EnglishFrenchPortugueseRussianUrdu

2016 P T D (Trib.) 1008

 

[Customs Appellate Tribunal]

 

Before Muhammad Nadeem Qureshi, Member (Judicial-I) and Mohammad Yahya, Member (Technical-I)

 

Messrs PHILIP MORRIS (PAKISTAN) LTD., KARACHI

 

Versus

 

The ADDITIONAL COLLECTOR OF CUSTOMS and others

 

Ijaz Ahmed for Appellant.

 

Haroon Khan Akhter and Faiz Mudassir for Respondents.

 

Date of hearing: 26th February, 2015.

 

JUDGMENT

MUHAMMAD NADEEM QURESHI, MEMBER (JUDICIAL-I):–Through this common order, we intend to dispose of three (03) Appeals bearing Nos. K-554/2014, K-555/2014 and K-556/2014, filed by M/s. Philip Morris (Pakistan) Limited, against Order-in-Original Nos. 196/ 2012 dated 16.10.2012, No.07/2012 dated 20.06.2012 and No.113/2012 dated 16.06.2012, passed by Additional Collector of Customs, MCC of Preventive, AFU MCC of PaCCS, Collector of Customs, MCC of Appraisement and Additional Collector of Customs, MCC PaCCS, respectively (here-in-after to be referred as respondent No. 1). These appeals have identical issue of law and facts, therefore, being heard dealt with and disposed of simultaneously though this common order in the light of the judgment of the Honorable High Court of Sindh in Customs Reference No.157 of 2008, S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Customs (Adj-I) and others.

 

2. Since, these 03 appeals are based on similar facts and questions of law, therefore it is needless to reproduce facts of each case separately, hence for reference the facts of Appeal No. K-556/2014 is taken into consideration. Brief facts of the case are that, the Directorate of Post Clearance Audit (PCA), Karachi vide Contravention Report C.No. PCA/2245/2011/Audit dated 28-10-2011 that the Post Clearance Audit of M/s. Philip Morris (Pakistan) Limited (Formerly Lakson Tobacco Company Limited), 4th Floor, Bahria Complex, M.T. Khan Road, Karachi was conducted. The Audit revealed that the respondent had imported three (03) consignments of Malboro King size Cigarettes, falling under PCT Heading HS Code 2402, vide home consumption Goods Declarations (GDs) Nos. (i) HC 43754 dated 15.12.2009, IGM No. 6536 dated 13.12.2009, Index No. 376 (1140 Boxes), (ii) HC 78032 dated 16.05.2009, IGM No. 5509 dated 10.05.2009, Index No. 752 (26 Boxes) and (iii) HC 65517 dated 01.04.2009 IGM No. 5258 dated 29.03.2009 Index No. 293 (502 Boxes). As per declaration of the respondent, the goods were classifiable under PCT Heading 2402.2000 chargeable to Federal Excise Duty (FED) @ 65% (approximately) of the retail Price under Section 3(I)(b) read with Section 12(4) and S. No. 8 of Table-I of the First Schedule to the Federal Excise Act, 2005. Whereas, the import data retrieved from the system, revealed that the respondents in contravention of afore-stated provisions of the Federal Excise Act, 2005, had not paid the Federal Excise Duty on Retail Price on import of these three consignments. They had paid Federal Excise Duty on Customs Duty paid value (i.e. import value + Customs Duty), without including Regulatory Duty, 2% Sales Tax on value Addition, Special Excise Duty, post importation charges, profits and Federal Excise Duty itself as defined under subsection (4) of Section 12 of the Federal Excise Act, 2005, which states as under:–

“Where any goods are chargeable to a duty on the basis of retail price; duty thereon shall be paid on the retail price fixed by the manufacturer, inclusive of all duties, charges and taxes, other than sales tax levied and collected under section 3 of the Sales Tax Act, 1990, at which any particular brand or variety of such goods should be sold to the general body of consumers or, if more than one such price is so fixed for the same brand or variety, the highest of such price and such retail price shall, unless otherwise directed by the Board, be legibly, prominently and indelibly indicated on each goods, packet, container, package, cover or label of such goods:”

The data obtained from the system revealed that Messrs Philip Morris (Pakistan) Limited, imported three consignments as mentioned above having retail price of Rs. 7,854,116/- and have short paid amount of Rs. 3,394,762/- Federal Excise Duty (FED) along with corresponding short payment of Sales Tax amounting to Rs. 624,727/, Rs. 157082/- as less Sales Tax payable in terms of 2% value addition Sales Tax and Withholding Tax amounting to Rs. 141,678/- (Total Rs. 4,318,249/-). Thus, M/s. Philip Morris (Pakistan) Limited, had violated the provisions of Section 3(1)(b) and Section 12(4) read with Table-1 of the First Schedule to the Federal Excise Act, 2005. The aforesaid amount of Federal Excise Duty is recoverable under Section 14 together with default surcharge under Section 8 and penalty under Section 19 of the Federal Excise Act, 2005. The above mentioned short paid amount of Sales Tax and value addition sales tax are recoverable under Section 36 together with default surcharge under Section 34 and penalty under Section 33 of the Sales Tax Act, 1990. Similarly the corresponding amount of Withholding Income Tax is recoverable under Section 148 of the Income Ordinance, 2001. Accordingly, the importer, Messrs Philip Morris (Pakistan) Limited (Formerly Lakson Tobacco Company Limited), 4th Floor, Bahria Complex, M.T. Khan Road, Karachi were called upon to show cause under Section 32(3A) of the Customs Act, 1969, Section 3(1)(b) and Section 12(4) read with Table I of the First Schedule to the Federal Excise Act, 2005 and Section 3 of the Sales Tax Act, 1990 as to why the evaded of Rs.3,394,762/- Federal Excise Duty along with corresponding short payment of Sales Tax amounting to Rs. 624,727/-, Rs. 157,082/- as less Sales Tax payable in terms of 2% value addition Sales Tax and withholding Tax amounting to Rs.141,678/-Total= Rs.4,318,249/-) may not be recovered from them and penal action may not be taken under Section 14 together with Default Surcharge under Section 8 and penalty under Section 19 of the Federal Excise Act, 2005, Clause 14 of Section 156(1) of the Customs Act, 1969, Sections 33(5), 36 and Default Surcharges under Section 34 of the Sales Tax Act, 1990 and Section 148 of the Income Ordinance, 2001.

 

3. The respondent No. 2 conducted audit of the Goods Declaration referred in para supra on the strength of data available in the system and observed that the appellant has short paid Federal Excise Duty (F.E.D) @ 63% (64% and 65% in different periods) on the Retail Price under Section 3(i)(b)(s) read with Section 12(4) and S. No. 8 of Table I of 1st Schedule to the Federal Excise Act, 2005, which has to be paid on Customs Duty paid value (i.e. import value + Customs duty), without including Regulatory duty, Value Addition Sales Tax, Special Excise Duty, Post Importation Charges, Profits and Federal Excise Duty as defined under subsection (4) of Section 12 of the Federal Excise Act, 2005 which read as:–

“Where any goods are chargeable to duty on the basis of retail price; duty thereon shall be paid on the retail price fixed by manufacturer, inclusive of all duties, charges and taxes, other than sales tax levied and collected under Section 3 of the Sales Tax Act, 1990 at which any particular brand or variety of such goods should be sold to the general body of consumers or, if more than one such price is so fixed for the same brand or variety, the highest of such price and such retail price shall, unless otherwise directed by the Board, legibly, prominently and indelibly indicated on each goods, packets, containers, package, cover or label of such goods”.

The respondent No. 2 on the basis of the said opinion forwarded an audit observation dated 29.06.2011 to the appellant for justification, which was replied by the appellant vide letter 19.09.2011, to which the respondent No. 2 disagreed and framed contravention report dated 28.10.2011 and forwarded the same to respondent No. 2, who on the basis of the formed opinion of respondent No. 2 issued show cause notice dated 25.11.2011 based on the allegation contained in Audit Observation, which is contravention of Section 32(3)(a) of the Customs Act, 1969, Section 3(1)(b) and Section 12(4) read with Table I of 1st Schedule to the Federal Excise and Section 3 of the Sales Tax Act, 1990 and as to why the evaded /short paid amount of Rs.287,177,494/- i.e. Federal Excise Duty Rs. 226,759,121.00, Sales Tax Rs.33068157.00, Value Addition Sales Tax 16790275.00 and Withholding Income Tax 10559941.00 may not be recovered from them and penal action may not be taken under Section 14 together with Default Surcharge under Section 8 and penalty under Section 19 of the Federal Excise Act, 2005, Sections 161(I), 14 of the Custom Act, 1969, Sections 33(5), 36 and Default Surcharge under Section 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. The appellant Chartered Accountant replied to the show cause notice vide multiple letter dated 19.01.2012, 13.03.2012, 04.06.2012 and 14.06.2012.The replies failed to impress the respondent No. 2 and he passed order dated 16.06.2012, paras 10 to 13 are relevant and which are reproduced herein below for easement.

“10 – I have examined the record of the case, written replies submitted by the respondents comments submitted by the department and carefully heard arguments of both parties. It has been alleged that the respondents imported consignment of cigarette, and got them cleared under PCT Heading 2402. Under the aforesaid PCT Heading, Federal Excise Duty (FED)) at the rate of 63% (64% and 65%) in different periods) is changeable at the “Retail Price” under provision of Section 3 (gone through the fact)(b) read with Section 12(4) and S. No. 8 of Table-1 of the First Schedule to the Federal Excise Act, 2005. Scrutiny of the import data, retrieved from the system revealed that the respondents had not paid Federal Excise Duty on Retail Price. The respondents had paid Federal Excise Duty @ 63% (64% and 65% in different periods) is chargeable at the “retail price” under provision of Section 3(1)(b) read with Section 12(4) and Serial No. 8 of Table 1 of the 1st Schedule to the Federal Excise Act, 2005. Scrutiny of the import data retrieved from the system, revealed that the respondent had not paid Federal Excise duty on Retail price. The respondent had paid Federal excise duty on Customs Duty paid value (import value + custom duty), without including regulatory duty, Value addition sales tax, Special Excise Duty, Post Importation Charges, profit etc. Sub-Section (4) of Section 12 of the Federal Excise Act, 2005 is reproduced as under:–

“12 Determination of value for the purpose of duty.

(4) “Where any goods are chargeable to duty on the basis of retail price; duty thereon shall be paid on the retail price fixed by manufacturer, inclusive of all duties, charges and taxes, other than sales tax levied and collected under Section 3 of the Sales Tax Act, 1990 at which any particular brand or variety of such goods should be sold to the general body of consumers or, if more than one such price is so fixed for the same brand or variety, the highest of such price and such retail price shall, unless otherwise directed by the Board, legibly, prominently and indelibly indicated on each goods, packets, containers, package, cover or label of such goods”.

Provided that where so and as so specified by the Board, any goods or class of goods liable to duty on local production as percentage of retail price, the provision of these subsection shall mutatis mutandi applied in case such goods are imported from Abroad.

11. the respondent have denied the allegations. They have contended that they have paid Federal Excise Duty as per provision of Section 12(4) of the Federal Excise Act, 2005 Under aforesaid law, the respondent pointed out, the price fixed as retail price by the importer at which the product is available by the general body of consumer, is the basis of levy of federal excise duty. The “Retail Price” so fixed by the importer is not dependent on the landed cost of the product, it only requires that such price shall include all duty and taxes. In these case, the matter is not in dispute as “Retail Price” fixed is higher than aggregate of all duties and taxes. The respondent has also posed “whether or not the company is required to pay federal excise duty for imported cigarettes under proviso to Section 12(4) of the Federal Excise Act, 2005 on the retail price fixed by the importer at a value necessarily equal of above the landed cost of such product including duties and levies. “Respondent argued that there is a specialize situation where the “Retail price has been fixed at an amount that included all duties, taxes and charges and a portion of landed cost of the product. They contended that there is not caveats in Section 12(4) that entitles that such price is to be related to the post of the importer or manufacturer, as the case may be, or any other basis. Accordingly, to the respondent condition under Section 12(4), are:

 

(i) Retail price shall be fixed by the importer;

 

(ii) Such price shall be printed on the Packs at which it is available to the General Body of consumer

 

(iii) Price printed shall be inclusive of all duty charges and taxes.

Therefore, is no other condition specially in relation to landed cost.

12. The Departmental representative (DR) argued that the respondent, contention of not including cost in the “retail Price” has no legal standing. The cost is included while calculating leviable taxes. “Retail Price” is a price on which a product is offered for sale to end consumer. No price can be determined without including actual cost in any business in the World. The Departmental Representative that Section 12(4) of Federal Excise Act, 2005 envisaged that all duties, taxes, and charges excluding sales tax shall be included while calculating “Retail Price”. The respondents should read provisions of SROs 545(I)/2006 with Section 12(4) of the Federal Excise Act, 2005, and Section 2(27) of Sales Tax Act, 1990. “Retail Price” being a price on which a product is offers for sale to end consumer; therefore, no such price can be determined without including cost of goods, landing charges and duty and taxes plus profit margin. As per law Federal Excise Duty is to be charged on the basis of “Retail Price” therefore, “Retail Price” fixed by the respondents cannot be arbitrarily determined ignoring legal provision of Section 12(4) of the Federal Excise Act, 2005. The contention of the respondents that they can sell their product at a loss, is not correct particularly in case of sales of cigarettes. Factually, the respondents are not selling their goods at a loss but they are offering discount in the market. Their aforesaid act is in violation of instructions of Ministry of Health, contained in S.R.O. 53(Ke) 2009 dated 18.07.2009, which states that “discount on goods below the market value shall not be given or offered for the purpose of advertisement of tobacco or tobacco product to consumers of tobacco products to generate sale or promote smoking”. He vehemently argued that the respondent cannot fixed retail price arbitrarily.

13. on the basis of foregoing discussion, it is held that arguments of the learned Departmental Representative are taniable under law. The respondent should have paid Federal Excise Duty on the retail price under Section 3 (1)(b) read with Section 12(4) and serial No. 8 of Table 1 of the First Schedule to the Federal Excise Act, 2005, which they failed. The charges leveled in the show cause notice stand established Messrs Philip Morris (Pakistan) Ltd., formely Lakson Tobacco Company Ltd., 4th Floor, Bahria Complex, M.T. Khan Road, Karachi are ordered to pay Rs. 287177494/- (wherein short paid amount of Federal Excise Duty is calculated as Rs. 226759121/- and Sales Tax of Rs.33068157/-, Value Addition Sales Tax Rs.16790275/- and Withholding Income tax Rs. 10559941/-). A penalty of Rs.5,000,000/- (Rs. 5 million only) also imposed on the respondent in terms of clause 14 of Section 156(1) of the Customs Act, 1969.”

 

4. Being aggrieved and dis-satisfied with the impugned orders-in-original the Appellant filed the these appeals before this Tribunal on the ground incorporated in the Memo. of Appeal on the date of hearing Mr. Ijaz Ahmed Advocate appeared on behalf of the Appellant reiterated the fact and contents and argued strictly in accordance with the grounds mentioned in the Memo of Appeal and further contended that for the referred in above appeals that:–

 

(i) That the respondent No. 1 (Directorate General of Post Clearance Audit) is not designated as Officer of Inland Revenue under the provision of Section 29 of the Federal Excise Act, 2005. Irrespective of this, the Board delegated power to respondent No. 2 vide Notification No. 165(I)/2011 dated 03.03.2011 under Section 29 of the Act, without realizing that under subsection (3) of Section 29 powers have to be delegated to the person/authority listed at clauses (a) to (d). In these Deputy Director figures no where, rendering the notification delegating the powers being in conflict with the provision of Section 29 and as such ultra vires and of no legal effect. Thus the whole exercise conducted by the respondent No. 2 under the provision of Section 46 of the Federal Excise Act, 2005 is coram non judice. Hence, void and ab-initio.

 

(ii) That similarly, the respondent No. 2 is not designated as officer of Inland Revenue under Section 228 or any other Section of the Income Tax Ordinance, 2001 and as such is not empowered to carry out audit in respect of Section 177 of the Income Tax Ordinance, 2001, rendering the exercise conducted by him in the case of appellant as of no legal effect instead coram non judice, hence void ab-initio.

 

(iii) That the respondent No. 2 is indeed designated as Officer of Inland Revenue under Section 30DD of Sales Tax Act, 1990 and has been delegated with the powers through notification No. S.R.O. 42(I)/2010 dated 23.01.2010, subject to exercise those in the capacity of Deputy Commissioner Inland Revenue under the provision of the Sales Tax Act, 1990 listed in column (4) of the notification but not in the capacity of Deputy Director. In the instant case of the appellant the respondent No. 2 exercised the power under the provision of Sales Tax Act, 1990 in the capacity of Deputy Director, rendering his act nullity to the provision of Section 30DD and Notification No. S.R.O. 42(I)/2010 dated 23.01.2010, therefore, without power/jurisdiction, hence void ab-initio as held in the reported judgments PLD 1971 SC 197 Chittaranjan Cotton Mills Ltd. v. Staff Union, Raunaq Ali’s PLD 1973 SC 236, 2002 PTD (Trib.) 889 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.

 

(iv) That the respondent No.1 is also not designated an Officer of Inland Revenue under the provision of Section 14 of the Federal Excise Act, 2005, Clause (c) of subsection (3) of Section 25 of the Sales Tax Act, 1990 and Section 207 of the Income Tax Ordinance, 2001 and as such is not empowered to issue show cause notice and pass order in original in respect of matter relating to Federal Excise Duty, Sales Tax and Income Tax under the provision of Section 19 of the Federal Excise Act, 2005, Section 36 of the Sales Tax Act, 1990 and Section 162(1) of Income Tax Ordinance, 2001. Hence, by issuing show cause notice and passing order-in-original the respondent No. 2 usurped the power of officer of Inland Revenue to which he is not vested, rendering the show cause notice and subsequent passed order-in-original without power/jurisdiction, hence void ab-initio. Rendering the issuance of show cause notice and order-in-original being in-flagrant violation of law and as such coram non-judice.

 

(v) That wherein any action is taken in the absence of availability of powers or show cause notice or order-in-original has been passed without jurisdiction/power, such order and so the subsequent order are of no legal effect as held by their Lordship of Supreme Court of Pakistan that “it is an element to principle that if a mandatory condition for the exercise of jurisdiction by Court, Tribunal or Authority is not fulfilled then the entire proceeding which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings in appeals or revisions equally suffers from illegality and are without jurisdiction”

 

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 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, STA 444/03, STA 465/07, 2010 PTD (Trib.) 1636 and 2010 PTD 465, 2010 PTD (Trib.) 2158, 2011 PTD (Trib.) 1010, 2011 PTD (Trib.) 1680, 2011 PTD (Trib.) 2086,

 

(vi) That it is well settled principle of law that, 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 objectives of performing or doing of a thing in a manner other than provided by law would not be permitted as declared in the landmark judgment of Director, Directorate General of Intelligence and Investigations and others v. Messrs Al-Faiz Industries (Pvt.) Ltd and others reported as 2006 SCMR 129, wherein their lordship of the Supreme Court had observed as under:

“INTERPRETATION OF STATUTE”

“Each and every word appearing in a Section is to be given effect to and no word is to be rendered as redundant or surplus. When the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred if the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful as per maxim “expressum facit cessare tacitum”

 

(vii) That action of issuance of show cause notice was ab-initio wrong as much as that the built-in automated authority in the software of PaCCS/the adjudicating authority defined in Section 2(a) of the Customs Act, 1969, who passed the assessment/clearance orders in the Goods Declaration of the appellant under Sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Sub-Chapter (III) of Chapter XXI of Customs Rules, 2001 were satisfied in respect of appellant declaration of the imported goods and so the respective Collector of MCC of PaCCS, who never reopened the assessment order under Section 195 of the Customs Act, 1969. Contrary, in order to defeat the legal mechanism, the respondent No. 2 framed contravention report and respondent No. 1 issued the show cause notice on the strength of the contravention report and subsequently passed order-in-original No. 113/2012 (Manual one case) dated 16.06.2012 were not competent to reopen a past and closed transactions within the framework of Customs Law.

 

(viii) In order to appreciate the proposition, it would be appropriate to reproduce here-in-below the provisions of Section 195 of the Customs Act, 1969 :

195 Powers of Board or Collector [***] to pass certain order:–(1) The Board or the Collector of Customs [or the Collector of Customs (Adjudication) may, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself, or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit:

Provided that no order confiscating goods of greater value or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counselor other person duly authorized by him.

(2) No record of any proceedings relating to any decision or order passed by an officer or customs hall be called for or examined under subsection (1) after the expiry of two years from the date of such decision or order.

 

(ix) As per the said provisions of the section, any proceedings under the Customs Act, 1969 is subject to review either by the FBR or by the respective Collector, and that too for satisfying in respect of legality or propriety of any decision or order passed by a Subordinate Customs Officer. There is no other provision in the Act authorizing a Customs functionary to review or reopen a past or closed transaction. Hence, the outcome of audit by respondent No. 2 and its observation and reporting to Collector of Customs, PaCCS regarding procedure impropriety in passed assessment/clearance order, is an action within the preview of Section 195 of the Customs Act, 1969. The act of passing of assessment/clearance orders falls within the preview of the word “proceedings” as all the happening and events before a Tribunal or an authority on whom jurisdiction is conferred by law to dispose off contentious matters are understood by the term proceedings. Therefore, the proper way to dispose off the audit objection was to place it before Collector of Customs, PaCCS for initiation of proceedings as envisaged therein.

 

(x) In the light of what has been discussed in the preceding para, it is evident that the action of framing contravention report by the respondent No. 2, forwarding that to Collector of Customs, PaCCS, as well as issuance of show-cause notice by the respondent No. 1 in the case of appellant were the acts of assumption of wrong jurisdiction and as such exercise carried out right from preparation of contravention report by the respondent No. 1 till passing of orders by the respondent No. 1 were without jurisdiction as contemplated in unreported and reported judgments of Customs, Excise and Sales Tax Appellate Tribunal, High Court and Supreme Court namely PLD 1971 SC 197 Chittaranjan Cotton Mills Ltd. v. Staff Union, Raunaq Ali’s PLD 1973 SC 236, 2002 PTD (Trib.) 889 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.

 

(xi) That the assumption of the respondents that violation of the Section 32(3A) did take place appears to be manifestly erroneous. Infact charge against the appellant is wholly misconceived, as his action do not falls within the operative mechanism of Section 32(3A) of the Act. A study of Sections 79, 80 and 83 of the Act and Rules 438 and 442 of Customs Rules, 2001 reveals that it is mandated upon the assessing officer to verify the declaration in all respect and in case of some discrepancy, correct that for levy of duty and taxes. In order to abreast the Hon’ble Tribunal it is felt appropriate by the appellant to analyze the scheme and mechanism of the assessment and clearance as provided in the Act and Rules, for better understanding the verbatim of provision of the Rules are reproduced herein-in below:

“Section 79– Declaration and assessment for home consumption or warehousing:—[(1) The owner of any imported goods shall make entry of such goods for home consumption or warehousing or for any other approved purposes, within fifteen days of the arrival of the goods, by,-

 

(a) Filing of a true declaration of goods, giving therein complete and correct particulars of such goods, duly supported by commercial invoice, bill of lading or airway bill, packing list or any other documents required for clearance of such goods in such from and manner as the board may prescribe; and.

 

(b) Assessing and paying his liability of duty, taxes and other charges thereon, in case of a registered user of the Customs Computerized System.

[Provided that if, in case of used goods, before filing of goods declaration, the owner makes a request to an officer of customs not below the rank of an Additional Collector that he is unable, for want of full information, to make a correct and complete declaration of the goods, then such officer subject to such conditions as he may deem fit, may permit the owner to examine the goods and thereafter make entry of such goods by filing an goods declaration after having assessed and paid his liabilities of duties, taxes and other charges.

Providing further that no goods declaration shall be filed prior to ten days of the expected time of arrival of the vessel.]

(2) if an officer, not below the rank of Additional Collector of Customs, is satisfied that the rate of customs duty is not adversely affected and that there was no intention to defraud, he may, in exceptional circumstances and for reasons to be recorded in writing, permit, substitution of a goods declaration for home consumption for a goods declaration for warehousing or vice versa.

(3) An officer of customs, not below the rank of assistant Collector of Customs, may in case of goods requiring immediate release allow release thereof prior to presentation of a goods declaration subject to such condition and restriction as may be prescribed by the Board.]

“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.

(2) An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in the manner deemed appropriate, during or after release of the goods by customs,

(3) if during the checking of goods declaration, it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment, the goods shall without prejudice to any other action which may be taken under this Act, be reassessed to duty.

(4) in case of the customs computerized system, goods may be examined only on the basis of computerized selectivity criteria.

(5) the Collector may, however, either condone the examination or defer the examination of imported goods or class of goods and cause it to be performed at a designated placed as he deems fit and proper either on the request of the importer or otherwise.

“Section 83–Clearance for home consumption:—(1) When the owner of any goods entered for home consumption and assessed under Section 80 or 81 has paid the import duty and other charges, if any, in respect of the same the appropriate officer, if he is satisfied that the import of the goods is not prohibited or in breach of any restriction or conditions applying to the import of such goods, may make an order for the clearance of the same.

Provided that, at customs stations where the customs computerized system is operational the system may clear the goods through system generated clearance documents.

 

(2) Where the owner fails to pay import duty and other charges within [ten] days from the date on which the same has been assessed under Section 80, 80A or 81, he shall be liable to pay surcharge at the rate of [KIBOR] plus three per cent] on import duty and other charges payable on such goods]

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

Rule 442– Release of imported goods: customs release message will be electronically communicated to the importer, his agent and the Terminal Operator. The goods will be released by the terminal Operator subject to fulfilling of any condition specified by customs in electronic message to the Terminal Operator. The Terminal Operator shall submit all collected documents requisitioned through electronic message to customs at the end of the day.

 

(xii) That in terms of Section 79 of the Act, the Board while commissioning the Pakistan Automated Customs Computerized System (PaCCS) framed its rules and embodied that in Chapter XXI of the Customs Rules, 2001, also prescribed the form of Goods Declaration for online with the MCC of PaCCS by intending importer (appellant). The format of GD’s so prescribed contained detailed information which includes description, UOM, PCT Heading and value. The system after receipt of Goods Declaration either select that for examination or assessment at its own the Assessing Officer upon receipt of Goods Declaration either complete the assessment if felt satisfied or get the goods examined or tested (as the case may be) for determining, the nature, quantity, description, PCT Heading of the goods and value to assess the amount of duty and taxes thereon subsequently either on declared PCT Heading and value or on the determined one during the course of assessment or even after the clearance of the goods in terms of Section 80 and Rule 438 of Customs Act, 1969 and Customs Rules, 2001.

 

(xiii) The assessment procedure as provided in Section 8 and Rule 438 of the Act and Rules, are quite exhaustive and detailed. The assessing officer can call for all the relevant documents and any other information which he deems necessary. Beside the Assessing Officer can put questions or seek additional information under section 26 of the Customs Act, 1969 and Rule 437 of Chapter III of Chapter XXI of Customs Rules, 2001 for the purpose of completing the assessment order. A perusal of Section 32(3A) of the Act reveals that where any duty has not been levied or has been short levied or has been erroneously refunded and which have been discovered through an audit or examination of importer account or by any mean other than any examination of the documents provided by the importer at the time of import. In order to bring an act or action within the frame work of word ‘false’ as used in Section 32 of the Act, the act should either be conscious wrong or culpable negligence and should signify knowingly or negligently untrue. Such issue came up for decision before the Karachi High Court in the case of Muhammad Imtiaz Ahmed Sheikh v. Principal and Chairman Academic Council and others reported as PLD 1976 Kar. 1154. Their Lordship observed:

” In law, the word ‘false’ usually implies either conscious wrong or culpable negligence, and signifies knowingly or negligently untrue. See United States v. Ninety-nine Diamonds (1). Accordingly to Metropolitan Life Ins. Co. v. Adams (2) the word ‘false’ has two distinct and well recognized meanings (1) intentionally or knowingly or negligently untrue; (2) untrue by mistake or accident, or honestly after the exercise of reasonable care “

 

(xiv) The procedure for clearance for goods for home consumption is embodied in Section 83 and Rule 442 of the Act and Rule, which empowers the appropriate officer to pass an order of the clearance upon satisfaction that the duty and taxes has been paid and the import of the goods is not prohibited or in breech of any restriction or conditions applying to the import of such goods. The Clearance Orders passed by the competent authority in the cases of the appellant were after having satisfaction in regards to the Assessment Order made under Section 80 and Rule 438 of the Customs Act, 1969 and Customs Rules, 2001 respectively.

 

(xv) The respondents Nos. 1 and 2 have failed to bring out on record any material in outcome of their inquiry by which it can be assumed that the appellant was in any way linked with the Assessment and Clearance Order passed under Sections 80(1) and 83 of the Customs Act, 1969 and Rules 438 and 442 of Customs Rules, 2001 by the competent authorities as expressed in Section 2(a) ibid. It is surprising that in the instant case no specific charge has been leveled against the appellant in the show cause notice and held in order-in-original stood validated from examination of show cause notice that the alleged under assessments were made by the Customs Officials. Instead of taking action against them, the respondents accused the appellant for their negligence and subsequently held the appellant is guilty of offence falling under Section 32(3A) of the Customs Act, 1969, Section 14 of the Federal Excise Act, 2005, Section 36 of the Sales tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 without any basis. This act itself violated the principal of natural justice. In these circumstances invoking of the referred sections are ab-initio wrong and the act of the respondent No. 1 to malign the appellant unnecessarily by issuing show cause notice and subsequently passing of an order-in-original are act of abuse of powers.

 

(xvi) The order-in-original passed by respondent No. 1 transpires that the appellant has not been held guilty of mis-declaration under the provision of Sections 32(1), 32(2) and 32(3A) of the Customs Act, 1969, rendering the charges leveled in the show cause notice stood diluted instead non existent and is based on dereliction of duties and negligence on the part of the officials of MCC of PaCCS, who allegedly under assessed the goods (despite not). In the case of Eastern Rice Syndicate v. Collector of Customs (PLD 1959 SC 364) the Supreme Court had held that in order to attract penal provision of Section 39 (now Section 32), it must be established that the person who alleged to have made any statement in a document, submitted to the customs authorities must be false to his knowledge, and it would depend upon the circumstances of each case. It is not disputed here that the statement made in the Customs Documents by appellant regarding the nature of the goods imported were in any way wrong; rather that information was found correct and true.

 

(xvii) The appellant is fortified to rely on the judgment of the Customs Appellate Tribunal given in Customs Appeal No. K-198/2004 reported as 2005 PTD (Trib.) 196. Wherein the learned Member of the Tribunal observed “issuance of show cause notice for confiscation of the goods, in the circumstances of ab initio wrong as within the framework of S. 32 of the Customs Act, 1969 no un-true statement was ever made either by the importer or by the appellant agent.—Even otherwise if any mischief was done, it was Assessing Officer who should have been found guilty for making a wrong assessment and even otherwise and agent and importer could not be held responsible.”

 

(xviii) That it is settled principle of law in Customs Jurisprudence/ through a series of judicial fora of Indian and Pakistani Jurisprudence starting with the case of Monno Industries Ltd. v. GOP reported as 2002 MLD 1980 State Cement Corporation v. GOP, wherein it is held that “if the wisdom of Customs Authorities for invoking Sections 32 and 32A despite giving correct declaration is acceded to that no responsibility lays upon the hierarchy of the Customs officials to levy and assess the duty according to law. The provisions of Section 80(I) of the Customs Act, 1969 in such a state of mind would become redundants.” The observation of the Honourable Late Justice Sabihuddin Ahmed in the case of State Cement v. Government of Pakistan reported as 2002 MLD 1980 would once again ridicule the irrational approach of the Customs Authorities, which read as “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. Whereas the Hon’ble Supreme Court of Pakistan while dismissing the appeal held in the reported judgment 2011 PTD 2220 Collector of Customs, Preventive, Karachi v. Pakistan State Oil Karachi that “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.

 

5. The Advocate of the Appellant further stated in connection with the filed Appeal No. 556/2014 that the respondent No. 2 is empowered to conduct audit under Section 26A of the Customs Act, 1969 within 03 years from the date of clearance in terms of Section 32(3A) of the Customs Act, 1969 as was prior to amendment through Finance Act, 2011. In the instant case the date of clearance of Goods Declaration Nos. (i) I – HC – 1085199-24072000 (ii) I – HC – 1270853 – 08012001 (iii) I-HC-1358740-26032001 (iv) I-HC-1445300-17062001 (v) I-HC-1488309-28072001 (vi) I-HC-1488299-28072001 are 26.07.2000 to 30.07.2001 and contravention report has been framed on 28.10.2011 on the strength of which show cause notices dated 25.11.2011 has been issued. Rendering it to the extent of the referred GD’s barred by more than 10 years. Hence, without power/jurisdiction and as such not enforceable under law and this has been held in reported judgment S.T.A. 274/05 in Sattar Brothers v. Collector of Customs (Appeals), Hyderabad and others, S.T.A. 179/06 in Dadabuoy Sack Ltd. v. The Collector of Customs, Sales Tax and Federal Excise (Appeals) Hyderabad and others, 2009 PTD (Trib.) 500 in Shah Murad Sugar Mills and others 2007 PTD 117, Messrs Ghandhara Nissan Diesel Ltd. v. The Collector of Customs, Karachi. 2005 PTD 2453 PSIC Cutlery, Wazirabad v. Collector of Sales Tax and Central Excise, Gujranwala and others 2008 PTD 981 Joyla Sadat Cotton Industries v. Collector of Customs 1992 SCMR 1898 Federation of Pakistan v. Messrs Ebrahim Textile Mils Ltd. and others 2006 PTD 537, Collector of Customs, Sales Tax (West) Karachi v. K&A Industries, Karachi.

 

6. Additionally, the Advocate of Appellant further elaborated in regards to the grounds taken in Appeal No. K-588/2012:

 

(i) The Government of Pakistan in exercise of power conferred under Section 3 of Customs Act, 1969 (VI of 1969) read with Section 179 thereof has withdrawn the power of adjudication from the Executive Collectorate and has formed Collectorate of Customs (Adjudication) through SRO No. 886(I)/2012 dated 18.07.2012 and which is effective from 01.08.2012, Meaning thereby that every adjudication after 01.08.2012 has to be done by the Officer of Collectorate of Customs (Adjudication) and not by the Executive Collectorate. While passing order dated 16.10.2012 the respondent has transgressed the authority vested with the Collectorate of Customs (Adjudication) rendering the order-in-original and the connected show cause notice being in-flagrant violation of law and as such coram non judice, hence void and ab-initio.

 

(ii) That irrespective of the above illegality, it is of vital importance to invite the attention of the Hon’ble Tribunal that the respondent No. 1 in the case of the appellant issued show cause notice on 21.12.2011 and an order under the proviso of subsection (3) of Section 179 of the Customs Act, 1969 should had to be passed within 120 days from the date of issuance of show cause notice i.e. by 20.04.2012 or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing by the FBR. No extension was obtained/granted by FBR prior to expiry of initial period of 120 days i.e. before 20.04.2012. Instead as evident from para 15 of the order, the Board extended the period upto 30.10.2012, however, no letter number of the Board has been mentioned by the respondent No. 1, presumption is that there exist no letter confirming that the Board extended the said period prior to expiry of initial period of 120 days i.e. on or before 20.04.2012. Instead the order has been passed on 16.10.2012 i.e. after lapse of 179 days rendering the order-in-original dated 16.10.2012 barred by time by 179 days. Hence, without power/jurisdiction and not enforceable under law, as such ab-initio void as held in reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and [2009 PTD 1978] Leo Enterprises v. President of Pakistan and others, 2010 PTD (Trib.) 1010 Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others.

 

7. No cross objection under subsection (4) of Section 194-A of the Customs Act, 1969 has been submitted by either of the respondents to this date, instead comments were submitted half heartedly in stereo typical manner simply laying emphasis that the grounds taken by the appellant in the memo of appeal are incorrect and misleading, no reasoning for reaching to the said conclusion have been provided nor documents in support of their stance. Even on the date of hearing Mr. Haroon Khan the Advocate and Mr. Faiz Muddasir Appraiser failed to assist us. The edifice of their arguments were that the charges framed in the contravention reports by the respondent No. 2 and leveled in the show cause notice and held in the order-in-original are correct and no infirmity is visible as evident from the fact that the respondent No. 1 assumed the powers of adjudicating the instant case relating to short payment of Federal Excise Duty, Sales Tax and Income Tax in compliance with the direction of the Board communicated vide letter dated 06.08.2012, in the light of Office Memorandum dated 11.07.2012 of Ministry of Law and Justice containing legal opinion to the said effect, which was arrived at in view of Section 7 to be read with Section 3(2) of the Federal Excise Act, 2005. Therefore, the order is correct in facts and law and the appeals merit no consideration and be dismissed as of no substance.

 

8. After giving the anxious thought to the arguments placed by both the parties and perusal of the record file, ably deliberation guided us to made the observations on the controversy raised specifically in the subject appeals. First of all upon perusal of Section 29 of the Federal Excise Act, 2005 and Section 228 of the Income Tax Ordinance, we found that the respondent No. 2 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. 2 is not at all appointed /designated as Officer of Inland Revenue. The Board to the contrary issued Notification No. 165(I)/2011 dated 03.03.2011 under which the Officers of Directorate General of Post Clearance Audit have been delegated powers under different Sections of Federal Excise Act, 2005 in exercise of the powers vested under Section 29 ibid., without taking into consideration that the legislature has not appointed the Officers of Directorate General of Post Clearance Audit as Officers of Inland Revenue under the said Section. Rendering the issuance of notification without powers, therefore, invalid and ultra vires and not enforceable. Resultant, respondent No. 2 cannot exercise powers under the Sections of the Federal Excise Act, 2005 specified in column (4) of the notification. Likewise the respondent No. 2 is 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 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 cannot be delegated through any S.R.O. 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”.

 

9. The respondent No. 2 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 & (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 & (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 and the citation given by the appellant in para 5(iii) supra are fully applicable with force.

 

10. We have also noticed with concern that, the respondent No. 1 in the show cause notice has invoked Section 14 of the Federal Excise Act, 2005, Section 36 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. The Advocate of the appellant has strongly contended that, he has not been appointed as Officer of Inland Revenue under Section 29 of the Federal Excise Act, 1990, Section 30 of the Sales Tax Act, 1990 and Section 228 of the Income Tax Ordinance, 2001 therefore has no powers to proceed in the matter of Federal Excise, Sales Tax and Income Tax under the invoked sections in the show cause notice for recovery of short paid duty and taxes. On the other hand the respondent are of the opinion that the Customs is empowered to collect the Federal Excise Duty, Sales Tax and Income Tax at import stage under Section 3 of the Federal Excise Act, 2005, Section 6 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 and can also recover the Federal Excise Duty and Taxes under the provision of Section 202 of the Customs Act, 1969 as clarified by the Ministry of Law and Justice vide O.M. No. F.242/2012-Law-I dated 11.07.2012 circulated by Board vide letter C. No. TAR-1/90 dated 06.08.2012. For determination of the jurisdiction.

 

11. Now for further distinction of powers and observations made thereon, the conscientious study of Section 29 of the F.E. Act, 2005, Section 30 of Sales Tax Act, 1990 and Section 207 of the Income Tax Ordinance, 2001, 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 PaCCS 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 36 of the Sales Tax Act, 1990 and Section 162 (1) of the Income Tax Ordinance, 2001. Reliance of respondents on the O.M. No. F.242/2012-Law-I dated 11.07.2012 lend no help as Ministry of Law and Justice has 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. Assuming power on the strength of letter of the Ministry of Law and Justice is palpably illegal beside fatal to the health of the case. Even otherwise, the letter of the Ministry of Law and Justice speaks about collection of Federal Excise Duty at import stage in the same manner and at the same time, as if it is a duty of customs payable under the Customs Act, 1969 (IV of 1969) and for collection of the same the provision of Section 31A also apply. Reference of Section 7 of the Federal Excise Act, 2005 has also been given simply for clarification that for collection of import duty provision of Sales Tax, 1990 is applicable. The emphasis in the O.M. is levy and collection. To further elaborate and settling the issue to its logical conclusion, we 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 customs duty on the value determined under Section 25 of the Customs Act, 1969. These sections least empowers the Officers of Customs including the respondent No. 1 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. For proceeding for these type of recovery a show cause notice has to be issued under the Provision of Section 14 of Federal Excise Act, 2005, Section 36 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, the authority to issue show cause notice under subsection (3) of Section 36 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001 are Officer of Inland Revenue and the Commissioner of Income Tax, in these sections also neither officer of Customs and respondent No. 2 figures anywhere. He assumed the power not vested with him under the provision of Sections 14, 36 and 162(1) of the of Federal Excise Act, 2005, Sales Tax Act, 1990 and Income Tax Ordinance, 2001. Therefore, the Customs Collectorates have powers to collect Import Duty, Sales Tax and Income Tax as duty at import stage not post importation, as regards to the plea that Customs is empowered to recover the short paid amount at the import stage under Section 202 of the Customs Act, 1969 is based on mistaken belief, infact the customs Collectorate could recover the amount of Federal Excise duty, Sales Tax and Income Tax upon receipt of notice from the Officer of Inland Revenue and Commissioner of Income Tax under Rule 60 of the Federal Excise Rules, 2005, Section 48 Sales Tax Act, 1990 and Section 140 of the Income Tax Ordinance for recovery of the adjudged amount of Federal Excise Duty, Sales Tax and Income Tax after due process of law and to further clarify, reference is made to the provisions of Section 14A of the Federal Excise Act, 2005, Rule 60 of the Federal Excise Rules, 2005, Section 48 of the Sales Tax Act, 1990 and Section 140 of the Income Tax Ordinance, 2001, reproduced above. On the strength of above deliberation, it is our considered opinion 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 Customs 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, 11 and 162(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 Sections 48 and 140 ibid. Resultant adjudication proceeding under section 14 of Federal Excise Act, 2005, Section 11 of the Sales Tax, 1990 and Section 148 of the Income Tax Ordinance, 2001 (as mentioned in the Show Cause notice) is not legal, justifiable and tenable in the eyes of the law, nor inconsonance with the reported/unreported judgments incorporated here-in-below:

Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi reported at 2011 PTD (Trib.) 110, it was held that:–

“Escaped ‘advance tax’ cannot be followed and/or recovered by the ‘customs Officials’ under the powers conferred upon them under Section 148(5)(6) of the Income Tax Ordinance, 2001, rather it is the Commissioner of Income Tax who under Section 162 of the Income Tax Ordinance, 2001 can follow and collect the short recovery of any tax chargeable under Section 148(5)(6) of the Income Tax Ordinance, 2001.”

 

12. Similarly, the Customs Appellate Tribunal, Islamabad Bench in the case of Messrs Global Marketing Services and another v. Model Customs Collectorate and another reported at 2010 PTD (Trib.) 2086 held that:–

“Only the Commissioner of Income Tax can exercise his powers under Section 162 of the Income Tax Ordinance, 2001, on account of default or non payment of tax or if there is a lapse on the part of collecting officer, it could not be said that the collecting Officer can himself automatically presume the jurisdiction of recovery of amount of Income Tax on the basis of assumption or being the Officer of Customs or as a collecting Officer under Section 148 of the Income Tax Ordinance, 2001, until the specific powers have been given to him under the law. Hence, it is observed that the Collector of Customs do not have the authority to recover the Income Tax later on but he is only getting the power of collection of tax under Section 148 of the Income Tax Ordinance, 2001 therefore mere collection does not mean that he can go for the recovery at the later stage, if he default is made by the persons. To whom the amount of Income Tax is due, the best possibility of recovery according to scheme of law is that after realizing the amount of Income Tax in form of audit or investigation, the collecting Officer can refer the matter to the Commissioner of Income Tax for taking the action of recovery under Section 162 of the Income Tax Ordinance, 2001. This is also a settled principal of law that a person cannot be tried on the same offence by two forums, he could be tried only where the clear cut provisions of law are available, therefore, in my opinion Section 148 of the collection to the Customs Department and the power of recovery in case of default under Section 148 of the Income Tax Ordinance, 2001 vests with Income Tax Department and the Commissioner of Income Tax as prescribed can go for recovery.”

“The power to collect the advance Income Tax under Section 148(5) of the Income Tax Ordinance, 2001 cannot have the effect of converting Income Tax into Customs duty. Merely providing the manner of collection of tax as an advance tax under any tax enactment, the nature of the tax could not be changed, hence, the short recovery of any tax collectable under Section 148(5)(6) of the Income Tax Ordinance, 2001 to a person in form of short collected short levied or not so collected, either on account of mis-declaration of the importer, or, on account or error, or in-advertence or under mistake, vests with the Commissioner of Income Tax along under Section 162(I) of the Income Tax Ordinance, 2001. The Collector of customs do not have the authority to go for the recovery, it is the only the Commissioner of Income Tax alone under Section 162(1) of the Income Tax Ordinance, 2001. The Collector of Customs do not have the authority to go for the recovery, it is the only Commissioner of the Income Tax who can start the proceedings of recovery against the person in case of default on short collected, short levied or not so collected, either on account of mis-declaration of the importer, or on account of error, or inadvertence or under mistake, so the adjudication by the respondent’s to the point of recovery of Income tax against the appellants is not legal, justifiable and not tenable in the eye of law and the exercising of jurisdiction on this point by the respondent and also the adoption of recovery procedure by them are hereby set aside.”

“It is declared that the respondent’s wrong assumed the jurisdiction on the show cause notice and over the corrigendum, therefore, their exercise of jurisdiction was not legal justifiable and also not within the four corners of law. It is further declared that the respondents action/procedure for recovery to recover the amount of Income Tax from the appellants is also not legal, vide ab-initio without any legal jurisdiction/authority and the same is also against the mandatory provision of law.”

 

13. This judgment was challenged before the Islamabad High Court through Customs Reference No. 01/2010 by the Collector of Customs, Islamabad and was dismissed by the order dated 15.05.2013, while answering all the questions in negative and against the petitioner. Similarly, Bench-I of this Tribunal held in reported judgment 2014 PTD (Trib.) 299 M.I. Traders v. Additional Collector of Customs held that:–

“It is my considered opinion that respondent does have the authority to collect sales tax, Income Tax and Federal excise duty at import stage. In the capacity of collecting agent and not empowered to adjudicate the cases of short payment/recovery due to any reason as expressed in respective Sections of the Acts/Ordinance, hence the contention of the respondent representative that customs is empowered to adjudicate the cases of sales tax, income tax and Federal Excise Duty is not legal, justifiable and tenable in the eyes of law. Instead void ab-initio and corum non judice.”

 

14. In the issue similar to subject appeal the Hon’ble High Court of Sindh held in reported judgment 2004 PTD 801 Al-Haaj Industrial Corporation (Pvt.) Ltd., Peshawar v. Collector of Customs (Appraisement) that:–

“it already stand decided that merely by providing manner and time of collection of tax under any tax enactment, the nature of the tax shall not be changed, meaning thereby that if advanced tax under Section 50(5) of the Ordinance can be collected as customs duty and can be recovered by the Customs Officials under Section 202 of the Customs Act, 1969 it will not change the nature of the tax and the income tax shall not become the custom duty the power to collect the advanced income tax under Section 50(5) of the Ordinance by the Collector of Customs, shall not have the effect of converting the income tax into customs duty and consequently the customs Officials shall be empowered by virtue of the provision contained in the Income Tax and Customs Act, merely to collect the determined amount of tax and shall not have the Authority to resort the chargeability or assessment of a tax. When the income tax shall not be changed into customs duty, the applicability of Section 156 of the Customs Act, 1969 shall be excluded as a logical conclusion.

 

15. Similarly, the Division Bench of High Court of Sindh in an unreported case of Messrs Lucky Cement Ltd. v. Federation of Pakistan and others through judgment dated 26.02.2013 in C.P. No. D-216/2013 set-aside and quashed the proceeding emanating out of FIR registered under the Customs Act, 1969 before the Court of Special Judge Customs and Taxation, Karachi by exercising the jurisdiction under Article 199 of the Constitution. The FIR in the matter has been registered for the alleged evasion of advanced Income Tax liable to be deducted at import stage. Inspite of reaching to the conclusion that the petition was liable to pay advance tax at import stage, held in paras 25 to 28 that:

“25. The FIR has been registered by invoking clauses (14), (14A) and (77) of Section 156(I) of the Customs Act. Now clause (14) makes a criminal offence of a violation of Section 32(1) and clause (14A) makes a criminal offence of a violation of Section 32A(1) provides as follows: “if any person, in connection with any matter of customs .” And then follows the prescribed acts that are criminalized in clause (14). Section 32A(1) opens as follows “if any person, in connection with any matter related to customs .” And again, then follow the prescribed acts that are criminalized in clause (14A) it will be seen that it is of the essence in each case that the offence should have been committed in connection with any matter of or relating to customs. In our view, this essential element is entirely, and necessarily, missing in the present case. Whatever is done in terms of Section 148 is in connection with or relating to income tax and not to customs. The jurisdiction conferred on the Collector of customs is obviously only by way of administrative convenience. He is a creature of the Customs Act and is empowered and obligated under that statute to collect, and if necessary recover and enforce, customs duty. The 2001 Ordinance (like the 1979 Ordinance) found it expedient to empower him to a carefully limited extent in respect of collection of advance income tax. But the fact that the Collector of Customs is dealing with such collection does not make the matter of it a matter of or relating to customs. It remains and retains its character of being a matter exclusively of income tax. Since a key element, laid down at the very beginning of Sections 32 and 32A is entirely (and necessarily) not applicable in relation to Section 148, it follows that no offence under the former provisions could be made out for the purposes of clauses (14) and (14A) of Section 156(1) of the Customs Act in respect thereof.

26. Clause (77) of Section 156(1) has three sub-clauses of which only the first could conceivably apply in the present case. This provides as follows (emphasis supplied).

“if any person counterfeits, falsifies or fraudulently alters or destroys any declaration, statement or documents in the transaction of any business relating to the customs or any seal, signature, initials or other mark made or impressed by any Officer of customs in the transaction of any business relating to customs” [he then commits an offence]

As the portions emphasized indicate, the same reasoning applies in relation to clause (77) as just noted in relation to Section 32/ clause (14) and Section 32A/clause (14A), therefore, it likewise follows that no offence under this clause could be made out in respect or for purposes of anything done in relation to Section 148.

27. It is also pertinent to note that in the FIR, itself, in para No.9 where the nature of the offence has to be stated, it is noted as follows: “attempt to evade Income Tax @ 5% amounting to Rs.44795897/- through fraudulent documentation by misusing exemption”. Thus, even the customs authorities themselves expressly recognize that the matter was one relating solely and exclusively to income tax and not to anything in relation to or in connection with customs. This serves to further confirms the conclusions already arrived at.

28. In view of the foregoing, we are of the view that the customs authorities had no jurisdiction to register the FIR under the customs Act in relation to the petitioner’s claim that it is not obligated to pay advance income tax and in any case, that matter being entirely in relation to income tax could not be an offence under any of the three clauses of Section 156(1) that have been invoked. It follows that the FIR is a nullity and completely contrary to law. It cannot be sustained and is liable to be quashed in view of the foregoing position. It is not necessary for us to examine the matter on the merits in relation to the FIR.”

 

16. The Hon’ble High Court of Sindh in reported judgment 2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others held that:–

“the customs authorities have no powers under law to restrict release of ‘duty paid consignment’ on the plea that imported goods were liable to be assessed at the rate of 5% of ‘advance tax’ [prescribed for one’s own manufacturing used] and not at reduced rate of 3% of ‘advance tax’ [prescribed for industrial used]. Such act of custom authority was without jurisdiction and lawful authority. Custom authorities under law were merely collection agent on behalf of Inland Revenue Department for collection of ‘advance tax’. Denying refusal of the consignment on the pretext that income tax is payable @ 5% as against 3% on the basis of reduced rate certificate issued by the Commissioner of Inland Revenue is not only arbitrary, mala fide but also without any jurisdiction, hence illegal, void and ab-initio”.

 

17. The opinion formed further stood validated in addition to the above referred judgments from the judgments of 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23 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., it was 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 imported by implication.”

 

18. It has been held in another judgment of Hon’ble Lahore High Court, Lahore 2008 PTD 1973 titled as Xen Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax, Faisalabad, –

“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”

 

19. The Hon’ble Supreme Court of Pakistan in reported judgment 2006 PTD 129 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others held that:–

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

 

20. We, therefore hold that the exercise of jurisdiction on this point by the respondent No. 1 is without lawful authority and jurisdiction. Hence, issuance of show cause notices and passing of orders-in-original are ab-initio void and as such coram non-judice.

 

21. Now, we referred to the grounds taken in Appeal No. K-588/ 2014, the Government of Pakistan in exercise of power conferred under Section 3 of Customs Act, 1969 (IV of 1969) read with Section 179 thereof has withdrawn the power of adjudication from the Executive Collectorate and has formed Collectorate of Customs (Adjudication) vide S.R.O. No. 886(I)/2012 dated 18.07.2012, which is effective from 01.08.2012. The respondent No. 1 in the capacity of Collector of Customs, MCC of Appraisement is non-existent authority in the S.R.O. No. 886(I)/2012 dated 18.07.2012 w.e.f. 01.08.201, instead he passed order-in-original dated 10.10.2012 beyond 31.07.2012, when he was empowered to adjudicate the cases of such type. Rendering, the whole exercise of passing order as coram-non-judice as contended by the appellant Advocate. Resultant, the arguments of the appellant advocate carries weight and we hold that respondent No. 1 is a non existent authority under Section 179 of the Customs Act, 1969 on the date of passing order and he was not empowered to pass order, which he did in spite not warranted under law. The argument of the respondent advocate that the Board have issued directions through various letters empowering the Officer of Executive Collectorate to Adjudicate cases beyond 01.08.2012 hold no ground as order so issued by the Board is also illegal by virtue of the fact that a notification can be amended through a subsequent notification and not by any executive orders. On this issue, we have already held in Customs Appeal No. K-24/2013 Messrs Paramount Corporation v. Additional Collector of Customs (Adjudication) MCC (PaCCS) and in 2014 PTD (Trib) 510 S.S. Trading v. Additional Collector of Customs and another that “the Board can only amend a notification in terms of section 5(1) read with Section 179(2) of the Customs Act, through notification for dispensation of the powers, to overcome the exceptional circumstances caused during the transitional period faced by the respondent Collectorate. The subject legal infirmities were communicated officially through official correspondence to the Board by the Executive Collectorate even then the Board has not made any compliance, the Board had not made any plausible efforts to address the said situation and never tried to issue notification for entrustment of powers for conducting the adjudication proceeding in accordance with law. It is well settled principle of law that, 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 objectives of performing or doing of a thing in a manner other than provided by law would not be permitted”, therefore we hold that the order dated 10.10.2012 is without power/jurisdiction, hence void ab-initio, the judgments reported at 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838, 2003 SCMR 1505, 2006 SCMR 129, PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184 are direct authority on the point of powers/jurisdiction. Hence, coram-non-judice.

 

22. That the show cause notice in the instant case was issued on 21.12.2011 by the respondent No. 1 and an order under the proviso of subsection (3) of Section 179 of the Customs Act, 1969 should had been passed by him within 120 days i.e. on or before 19.04.2012, time sought through adjournment by the appellant of 30 days has to be added in the said period, resultant, the time for passing order by respondent No. 1 is extended by 30 days and he has to pass order on or before 19.05.2012. However, no order was passed by the said date and the time was extended by 60 days by the respondent No.1 himself under subsection (4) of Section 179 of the Customs Act, 1969 as evident from para 6 of the order and that also without serving notice to the appellant as per law laid down by the Hon’ble Supreme Court of Pakistan in reported judgment 1993 SCMR 1881 Khalid Mahmood v. Collector of Customs and without recording reason for the extension based on “exceptional circumstances”. In terms of subsection (4) of section 179 of the Customs Act, 1969, the Board is empowered after meeting the mandated requirement of the expression and the law laid down by the Apex Court and by none else including respondent No. 1. Resultant, extension given by him on or before 19.05.2012 is without lawful authority/jurisdiction and similarly the extension given as stated in the para by the Board after the expiry of initial period of 120 days i.e. 20.05.2012. Rendering the order-in-original dated 10.10.2012 barred by time by 179 days. Hence, without power/jurisdiction and not enforceable as held in reported judgments 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax, Gujranwala and 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others and 2009 PTD (Trib.) 1263 Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others 2009 PTD 1978 Leo Enterprises v. President of Pakistan and others, 2010 PTD (Trib.) 1010 Innovative Impex, v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS, 2011 PTD (Trib.)1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD 275 Pak Electron Ltd. v. Collector of Customs, Lahore and others.

 

23. Reverting back to the case in hand, in terms of Section 26A of the Customs Act, 1969 the respondent No.2 is empowered to conduct audit of the imported consignment/Goods Declaration within 03 years from the date of clearance as expressed in Section 32(3A) ibid as was prior to amendment through Finance Act, 2011. In the instant case the date of clearance of the Goods Declaration bearing No. (i) I-HC- 1085199-24072000 (ii) I-HC-1270853-08012001 (iii) I-HC- 1358740-26032001 (iv) I-HC-1445300-17062001 (v) I-HC- 1488309-28072001 (vi) I-HC-1488299-28072001 are 26.07.2000 to 30.07.2001 referred in the show cause notice were 26.07.2000 to 30.07.2001. Audit of those were conducted in the year 2011 as evident from contravention report dated 28.10.2011 on the strength of which show cause notice dated 25.11.2011 has been issued i.e. after 10 years of the date of clearance, which is in derogation of the provision of Section 32(3A) of the Customs Act, 1969, rendering the audit, preparation of audit observation contravention report, show cause notice and passed order-in-original in negation of the provision of Section 32(3A) ibid., hence, time barred, and not enforceable under law. The judgments referred by the appellant in para 6 supra are relevant and applicable in the case of appellant with full force.

 

24. We have examined the Goods Declaration of the consignment and have observed that the appellants transmitted those under Section 79(1) of the Customs Act, 1969 and Rule 433 of Sub-Chapter (III) of Chapter XXI of Customs Rule, 2001 with the MCC of PaCCS containing description of goods as Malboro Cigarette and these Goods Declarations were selected either by the system directly for assessment or examination in terms of Section 198 of the Customs Act, 1969 and Rule 435 ibid. The assessing officer in case of agreement of the declaration passed assessment orders under Section 80 and Rule 438 of the Act/Rules and communicated the view messages to the appellants for payment of additional amount of duty and taxes or filing review against the assessment order under Rule 441 ibid. In case the assessing officer had doubt on the declaration, they suggested for conduction of examination under the respective Section/Rule and referred the same to the Assistant/ Deputy Collector of the Group for endorsement after affirmation to the said fact. The Goods Declaration were referred for examination and the Officer of the Customs posted at Terminals after examination of the goods physically, posted the reports in the system, prominently indicating the description “Cigarette” for perusal of the Assessing Officers, who upon appearance of same on their desktop, if being satisfied passed the Assessment Orders or in case felt that of further confirmation is desired transmitted view messages under Rule 437 for scanning of additional documents, which are mandatory to be scanned being pre-requisite as these form part of declaration under Section 2(kka) of the Customs Act, 1969 made under Section 79 and Rule 433 ibid. The Assessment Orders in the Goods Declaration corresponding to these appeals have been passed by the competent Authority defined in Section 2(a) under section 80 ibid on the basis of entire declaration after receipt of examination report, scanned documents and after rejection/ acceptance of the reviews filed under Rule 441 ibid. In case the competent assessing authority would had felt that the imported goods attracted payment of Federal Excise Duty other than the fed by the Board in the software, they are empowered to correct that on their own or if they are unable to do so, request PRAL/Board to do so as this their prescribed and in built duty under the provision of Section 80(1) and Rule 438 ibid, which read as “on the receipt of the goods declaration under section 79 an officer of Customs shall satisfied himself regarding correctness of the particulars of the import, including declaration, assessment and in case of customs computerized system payment of duty and taxes and other charges thereon.” And “where any declaration has been filed under Rule 433 or additional documents have been submitted under Rule 437 the customs shall satisfy 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. It has to be noted that the word “assessment” denotes every aspects of Goods Declaration including description, quantity, value and PCT. Therefore, the Advocate and representative of the respondents were confronted with the said fact, they took the plea that the assessment/clearance order under sections 80 and 83 and Rules 438 and 442 ibid were passed by the software itself, this is contrary to the devised system and the practice in vogue for these types of consignment i.e. Cigarette. Notwithstanding, the representative of the MCC of PaCCS was asked that as to whether the reassessment was made subsequent to clearance as expressed in Section 80 ibid and to place before the Tribunal the record of each Goods Declaration and view messages transmitted to appellant under Section 155Q of the Customs Act, 1969 and Rules 433, 435, 437, 438 and 442, in addition to the reviews filed by the appellant before the designated authority under Rule 441 ibid, which are to be kept in record by the Collectorate in terms of Section 155G ibid. or any incriminating evidence confirming that the appellants hacked the system and passed the Assessment orders themselves, for supporting the allegations leveled in the show cause notice and held in the order-in-original and argument adopted during the course of hearing because it is on the Customs to prove the allegation in terms of Articles 117 and 121 of Qanun-e-Shahadat (10 of 1984), answer to the queries were in negative, i.e. since the software of PaCCS has been off loaded, no reassessments have been made to this date and no record is available. This argument amazed us about the standard of working of the respondent Collectorate and Adjudication, in addition to flagrant violation of Section 80(1) beside defiance of the provision of Section 155G and Law of Evidence. That as per law laid down in PLD 1975 Kar. 458; PLD 1973 Kar 659; Cross on evidence 1967, 3rd Edn., London Butterworth; A Practical Approach to Evidence by Peter Murphy 1988 3rd Edn. London, Black Stone Press Ltd; The Modern Law of evidence by Adrian Kean 1985, 1st Den. Oxford, Professional Books Ltd. PLD 1965 Lah. 576; PLD 1980 Lahore. 145; 1983 CLC 414; 1982 CLC 1286, 1984 CLC 325; PLD 1959 SC (Pak) 364; 1969 SCMR 708 and 1992 SCMR 1083. Ultimate burden of proof lays upon the Customs Authorities, which has not been discharged, we therefore hold that these cases are based on no evidence while putting reliance on the land mark reported judgments PLD 1952 Federal Court 19 and PLD 1996 Karachi 68 Kamran Industries v. Collector of Customs (Exports) and PLD 1952 Federal Court 19). Wherein their Lordship of the High Court held:–

“For every offence for which the accused is charged under the Customs Act he shall have to disprove the allegation of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statues which could be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discretion vested upon the executive authorities. As absolute power corrupts an interpretation fettering the discretion of the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to Section 187 the entire burden to disprove the entire case rest upon the accused alone. The executive authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided.

 

25. The Assessment Order passed under Section 80 of the Customs Act, 1969 and Rule 438 of sub-chapter (III) of Chapter XXI of Customs Rules, 2001 by the authority defined in Section 2(a) is an order as interpreted in Section 193 of the Customs Act, 1969 and reported judgment at PLD 1986 Lah. 237 as follows:–

” .the word ‘order’ is not being a term of art has no fixed legal meaning. According to Prem’s Judicial Dictionary, it covers commands or directions that something shall be done….the term order in general is comprehensive enough to include all kinds of order including a formal order.”

 

26. In the instant cases, it is an admitted fact that against the appellant Goods Declaration assessment order were validly passed by the competent authority defined in Section 2(a) under Section 80 of the Customs Act, 1969 and these orders are appealable orders as expressed in Section 193 ibid. Since prior to amendment in Section 193 of the Customs Act, 1969 through Finance Act, 2012 right of appeal was not available to the respondent Collectorate, the only option available with the Collector of Customs of its jurisdiction was to reopen a past and closed transaction i.e. assessment orders in exercise of the power vested upon him through the framework of Section 195 of the Customs Act, 1969. As it is settled law that order in field cannot be substituted with another order reference is made to the Hon’ble High Court of Sindh reported judgment M/s. Smith Kline French v. Pakistan reported as 2004 PTD 3020 held that “once an order is passed, which attains finality, the same cannot be subject to a show cause notice again, considering that no appeal or revision is filed against the first order as this is in derogation of Court to be in derogation of the principles of administration of justice”.

 

27. In these cases the assessment orders passed by the authority defined in Section 2(a) could had been only be reopened by the Collector under Section 195 ibid. to examine the record of any proceedings conducted under this Act for the purposes and satisfying himself as to the legality or the propriety of the order passed by the assessing officer, this has not been done, instead the respondents reopened the orders while usurping the power of the Collector, rendering the contravention report and issuance of show cause notice and subsequent orders as being without power/jurisdiction, hence ab-initio void and as such coram non judice.

 

28. Notwithstanding, in order to understand the application of Section 195 of the Customs Act, 1969, orders can be reopened by the Collector, which suffers from irregularity and impropriety, reference is made to Black’s Law Dictionary in respect of the word “illegal” which means unlawful in and of itself and not because of some extraneous circumstances e.g. a contract to assassinate a public official”. On the other hand the word “improper” has been defined as “Not suitable; unfit; not suited to the correct time and place. Not in accordance with fact, truth, or right procedure and not in accord with propriety, modesty, good taste, or good manners”. These two terms, therefore, have nexus with the abuse of power by the subordinate officers and otherwise the ethical moorings of a civil society, in relation to the relevant law. The revisional powers conferred vide Section 195 do not authorize even the Collector of Customs to examine issue not falling within the scope of the terms “legality” and “propriety”. It means, that the powers under Section 195 are limited, compared to an appeal before a competent authority. Setting aside assessment/clearance orders passed under Sections 80 and 83 of this Act and Rules 438 and 442 of Sub-Chapter (III) of Chapter XXI of the Customs Rules, 2001 are type of orders, which could be revised by the Revisional Authority under Section 195, for the simple reason, that such orders are subject to the satisfaction of the Collector of Customs which must be arrived at fairly and not arbitrarily as observed in the case East Jamunia Co. (Pvt.) Ltd. Calcutta v. Collector of Customs, Calcutta reported as 1978 ECR 790. In Council of Civil Service Union v. Minister for the Civil Service reported as (1985) AC 374 and 410, it was said by Lord Diplock, that the Courts usually review an exercise of power to ensure that a public body:

 

(i) has not made an error of law.

 

(ii) has considered all the relevant factors, and not taken into account any irrelevant factors.

 

(iii) has acted for a purpose expressly or impliedly authorized by statute.

 

(iv) has not acted in a way that is so unreasonable, that no reasonable public body would act in that way;

 

(v) that the public body has observed statutory procedural requirements of the principles of natural justice or procedural fairness.

 

29. Even in those cases where goods are cleared by customs officer after physical verification in exercise of the powers conferred through Section 198 and Rule 435 ibid and passing of valid assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 ibid, goods cannot be confiscated except in pursuance of orders passed under Section 195 ibid. as adjudged by Bombay High Court in its judgment reported as Union of India v. Popular Dechem 1987 [ELT 63] Bom. Even a bill of entry cleared for home consumption on order of an Appraiser and countersigned by the Assistant Collector constitutes an order of adjudication as observed by the Dehli and Madaras High Courts in their judgments reported as [1982 ELT 43 (Del) and judgment of Madras High Court in W.Ps. Nos.5296, 5297 and 5654 of 1979 and of this Tribunal many unreported judgments for reference see reported judgment 2011 PTD (Trib.) 2480 Malik Vetro Designi and 25 others v. Collector of Customs, Appeals and 03 others.

 

30. In these cases the Competent Officers passed order after scrutinizing the customs/commercial documents scanned by appellant and uploaded examination report, while exercising their authority expertise and wisdom. In view of the aforesaid the respondents are not allowed to take a complete U-turn at belated stage to start adjudication of past and closed transactions through issuance of show cause notices and adjudication orders under Section 179 of the Customs Act, 1969 when a lawful course has been prescribed by the legislature in Section 195 of the Customs Act, 1969 for reopening of such decisions or orders by Board or Collector. For ease of reference Section 195 of Customs Act is reproduced below:–

195 Powers of Board or Collector [***] to pass certain order:–(1) The Board or the Collector of Customs [or the Collector of Customs (Adjudication) may, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself, or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit:

Provided that no order confiscating goods of greater value or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorized by him.

(2) No record of any proceedings relating to any decision or order passed by an officer or customs shall be called for or examined under subsection (1) after the expiry of two years from the date of such decision or order.

 

31. It is a settled law that an order or decision passed or taken by the subordinate officer can only be corrected in revisional power and not under Section 32 of the Customs Act, 1969 since the Collector or the Federal Board of Revenue exercise their revisional powers or correctional jurisdiction in terms of Section 195 of the Customs Act. For adjudication of a case through issuance of show cause notice, the proof of mis-declaration has to be prima facie present in the first instance if allegation of mis-declaration is to be leveled against the taxpayer in terms of Section 32 of the Customs Act, 1969 through issuance of show cause notice by the officer of original jurisdiction. When the consignments were released on the basis of commercial documents and physical examination by the Examining and Assessing Officers, the charges subsequently leveled at against the appellants under Sections 32 and 32(3A) of the Customs Act, 1969 are unsubstantiated once the goods have left the customs/port area in terms of Hon’ble High Court’s judgments reported as 2008 PTD 1968 wherein the Hon’ble High Court of Sindh has observed that “it is a settled principle that after clearance of goods and remand of consignment from customs area, customs authorities are functus officio to reopen the case again as it becomes a past and closed transaction. Their lordships also dilated upon the proper application of subsection (2) of Section 32 of the Customs Act in such cases by observing that “even if it is taken under subsection (2) of Section 32, which relates to mis-declaration along with the collusion of Customs Authorities then there is nothing on the record that whether the department had initiated any disciplinary proceedings against the alleged customs officers simultaneously along with the appellant. In absence of proceedings against the delinquent officers, who were in collusion with appellant in evading the Government Revenue, the proceedings conducted only against appellant cannot be said to be a penal action under Section 32(2) of the Act, but would be considered as discriminatory action taken only against the appellant/importer.” For reaching at conclusion, we have also consulted the judgment reported at 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”. From close examination of the import documents it transpired that the Appropriate Officer as defined in Section 2(a) of the Customs Act, 1969 passed Assessment/Clearance Order under Sections 80 and 83 and Rules 438 and 442 ibid., on the basis of declaration, examination report scanned documents and which least contains any mis-declaration in material particular, confirming that, there was no “collusion” and “connivance” of the Customs Officers. Even otherwise if it is considered for a while that there was any, why the customs officials were not issued the show cause notice as it was upon them to check that whether Federal Excise Duty has been fed in the software correctly by the Agility/PRAL and it has been calculated correctly within the meaning of Section 12 of the Federal Excise Act, 2005, as mandated upon under Section 80 and Rule 438 of the Customs Act, 1969 and Customs Rules, 2001. In case that was not done consequences emerging from the said effects in addition to the alleged revenue loss has to be borne by them only and not by the appellant as this is due to their conduct, reference is made to the reported judgments 2011 PTD 2220 Collector of Customs, Preventive, Karachi v. Pakistan State Oil Karachi that where their Lordships 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.”

 

32. That it is advantageous to say in the light of the above deliberation that framing of contravention report by the respondent No. 2 and forwarding that to respondent No. 1 for issuance of show cause notice and passing order-in-original were the acts of assumption of wrong jurisdiction as contemplated in un-reported and reported judgments referred by the appellant while dilating upon the said issue as being direct authorities in 2002 PTD (Trib.) 889 Messrs Unitex Towel Factory v. Collector of Customs (Appeals) and others, wherein this Tribunal held that reopening of sales tax refund order passed/sanctioned by the competent authority after scrutinizing of the documents in regards to legality and propriety could not be reopened by any authority with the exception of Collector of Customs under Section 45A of the Sales Tax Act, 1990 as the same falls within the ambit of past and closed transaction. The Tribunal went on to observe that the show cause notice was ab-initio void while relying on the reported at PLD 1971 SC 197. The relevant extract is as under:–

“Where the Court is not properly constituted all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances ” it could never be too late to admit and give effect to the plea that the order was a nullity”, as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone v. Chief Kwame Tawia.”

In Raunaq Ali’s case [PLD 1973 SC 236], their lordships of the Supreme Court did observe in the following terms:”

It is now well-settled 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 the law recognizes a privilege to err”, then such action amounts to a “usurpation of power unwarranted by law” and 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, particularly where the appeal is to the latter’s discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful”.

 

33. Finally, we feel appropriate to deliberate on subsection (4) of Section 12 of Federal Excise Act, 2005, verbatim of which is reproduced here-in-below for easement:–

“Where any goods are chargeable to any duty on the basis of Retail Price, duty thereon shall be paid on the retail price fixed by the manufacturer, inclusive of all duty charges and taxes other than sales tax levied and collected under Section 3 of the Sales Tax Act, 1990, at which any particular brand or variety of such goods shall be sold to the general body of consumers or if more than one such price is so fixed for the same brand or variety the highest of such price and such retail price, shall unless otherwise directed by the Board, we legibly, prominently and indelibly indicated on each goods packets, containers, packages,

Provided that where so and as specified by the Board, any goods or class of goods liable to duty on local production as percentage of retail price, the proviso of this Section shall mutatis mutandi apply in case such goods are imported from abroad.

 

34. The essence and spirit of subsection (4) of Section 12 of Federal Excise Act, 2005 is that an importer is empowered to fix retail price of imported Cigarette and the retail price so fixed should be printed on the pack and Federal Excise Duty at the time of import has to be collected by the Clearance Collectorate on the rates notified by the Board on the printed retail price on the packet inclusive of all duties and charges. This means the amount of retail price + duty notified in First Schedule to the Customs Act, 1969 against the applicable H.S. Code + any other charges. The formula for collection of FED at import stage has been devised by the FBR and was communicated to the Agility/PRAL, which designed software and installed it in the module of PaCCS. As soon as an importer transmit Goods Declaration with the mention of retail price of Cigarette, the system calculate itself the payable custom duty on the value, thereafter Federal Excise Duty on the value + duty. Once the amount of Federal Excise Duty at import stage, the software itself calculate the amount of Sales Tax to be paid at import stage on the amount comprised of value of the goods + duty and thereafter the amount of Withholding Tax to be collected at import stage on the amount arrived after adding the value of the goods, Custom Duty and Sales Tax and these amounts separately transmitted to the importer through view message for payment, which deposit the same, consequent to which the system allocate number to the Goods Declaration. Same procedure is adopted by the system upon passing of Assessment Order by the competent authority under the provision of Section 80 and Rule 438 of the Customs Act, 1969 and Customs Rules, 2001. In calculating the notified Federal Excise Duty, Sales Tax and Income Tax importer (appellant) figures no where.

 

35. The subsection (4) of Section 12 of the Federal Excise Act, 2005, explicitly with clarity speaks about retail price fixed by the importer inclusive of customs duty and charges and taxes other than Sales Tax collected under Section 3 of the Sales Tax Act, 1990 as defined in subsection 2(27) that “retail price with reference to the Third Schedule, means the price fixed by the manufacturer inclusive of all duties, charges and taxes other than Sale Tax at which any particular brand or variety of any article should be sold to the general body of consumers, or if more than one such price is so fixed for the same brand or variety the highest of such price.” and this is due to the fact, the manufacturer/importer has to pay Sales Tax on the value of the imported goods as per definition given in Section 2(46)(d) of the Sales Tax Act, 1990 and which means “value determined under Section 25 of the Custom Act, 1969, including the amount of Customs – duties and Central Excise Duty levied here-on”. The importer has also to pay Sales Tax at the time of Supply to General Body to consumer, in addition to payment of Sales Tax at import stage on the value of supply defined in Section 2(46)(a) of the Sales Tax Act, 1990 and which is ” the consideration in money including all Federal and Provincial duties and taxes if any, which the supplier received from the recipient for that supply but excluding the amount of tax.” The said fact stood confirmed from the pack of the Cigarette available in the market, indicating only amount of retail price and sales tax separately.

 

36. We are at loss to digest that from where the respondents imported the words “including, Regulatory Duty, Value Addition Sales Tax, Special Excise Duty, Post Importation Charges and Profit”, in subsection (4) of Section 12 of the Federal Excise Act, 1990, as we failed to locate those, meaning thereby that these are non-existent. The said act of respondent is tantamount to inserting these words in subsection (4) of Section 12 ibid. because this suit their design of achieving the objective of framing contravention reports for issuance of show cause notices and ultimately passing of orders-in-original, completely in derogation of expression of subsection (4) of Section 12 ibid., and the law laid down in umpteenth reported judgments by the Superior Judicial Fora that “tax statute are to be interpreted in the light of what is clearly expressed. Nothing can be added or subtracted or implied, 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” as held reported judgments 1989 CLC 146 and 2011 PTD (Trib.) 79. One has to also keep in mind if anomaly or ambiguity exist in any statute or notification and that leads to two or more interpretation, even then it has to be resolved in favour of the subject as held in the reported judgment 1993 SCMR 274, 2005 SCMR 728, 2007 PTD 1656 and 2008 PTD 1227 that “if there are two or more interpretation of a provision pertaining to levy of tax on account of anomaly/ambiguity the one favourable to the tax payer has to be adopted by the court”. It is also our considered opinion which have been arrived after going through umpteenth reported judgment of Superior Judicial Fora that “tax payer should not be made to suffer on account of bad drafting of the statute.” Reference is placed to the reported judgments at 2004 PTD 901 Hashwani Hotel Ltd., v. FOP, wherein, their lordships of High Court held that:–

“While interpreting the taxing statute the Court must look to the word of statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed. It cannot import provision in the statute as to support assumed deficiency.”

“While finding out intention of the legislature language of the law is not be seen and if the intention is cleared from the language used nothing else is to be done.”

“if the legislature has not sufficiently expressed itself Court has no duty to act for it, for court is concerned with what it lays down and not what it has only in mind, but once it has been articulated enough Court does not more than give effect to the intention that it has succeeded in expressing. That intention may be expressed in faulty language, in very faulty language, in-extremely faulty language, this is of no consequence as long as there is no doubt as to the intention. A draft’s man mistake as long as it relates to form in which the legislative intend is expressed and not to the substance of it, is of no effect. Of course ones an element of doubt as to the intention of the legislature enter the field considerations otherwise irrelevant may all become relevant.

 

37. In view of the above narration, the whole proceeding are infested with inherent legal infirmities and substantive illegalities tantamount to patent violation of mandatory statutory provision and that too, in utter disregard of the provision of the Acts/Ordinance and Principle of Law settled by the Superior Judicial Fora. The chronicle events right from assuming of power for audit by the respondent No. 2, issuance of show cause notice and passing of order-in-original by respondent No. (sic) are without power/jurisdiction hence ab-initio void and as such coram non judice by virtue of the fact that all of them ignored the provision of Acts/Ordinance and the ratio settled by the Supreme Court of Pakistan in reported judgment 2010 SCMR 1425 Section officer Government of Punjab Finance Department and others v. Ghulam Shabbir that the Principle of Administration of Justice and Interpretation of Statute is that “the person who is performing the role of a judge, no matter even in quasi-judicial proceeding must wear all laws of the country on the sleeves of his robes and failure to do so by any reason is not an excuse” and reported judgments 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505 and 2006 SCMR (sic) that “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”.

 

38. It is flabbergasted to note from the record of the case that the respondents also ignored the vital fact that assuming of jurisdiction is of great importance and power has to be exercised within the allotted sphere, acting contrary to that is incurable rather fatal for the health of the case and this has been countless time held by the Hon’ble Supreme Court of Pakistan that in case of assuming wrong jurisdiction, that the super structure built thereon ought to crumble down as held in reported judgments PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. Beside it is advantageous to us to refer to 2001 SCMR 1822 Ali Muhammad v. Chief Settlement Commissioner, wherein the Hon’ble Chief Justice of Pakistan Mr. Iftikhar Muhammad Choudhry presiding a bench in the capacity of Judge of Supreme Court held that:–

“whenever order is passed by an officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercise in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice.”

 

39. Their lordships also held in reported judgment PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP and others that “determination of jurisdiction by Court seized with the matters is one of the important element in administration of justice as if justice has been provided basing upon corum non judice order then same would have no legal sanction behind.” And in PLD 2005 Supreme Court 842 Khyber Tractor (Pvt.) Ltd. v. Pakistan Through Ministry of Finance, Revenue and Economic Affairs that “question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum having no jurisdiction, even if it is found to be correct on merit is not sustainable. Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi judicial functionary to exercise its power/authority and no sooner the question of jurisdiction is determined in negative the whole edifice built on such defective proceeding, is bound to crumble down.”

 

40. Being custodian of law, it is the duty of the Court to follow the legal obligations observed by the Courts as well as made by the legislature. Observations of the higher Courts and the intention of the legislature and interpretation which leads to manifest the absurdity should, if possible be avoided. The Courts are under statutory obligations to supply the omission with a view to prevent the defeating of a vary object, rules and can fill in the gaps in a piece of legislation, where the plain instructions would lead to absurd results. It is well entrenched legal proposition that an interpretation which is more in consonance with the avowed policy that decipherable from its title and preambles, it is to be preferred to an interpretation with view that, to avoid the pursuance from the abridge, abrogate or infringe those rights which have occurred in favour of the parties by any means.

 

41. By doing so and getting the strength what have been discussed here in above, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio decidendi observed by the Superior Courts, we hereby vacate the impugned show cause notices, and set aside the order passed thereon, during the hierarchy of the customs being illegal, void and ab-initio, appeals are accordingly allowed with no order as to cost.

 

42. Judgment passed and announced accordingly.

 

RR/6/Tax(Trib.) Appeals accepted.

 

Print Friendly, PDF & Email