax under Section-148 of the Income Tax Ordinance, 2001. The Hon'ble Sindh High Court in case CP No. 216 of 2013 has also decided that Customs cannot recover short levied Income Tax. At best they can make reference to the Income Tax Department. The relevant portion of the Judgment of the Honorable High Court re-produced below:--

"In our view, the jurisdiction of the Customs authorities (i.e., the Collector of Customs) is limited to only the collection of advance income tax. Furthermore, subsection (6) of section 148 emphasizes that the provisions of the Customs Act apply only to the collection of the tax and that too, only insofar as is relevant. Since there is a clear distinction between the collection of a tax on the one hand and recovery or enforcement on the other, in our view, the provisions of the Customs Act as relate to the latter are not applicable in relation to the jurisdiction conferred on the customs authorities under section 148".

11.He further contended and argued that, there was no mens rea or mala fide on the part of the appellants to defraud government of its legitimate revenue, which is clear from the entire history of case. Where there is no mens rea, penalty cannot be imposed in terms of judgment of Supreme Court of Pakistan in the case of DG Khan Cement Company Limited v. Federation of Pakistan reported as 2004 SCMR 456:

"Where non-payment of the sales tax within period was neither willful nor it could be construed to be mala fide evasion of payment of duty, recovery of additional tax as penalty or otherwise was not justified in law."

12.In light of aforesaid arguments, appellant's advocate prayed that, this Honorable Tribunal may be pleased to pass the order and allow the appeal in the interest of justice.

13.No cross objection under subsection (4) of section 194-A has been submitted by the Respondent. However, Mr. Rashid Khanzada A.O. appeared and opposed the arguments of the appellant and further contended that competent adjudicating authority has issued the Order-in-Original No.143 / 2015-2016. Moreover, seven ample opportunities of hearings have been accorded to the importer and their verbal and written submissions were duly considered thereafter the self-speaking order has been issued covering all aspects of the case, as such the same is within the provisions of law. He further contended that the show-cause notice has been issued by the competent authority under the relevant provision of law i.e. 32(1), 32(2), 32-A of the Act, read with Sections 33 and 34 of the Sales Tax Act, 1990, and Section 148 of the Income Tax Ordinance, 2001. The perusal of subject show-cause notice would reveal that complete details of the allegations levelled has been mentioned therein. As such the same is within four corners of a law. He also argued that, the adjudicating authority had discussed the case in detailed and held that during scrutiny of the GD it was found that the claimed / availed exemption of customs duty and other taxes was not admissible to the referred goods due to the reason that the same is only available to an education and scientific character. The adjudicating authority further held that Messrs Jamia Dar-ul-Uloom, Karachi neither have any educational character nor these hold any scientific character. For instance the imported cold room freezer and chiller did not fall under the aforesaid category. As such the benefit availed under PCT 9915 was not admissible. He further contended that, the importer Messrs Jamia Dar-ul-Uloom, Karachi willfully with malafidely committed offence under Sections 32(1), 32(2), 32-A of the Act, read with Section 33 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. Due to availing the inadmissible benefit under PCT Heading 9915 the importer deprive the Government from its legitimate revenue of Rs.1097694/-. The time limitation for issuance of show-cause notice under the aforesaid provisions of law is five years and not three years. Therefore, the show-cause notice is well within time frame. The imported goods did not qualify the condition of PCT Heading 9915 as the exemption of customs duty and other taxes was not admissible to the imported goods. Moreover, the exemption of customs duty, sales tax and sales tax only extendable to the imported goods which have an educational and scientific character and the importer did not fall under aforesaid category.

14.He further contended that the exemption of duty / taxes was not claimed at the time of filing of GD. Further the goods in question have been imported by the importer whereas to qualify for exemption under PCT 9913 showed either the received as gift or donation. The customs authorities in terms of Section 161(2) read with Section 80 of the Income Tax Ordinance, 2001, empower the customs authorities to recover short levied income tax. Moreover, Federal Board of Revenue vide letter C.No.3(32)Tar-1/90 dated 06-08-2012 has clarified that customs authorities empowered to recover sales tax, federal excise duty and withholding tax. He further contended that the element of mens-rea is very much visible in the instant case. The importer Messrs Jamia Dar-ul-Uloom have willfully, deliberately and intentionally availed the benefit of exemption of customs duty, sales tax and income tax under the benefit of PCT 9915 which was subsequently found inadmissible. The aforesaid exemption is only available to the imported goods which have an educational and scientific character, whereas the referred goods did not fall under the aforesaid category, as such the Order-in-Original passed by the Additional Collector is well worded and in accordance with law, the same may please be upheld in the interest of justice.

15.Arguments heard and concluded. After perusal of the record as well as arguments extended by both the parties, it has been noticed and observed that, the appellant had imported 'Dual Compartment Cold Room - Freezer Compartment Refrigeration Unit and Chiller Compartment Refrigeration Unit' classifiable under PCT heading 8418.5000 and claimed the benefit of PCT heading 9915. The Goods Declaration (GD) bearing No.I-RDC-1981714-261011 was filed by the appellants under Section 79(1) of the Customs Act, 1969. During the assessment of GD the customs had raised an objection vide their Assessment Sheet on 28.10.2011 regarding the character of the goods as educational and scientific. Certain documents were also solicited by the Customs vide the said Assessment Sheet. The appellant vide their letter dated 04.11.2011 explained to the then Collector of Customs that, they had imported the impugned goods, which were meant for installation for their science laboratory. The matter was duly deliberated upon upto the level of Additional Collector level and the customs finally arrived at the conclusion that the impugned goods had educational and scientific character and eventually as a conscious decision they assessed the goods under Section 80 of the Customs Act, 1969 and allowed release thereof under PCT heading 9915 @ 0% customs duty, 0% Sales Tax, 0% Advance Income Tax on 10.11.2011. After release of the subject consignment the respondent issued show-cause notice dated 07.07.2015 and charged the appellant under Sections 32(1), 32(2), 32A, of the Customs Act, 1969 punishable under Clauses (14), (14A), of section 156(1) of the Customs Act, 1969, read with Section 33 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 and alleged that the benefit of 9915 is extendable to the goods which have an educational and scientific character only and present goods under reference are not of that category. During hierarchy of the customs the appellant strongly contested and rebutted the alleged allegations attributed against them under the impugned show-cause notice on the ground that, the appellant Messrs Jamia Dar-ul-Uloom, Karachi is a non-profit making organization registered as educational research institute and given the status of University by Federal Board of Wafaq-ul-Madaris Al-Arabia. Darul Uloom is also running Madarsa Ibtedaiya, Sanvia-Dar-ul-Uloom Sectondary School and Hira Foundation School O & A level as well. The subject institution is exempted from Income Tax and in compliance of section 2(36)C of the Income Tax Ordinance, 2001, Income Tax Commissioner issued the certificate No. CIT/COS.V/ 2007/733 dated 24.07.2006, which is the mandatory requirement of claiming exemption under PCT heading 9915. Chapter 99 of Pakistan Customs Tariff prescribed the special classification provision sub-chapter-(III) of Chapter 99 defines the procedure of import of charitable education, scientific institution and hospitals. Notes of said sub-chapter also define the "charitable institution" and "charitable non profit making institution" means an institution approved for the purpose of section 2(36)C of the Income Tax Ordinance. Now in presence of said certificate and conditions complied thereon at the time of clearance of the consignment. Notwithstanding, anything to the above situation, department/respondent remain restrained on the point that the imported goods have no educational and scientific character that is the only controversy which is the bone of contention left in this case. The department/respondent in this regard failed to produce any expert evidence to controvert the stance of the appellant, inspite of that, the appellant during hierarchy of the customs submitted the photographs of the institution where the said Dual Compartment Cold Room-Freezer Compartment Refrigeration Unit and Chiller Compartment Refrigeration Unit are been installed for keeping the environment of the scientific and research laboratory conducive for the students to maintain the certain required temperature in order to keep the shelf life of the chemical and testing samples. It is obvious to understand that scientific laboratory cannot run without proper cooling system and apparatus working thereunder, which is a necessary requirement for carried out experiments and analysis for getting true and accurate results. Keeping in view the aforesaid conditions, subject consignment rightly fall under the category of educational and scientific character.

16.It is further observed that, even otherwise if all the GDs listed in the impugned show-cause notice was filed by the appellant and processed, in case of non-payment and short payment as detected in the result of audit conducted by the Post Clearance Audit Department. Respondents while conducting the investigation fail to clarify the fact that, it is the responsibility of the respondents to brought iota of evidence against the final assessment under Section 80 of Customs Act, 1969, (made at the stage of clearance), that order was in fact appealable under expressed provisions of Section 193 of Customs Act, 1969. Prior to amendment in Section 193 of the Customs Act, through Finance Act, 2012, although, right of appeal was not available to the respondent Collectorate, the only option available with the Collector of Customs of its jurisdiction was to re-open a past and closed transaction under section 195 of the Customs Act, 1969. Such proceedings are also not conducted by the concerned quarters for better reasons known to them. If it is the case of dispute in the PCT heading and claim of exemption then, another question arises whether the provisions of section 32 of the Customs Act, 1969 applies in such kind of cases. The executive or the Collectorate who is responsible for assessment of goods, has to ensure before invoking the provisions of section 32 of the Customs Act, 1969, that prima facie an element of "Mens rea" is present, i.e. there should be an attempt of wilful and deliberate false declaration. The directions contained in CGO 12 of 2002, though not binding upon the authorities performing Quasi Judicial functions, but are mandatory in nature and are binding upon the field officers of the collectorates in terms of section 223 of the Customs Act, 1969. The field officer are required to follow such directions and or guidelines before making any contravention report/case against an Importer. The field officers are not authorized to act as per their own discretion in a situation wherein, FBR has already issued directions and or guidelines after considering the issue in depth in line with settled principles of law, and any act of the field officers in violation of such directions would be illegal and of no consequence. Reliance in this regard may be placed on the case of Akhtar Hussain v. Collector of Customs (Appraisement), and 3 others (2003 PTD 2090), wherein a learned Division Bench of Honorable High Court, speaking through My Lord Mr. Justice Mujeebullah Siddiquie, has observed that it is undeniable proposition of law that instructions issued by CBR (now FBR) under section 219 of the Customs Act, 1969 are binding on all the officers of the Customs employed in the execution of Customs Act by virtue of provision contained in section 223 of the Customs Act, if there is any conflict in the instructions issued by CBR (now FBR) and the instructions/orders issued by the Officer subordinate to the CBR (now FBR), that the instructions / orders issued by the subordinate official are invalid and inoperative to the extent of conflict. The provision of CGO 12 of 2002 [Para101 (B)] are still exists and is available on the Statute Book. Therefore, in such a situation, and in absence of any clarification or amendment, to that effect, we have not been able to persuade ourselves to observe that the same would not be applicable in case of assessment of Goods Declarations. Consignments imported in this present case are accordingly processed, out of charged and cleared by the Clearance Collectorate, subsequent action initiated by the respondent does not falls under alleged provisions of law as mentioned in the impugned show-cause notice.

17.The respondents are also not 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 respondents without powers/jurisdiction and as such coram non judice. My opinion stood vindicatd from the 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 cannot be delegated through any SRO with that the Hon'ble High Court of Sindh declared Notification No. S.R.O. 775(I)/2011 ultra vires to the Sales Tax Act, 1990."

18. Now for further distinction of powers and observations made thereon, it is 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. In these Sections neither Collectorate of Customs nor respondents figures anywhere and as such they are not appointed as Officer of Inland Revenue under these sections. Hence, cannot lay hands on any matter falling under the ambit of Sections 14, 14A of Federal Excise Act, 2005 Section 33(5) of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. Assistance of directive letter O.M.No.F.242/2012-Law-I dated 11.07.2012 also lend no help, as Ministry of Law and Justice has no mandate to interpret the provision of the Act or amend the statutory provisions. It can only give opinion, it is for the judicial fora to interpret the provision of statute. Assuming power on the strength of impugned letter of the Ministry of Law and Justice is palpably illegal beside fatal to the jurisprudence of law. Even otherwise, the letter of the Ministry of Law and Justice speaks about collection of Federal Excise Duty at import stage in the same manner and at the same time, as if it is a duty of customs payable under the Customs Act, 1969 (IV of 1969) and for collection of the same the provision of Section 31A also apply. Reference of section 7 of the Federal Excise Act, 2005 has also been given simply for clarification that for collection of import duty provision of Sales Tax, 1990 is applicable. To further elaborate and settling the issue to its logical conclusion, I add while referring to Section 3 of the Federal Excise Act, 2005, Section 6 of the Sales Tax Act, 1990 and 148 of the Income Tax Ordinance, 2001 through which the respondent Collectorate is empowered to collect the Federal Excise Duty and Taxes on the imported goods as like custom duty on the value determined under Section 25 of the Customs Act, 1969. These sections least empowers the Officers of Customs including the respondents to initiate adjudication / recovery proceeding for the short collected/paid Federal Excise Duty, Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Proceeding for these type of recovery a show-cause notice has to be issued by the Officer of Inland Revenue. It is the conclusive opinion of this court that, the Clearance Collectorates does have the authority to collect Federal Excise Duty, Sales Tax and Income Tax at import stage in the capacity of collecting agent and can recover escaped/short payment paid Custom Duty and Regulatory Duty levied on the imported goods under section 18 of the Customs Act, 1969 under Section 202 of the Customs Act, 1969 after due process of law, but have no powers to adjudicate the cases of short recovery of Federal Excise Duty, Sales Tax and Income Tax under sections 14, 19, 33(5) and 148(1) ibid of the Act/Ordinance respectively. None of the respondents have the powers to recover the arrears of these at their own, unless they are in receipt of notice from the Officer of Inland Revenue and Commissioner of Income Tax under Rule 60, of Federal Excise Rules, 2005. Resultantly adjudication proceeding under sections 14 and 19 of Federal Excise Act, 2005, section 33(5) of the Sales Tax, 1990 and Section 148 of the Income Tax Ordinance, 2001 (as mentioned in the Show-Cause Notice) are not legal, justifiable and tenable in the eyes of the law, hence coram non judice, nor in consonance with the reported/unreported judgments of Superior Courts.

19.It is also settled principle that, to maintain the administration of justice, not to prejudice any one, courts are required to do justice between the parties in accordance with the provisions of law, as the litigants, who approaches the court for the relief is bound to substantiate that, the procedure has been adopted by him, in accordance with the law because it is elementary principle of law that, if a particular thing is required to be done in a particular manner it must be done in that manner, otherwise it should not be done at all. It is also a well settled principle of interpretation of fiscal statues that, what has not been expressly written by legislature could not be implied. Such standards of legal maxims are not maintained in this case.

20.By getting strength from the judgments of the superior courts as well as the observation made thereon in addition for the purpose to maintain the elementary principle of law, I hold that the adequate breech of natural justice has been equated with breach of law during the hierarchy of customs and orders passed thereon by the respondent including the issuance of Show-Cause Notice and all subsequent proceedings and impugned actions are without any warrant of law, illegal, void and ab initio hereby set aside, having no legal effect on various accounts as detailed above, as such the appeal is accordingly allowed with no order as to cost.

21.Judgment passed and announced accordingly.

HBT/35/Tax(Trib.) Appeal allowed.