2021 PLP (Trib (PTD)

JEHANZAIB WAHLAH (MEMBER JUDICIAL-III).

Through this order, I intend to dispose off 02 Appeals bearing Nos.K-1503 and 1504/2018 directed against the Orders-in-Original Nos.1221866 and 1221873 dated 17.04.2018 passed by Collector of Customs, Adjudication-II, Karachi (Respondent No. 3).

2. Since, these 02 appeals are based on identical fact and grounds, it is needless to reproduce facts of each case separately and so the grounds, facts of Appeal No. K-1503/2018 are taken into consideration for deliberation/decision which are the appellant is a commercial importer cum clearing agent during the course of his business activities appellant imported a consignment of 120054 meters weighing to 4166 kgs of Viscose Bleach Fabric from Surat, Gujrat, India @ US$. 0.16/kg. Upon receipt of shipping documents, transmitted Goods Declaration (GD) with the MCC of Appraisement-East, under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 (Rules) and as per pre-requisite deposited upfront duty and taxes in NBP on the basis of declaration. Consequent to which GD was numbered as KAPE-HC-83009 dated 08.11.2017, which was selected for examination in terms of Section 198 of the Act and Rule 435 of Rules, wherein declaration was confirmed and report so prepared was uploaded in the reservoir of the GD and so the test report by the Laboratory confirming constituent material/description of the goods. Immediately, upon receipt of the reports in the reservoir of the GD, the Deputy Collector (R&D), MCC of Appraisement-East (respondent No.1) placed an hold on the GD/detained the consignment on the premise that the appellant has mis-declared the value as evident from the comparison or shipping bill presented by the exporter with the Indian Customs at the time of exporting the instant consignment to the appellant. The consignment of the appellant was subsequently seized by the subordinates of respondent No.1 under the provision of 168(1) of the Act. Sensing the gravity of the situation and so the illegal commission of the act of respondent No. 1 and his subordinates, appellant filed Constitution Petition with the High Court of Sindh, which passed restraining order dated 12.12.2017. Despite availability of restraining order of no corrosive action of the High Court, the respondent No.1 subordinate lodged FIR on the same date with the allegation that on the basis of acquired shipping bill from the local shipping agent, it has been transpired that FOB value declared by the appellant have difference of US$ 105,183,00. i.e. 531%, this resulted in loss of revenue of Rs.4,044.422.00. Hence, contravened the provisions of Sections 32(1)(2), 32A (1)(2), 79 of the Act and Sections 3, 6, 7 and 34 of the Sales Tax Act, 1990 (STA) and Section 148 of Income Tax Ordinance, 2001 (ITO). Subsequently, the respondent No.1 framed contravention report and transmitted that to Additional Collector-Law, who approved the same and routed it to respondent No. 3, who issued show-cause notice dated 24.04.2018 containing the same facts and contravening provision of the Act, STA and ITO, while ignoring restraining order of the Hon'ble High Court of Sindh. Final order in the petition was issued on 23.10.2018, consequent to which reply to show cause notice was submitted vide dated 06.11.2018 followed by corrigendum dated 08.11.2018. The respondent No. 3 without considering the reply and the provision of the Act/Ordinance passed order dated 16.11.2018 through which held the charges as levelled in the show-cause notice as established and ordered confiscation of the goods subject to redemption of those upon payment of fine of Rs.4,709,147.00, imposed penalty of Rs. 500,000.00 and Rs.50,000.00 simultaneously on the appellant being an importer and clearing agent, in addition to short paid amount of duty and taxes of Rs.4.044,422.00. It is beneficial to reproduce paras 8 to 12 of the order. "8- I have gone through the case record as well as written and verbal arguments put forth by the respondent and departments. It has been alleged by the case making agency that the respondent have imported a consignment and declared to be Viscose Fabric from Indian vide Good Declaration No. KAPE-HC-83009-08.11.2017, through in the name of own clearing agency. As per contravention report indicates that the case making agency received credible information to the effect that the aforesaid consignment has been grossly mis-declared with reference to description of the goods as well as value thereto. The actual description of the goods reported as "Crinkle Georgette Shiffon Fabric" which has been confirmed by the lab test, the detail of same given as above para. After difference found in the description, the value was verified through concerned shipping company M/s. Modern Shipping Agency (Pvt.) Ltd., Karachi, the local agent of M/s. M.M Co., Container Line provided the Shipping Bills along with invoice and other relevant documents of import. The value of the goods was found as US$. 124,964/- instead of declared value US$ 19781/-. Resulting the difference come to US$. 116495/- US$ 105183/- (excess value 531%). The respondent contended that the item is of Valuation Ruling. The documents relied for the value are not legal and obtained value is of Icegate Website which is not acceptable. The custom authorities cannot recover sales tax and income tax. Detail reply is reproduced above. The departmental representative stated that all the particulars of this consignments match with the obtained invoice whereas invoice attached with the GD does not bear part-wise price which proves the mala fide on importer parts. 8.(sic) On basis of the documents and arguments from the both side following finding can be deduced : A. CHANGE IN DESCRIPTION OF GOODS. The description declared was not correct as found by the lab report and physical attributes. This fact is not challenged by the respondent. B. VALUE DIFFERENCE on founding difference in description of the imported fabric the Collectorate probe the value on credible information and obtained the export documents and invoice from the shipping agent of the respondent. There is a huge difference between the declared value and value found in documents provided by the shipping agent. The respondent has objected on the documents obtained through shipping agent but not objected on the authenticity of the documents. The respondent has also raised the objection on value of Icegate Web Site but the Collectorate has used the documents given by the shipper and not the Icegate Web Site. The objection raised on availability on the Valuation Ruling is also not sustainable as that Valuation Ruling, was issued after the filing of the GD and moreover, valuation ruling cannot be applied where evidence of higher transaction is available. C. POWER OF CUSTOMS OFFICERS TO RECOVER SALES TAX AND INCOME TAX. The arguments of the respondent that customs authorities are not empowered to recover sales tax and income tax is incorrect. The show-cause notice has been issued by invoking the provision of / Section 32 of the Customs Act, 1969 which empowers the custom authorities to recover short levy amount of duty and taxes 32A. Fiscal Fraud; (I) If any person, in connection with any matter related to customs - (a) causes to submit documents including those filed electronically, which are concocted, altered, mutilated, false, forged, tampered or counterfeit to a functionary of customs ; (b) declares in the 32 [Goods Declaration] electronically filed documents declaration, the name and address of any exporter or importer which is physically non-existent at the given address; (c) declares in the 82 [Goods Declaration] electronically filed customs declaration, and untrue information regarding 97 [Payment of duties and taxes through self assessment] description, quantity, quality, origin and value of goods; (d) alters, mutilate or suppresses any finding of the custom functionaries on any document or in the computerized record or (c) attempts, abates or connives in any action mention in clauses (a), (b), (c) and (d) above, he shall be guilty of an offence under this section 32(2) where, by reason of any such document or statement as aforesaid or by reason of some collusion , any duty, taxes or surcharges has not been levied or has been short levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within [5] years of the relevant date, requiring him the show-cause why he should not pay the amount specified in the notice.

9. Further more, under the provision of the section 179 of the Customs Act, 1969 the customs officers are empowered to adjudicate the cases relating to recovery of the duty and taxes for case of reference the relevant provision is produced hereunder; "

179. Power of Adjudication:- Subject to subsection (2), in cases involving confiscation of the goods or recovery of duty and other taxes not levied, short levied or erroneously refunded, imposition of penalty or and other contravention under this Act or the Rules made there-under, the jurisdiction and powers of the officers of the customs in terms of amount duties and other taxes involved excluding the conveyance shall be as follows, namely "

10. In addition, the custom officer has also been empowered by the legislature to recover duty and taxes under section 202 of the Customs Act, 1969. For case of reference the relevant provisions is reproduced here-under; "

202. Recovery of Government dues; (1) when, under this Act or under any other law for the time being enforce, which provides for any tax, duty or other levy being collected in the same manner as customs, duties are collected , a penalty is adjudged against , or in notice or demand is served upon, any person calling for the payment of any amount unpaid which may be payable by way of penalty or by way of duty, tax or other levy or under any bond . 10 [Guarantee] or other instruments executed under this Act or such other law or other Rules made there-under, the Appropriate officer "

11. In the light of afore stated provisions of law, the officers of customs are empowered to collect, adjudicate and recover customs duties and taxes not paid or short paid at import stage the arguments of the respondent the custom authority are not empowered to recover income lax are also not tenable. As section 161(2) read with Section 80 of the Income Tax Ordinance, 2001 empowers the customs authorities to recover short levied Income Tax. For reference sections 161(2) and 80 of the Income Tax Ordinance, 2001, are produced here-under section

161. Failure to pay tax collected or deducted; (1) where as person (2) a person personally liable for an amount of tax under subsection (1) as a result of failing to collect or deduct the tax shall be entitled to recover the tax from the person whom the tax should have been collected or deducted

80. Person; (1) the following shall be treated as persons for the purposes of this Ordinance, namely; (a) an individual; (b) a company or association of person incorporated, formed, organized or established , in Pakistan or elsewhere (c) the Federal Government , a Foreign Government, a Political Sub-Division of a Foreign Government or Public International Organization.

12. Further, Federal Board of Revenue (FBR) vide letter C.No. 3(32)TAR 1/90 dated 06.08.2012 has clarified that customs are empowered to recovers Sales Tax, Federal Excise Duty for ease of reference, same is reproduced hereunder; " Subject ; LEGAL OPINION - ADJUDICATION OF CASES RELATING TO LEVY AND COLLECTION OF FEDERAL EXCISE DUTY, SALES TAX AND WITHHOLDING TAX ON IMPORTED GOODS. I am directed to refer to the subject cited above and to enclose herewith a copy of the letter No. F.242/2012. Law-I, dated 11.07.2012 issued by the Ministry of Law Justice , wherein it has been clarified that the officers of customs are competent to take cognizance of any short paid amount of Federal Excise Duty at import stage all adjudged such cases in view of the provision of Section 3(2) of Federal Excise, 2005, namely "duty in respect of goods imported into Pakistan shall be levied and collected the same manner and the same time as if it were a duty of customs payable under of the Customs Act, 1969 (IV of 1969) and the provisions of the said Act included 31A therefore, shall apply "

2. Since identical provisions also provisions also exist in the Sales Tax and Income Tax Laws, the Officers of Customs are also competent to take cognizance of any short paid amount of sales tax and withholding tax pertaining to import stage. Accordingly, Board's earlier letter on the subject matter bearing C.No. 6(8) S/IR-Ops/2012-8259-R dated 16.01.2012 and C.No. 6(8)S/IR-/Ops/2012/8958 dated 18.01.2012 issued by SA to Chairman FBR and Secretary (IR Operations) FBR are no longer of any effect being contrary to the legal provision of law, as clarified by the law and justice Division.

3. The relevant officers of customs may, therefore continue the adjudication proceedings already initiated and take cognizance of all cases of FED, Sales Tax and Withholding Tax pertaining to import stage in future as well.

4. This issues with the approval of Chairman , FBR sd/- Raza Secretary (Tariff-I) 9 (sic) Therefore, it is clear mis-declaration of value and the same hits or para 1(d) of SRO 499(I)/2009 dated 13th June, 2009. It is also pertinent to mention here that the WeBOC System is based on self assessment in which importers first declares description, classification, quantity or weight/origin/value SRO and calculated/assesses duty and taxes and then Customs counter checks the declaration, hence, the onus of correct declaration and assessment is on the importer. However, in clear violation of the trust reposed in the importer. The respondent deliberately misdeclared the impugned goods and avoid in order to payment of leviable duty and taxes so as to deprive government exchequer of the due revenue. 10(sic) In the light of afore discussed facts and findings I am convinced that the charges of mis-declaration in the show-cause notice stands established. Accordingly, the offending goods are confiscated under clauses (1) (14) and 14(A) of Section 156(1) of the Customs Act, 1969 for violation of provision of Sections 32(1), 32(2) and 79(1) ibid. However, an option is given to the importer to redeems goods under section 181 of the Customs Act, 1969 on payment of a fine equal to the 35% of offending goods to the tune of Rs. 4709147/- (35% of ascertained value of impugned goods Rs. 13454706/-) subject to the condition that the same are otherwise importable as per import Policy Order in vogue as prescribed under SRO 499(I)/2009 dated 13th June 2009. In addition to leviable duty and taxes thereon. A penalty of Rs. 500,000/- (Rs. Five hundred thousand only) is also imposed under clauses (14) and (14A) of Section 156 (1) of the Customs Act, 1969 on the importer. 11(sic) As far as the role of the clearing agent in the subject case is concerned , it is observed that under the Customs Act, 1969 , he acts on behalf of the principal for all the purposes of the Act and cannot be absolved of all responsibility other than merely scanning the documents delivered by the principal/importer. He is required to make a true statement/presentation to customs after analyzing all aspects of the Goods Declaration and the documents delivered to him by his principal. In case the declaration is proved, the clearing agent has to be penalized along with the principal/importer. A penalty of Rs.50,000/- (Rupees Fifty thousand only) is also imposed on M/s. SSJ Brothers (KCUS-1772) Karachi in terms of clause 14 of Section 156(1) of the Customs Act, 1969 for violation of Section 32 of the Customs Act, 1969. 12(sic) The case is disposed off accordingly. The assessing officer are directed to assess the GD as per above direction and check all other legal aspects/formalities before release of the said consignment.

3. The appellant filed the instant appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the case strictly in accordance with those. No cross objection under Section 194A(4) of the Act has been filed within the stipulated period of 39 days by the respondent No.1, resultant, lost his right in defending the appeal by not submitting counter affidavit, which is tantamount to admission and deposition made by and on behalf of the appellant in the memo. of appeal and affidavit are therefore, deems to be true and correct and no controversy is left behind in regards to the fact of the case. Non submission of counter affidavit whether by will or default forfeit the respondent No.1 right to deny assertion made in the affidavit. This proposition of law stood validated from the following judgments of the Superior Judicial Fora reported as (1974) 94 ITR --I, PLJ 1979 (sic) 71 and 72, 1986 CLC 745 Kar. (1984) 146 ITR 140, 1986 PTD (Trib.) 119, 1986 CLC 1119, 1986 CLC 1408 Kar, 1991 MLD 1243, PLD 1992 SC 317, 1993 SCMR 662, PLD 1996 Kar. 68 and PLJ 1997 Quetta 66, 2003 PTD 2118. However, on the date of hearing the representatives of respondent No.1 made averment that the appellant grossly mis-declared the value as evident from analytical comparison of the invoice and shipping bill submitted by the exporter of the instant imported goods with the Indian Customs, the said value is to be construed practically and legally as the declaration made by the appellant under Section 79(1) and Rule 433 of the Act/Rules in the GD, which is found to be mis-declared for depriving the exchequer from the actual leviable duty and taxes as against levied with the application of Valuation Ruling No. 776/2015 dated 04.12.2015 as para 6 of it directs the assessing officer of the Clearance Collectorate that where transaction value are higher than the Custom Values determined in this ruling, the Assessing Officer shall apply those value in terms of subsection (1) of Section 25 of the Act. With this supported the order passed by respondent No. 3 correct in fact and law and even the invoking of the provision of Sales Tax and Income Tax for which detail deliberation is available in the order and prayed for dismissal of the appeal being of no substance.

4. Rival panics heard and case record perused and so the relied upon judgments and framed following issues for decision: (i) Whether respondent No. 1 and his subordinates are empowered to detain the imported goods under the provision of Section 186 of the Act? (ii) Whether mandatory seizure notice tinder section 168(1) of the Act was served on the appellant and as to whether show-cause notice dated 17.04.2018 issued by respondent No. 3 is within time as expressed in section 168(1) of the Act? (iii) Whether Sections 3, 6, 7, 33 and 34 of STA and Section 148 of the ITO are relevant sections and could be invoked for the contravention of the charging/applicable sections of the STA/ITO and as to whether those were correctly invoked by the respondent No. 3 in the show-cause notice? (iv) Whether provision of Sections 80 and 161 of the ITO were invoked by the respondent No. 3 in the show-cause notice and as to whether these have any nexus with the case of the appellant and as to whether respondent No. 3 can travel beyond the scope of show-cause notice? (v) Whether respondent No. 3 has been appointed as officer of Inland Revenue under Section 30 of the STA or any section of ITO and as to whether with the insertion of word "taxes" automatically gain jurisdiction in nullity to section 30 of STA and respective applicable section of ITO and so the powers under the expression of Section 11 of the STA and 162(1) of ITO ? (vi) Whether Ministry of law and Justice and FBR arc empowered to exercise the powers of legislature for amending the existing provisions of the STA and ITO or insertion of new sections in STA/ITO and as to whether they have mandate to interpret the existing provisions of STA/ITO? (vii) Whether any contravention of Section 79(1) of the Act has been committed by the appellant? (viii) Whether shipping bill of the exporting country is a document defined in Section 2(kka) of the Act for submitting/transmitting declaration under the provision of Section 79(1) and Rule 433 of the Act/Rules and as whether that can be construed as a declaration made by importer (appellant) through any definition/imagination and as to whether that can overrule the value determined by the Director, Directorate General of Valuation under the provision of Section 25A of the Act? (ix) Whether charges under the provision of Sections 32 and 32A of the Act can be invoked on the strength of the value declared by exporter in the shipping bill for the purpose of assessment of the Custom Officials of the exporting country could be treated as direct evidence as enunciated in paras 78, 101 of CGO 12/2002 dated 15.06.2002 and clause (d) of SRO 499(I)/2009 dated 13.06.2009? (x) Whether order passed by respondent No. 4 was within time as per the enunciation of Section 179A (3) of the Act? (xi) Whether appellant in the capacity of clearing agent committed any mis-declaration in material particular while transmitting GD under the provision of Section 79(1) and Rule 433 of the Act and as to whether he committed willfully, negligently or default causing loss to the exchequer as per the contemplation of Section 209(3) of the Act?

5. That as regard to issue No. (i). The power/jurisdiction of respondent No. 1 and his subordinates of putting an hold on the GD/ detention on the consignment under the provision of Section 186 needs to be determined, in the light of its expression verbatim or which is given here-in-under for casement: 186: Detention of Goods pending payment of fine or penalty;- (1) When any goods or fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or pending any inquiry or investigation, in respect of any goods such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed. (2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any goods belonging to the same owner pending of such fine or penalty. Upon conscientious analysis of Section 186, it is observed that the said section comes into play during the course of imports, meaning thereby, if any case has been adjudicated by the competent authority against an importer and through which he held the charges established as levelled in the show-cause notice and imposed fine and penalty, and the importer has not paid that or any inquiry or investigation in respect of any goods is under way and imposition of penalty is under consideration. The appropriate officer is empowered to detain the forthcoming goods of the same owner/importer till the time fine and penalty are paid. The case or appellant is that against him no order is infield, through which fine/penalty has been adjudged against him and he has not paid that or has not assailed the order before the forum defined in the Act, nor any inquiry or investigation in respect of any of his imported consignment sans the instant is under way for decision for imposition of penalty. Resultant, his lawful imported goods cannot be detained under any pretext by any officer of customs, respondent No.1 is not exception as held by the Hon'ble High Court of Sindh in its judgments reported at 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 3 others that "authorities could detained such goods in respect of which inquiry or investigation was pending and not the goods which had been or were been imported by a person. The subsequent imported goods belonging to a same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remained un-paid. By no stretch of imagination all subsequent import can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In our opinion no such action is permitted under this provision. The respondent are only authorized to take action for issuance of detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against the person. The procedure and mechanism provided Section 202 of the Customs Act, 1969 is entirely independent of any action taken in terms of Section 186 of the Act. It is not the case of respondent that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's or even the goods covered by the instant petition and thereafter detention notices have been issued. With this the Hon'ble High Court of Sindh declared the detention of the consignment without lawful authority by holding that provision of Section 186 of the Customs Act, 1969 did not empowers the authority to do so." and 2015 PTD 560 Messrs O.S. Corporation v. FOP and others, "where no fine or penalty has been imposed or even under consideration the provision of Section 186 are not relevant

the authorities acting on a hunch have detained goods as the exit gate, even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totally contrary to the provision of the Act, 1969". Hence, in categorical terms I hold that placing an hold on GD/detention of goods by the respondent No. 1 is not and only without lawful authority even jurisdiction being in derogation Section 186 of the Act. The issue No. (i) is answered in negative.

6. That as regard to issue No. (ii). The respondent No. 1 and his subordinate despite detaining and subsequently seizing the goods under Section 168(1) of the Act, failed to serve notices as contemplated in the aforesaid Section along with notice under Section 171 on the appellant, those were merely prepared for the record but were not served as per mandated requirement of law. The goods of the appellant were seized in isolation in the absence of any notice in terms of Section 168(1). Non serving of notice under Section 168(1), renders the notice and subsequent proceeding infested from legal infirmity and as such of no legal effect as held by Superior Judicial Fora in umpteenth reported judgment e.g. PTCL 1994 CL 22, 1983 PCr.LJ 620, 1983 PCr.LJ 623, 1983 CLC 786, PTCL 1983 CL 47, 1987 PCr.LJ 1413, 1987 PCr.LJ 1091, 2004 PCr.LJ 1958. Additionally, in the instant case the goods were seized on 11-12-2017, resultant, show-cause notice under section 180 of the Act by the authority vested with the powers under section 179 ibid has to be issued within 2 months of the seizure of the goods subject to extension for further two months based on exceptional circumstances by the Collector of Customs after giving notice to the respective person and recording of those exceptional circumstances as held by the Hon'ble Supreme Court of Pakistan in reported judgment 1999 SCMR 1881 Khalid Mahmood v. Collector of Customs, Custom House, Lahore. Failing to which the owner or the person from whose possession they were seized earn a right for the return of the goods and the order/act of seizure become illegal and invalid. In this case initial period of 02 months stand lapsed on 19.02.2018, no further extension whatsoever was granted by the Collector, evident from the show-cause notice 24.04.2018, which is silent in this regard and confirm that it was issued after expiry of entire period of 04 months by the respondent No.3. Rendering it barred by time by 104 days and as such without powers/jurisdiction, hence void therefore, and ab-initio as held by Superior Court in umpteenth judgment e.g. 1998 MLD 650, 2005 PTD 23, 2003 PTD 2821 and 2007 PTD 2092. Any super structure built thereupon, no matter how strong it may be has to crumble down. Hence, the order-in-original passed by respondent No. 3 is also without lawful authority/jurisdiction. Therefore, ab-initio, null and void and as such coram non judice. Therefore issue No. (ii) answer in negative.

7. That as regard to issue No. (iii) . That respondent No. 3 invoked certain provision of STA and ITO without going through their expression, and in negation of 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 expose". Sections 3, 6, 7, 33 and 34 STA and 148 of the ITO, Section 3 is indeed a charging Section but under the said Section the appropriate authority is officer of Inland Revenue whereas Section 6 defines mode and manners of collection of Sales Tax at import stage by the customs authority and on supply by the manufacturer/seller, resultant it is not a charging instead a machinery. Whereas, Section 7 of the STA speaks about determination of tax liability at the time of filing sales tax return under section 26 of the STA, this is as well a machinery section and Section 33 contain penal clauses synonymous to Section 156(1) of the Act and Section 34 speaks about default surcharge to be paid upon establishing the charges under the charging section. Likewise, Section 148 prescribes the procedure for collection of Income Tax at import stage by the authorities referred therein. Meaning thereby that the said section are independent under which no charge can be invoked. To the contrary, I am flabbergasted to note that respondent No. 3 invoked these despite irrelevant and so the section containing penal clauses/default surcharge. I have no words for this sort of ignorance, putting a big question mark on the competency of the respondent No.3. No show-cause notice can be issued under the aforesaid sections, which are independent and have no nexus with each other. In the absence of invoking of relevant charging and applicable sections in the light of act and commission of the importer manufacture/supplier of the STA and ITO. Renders it void and ab initio and of no legal effect as held by the superior judicial fora in their judgments reported at Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector (2003 PTD 1593), Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR (sic) and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs. The issue No. (iii) is answered in negative.

8. That as regard to issue No. (iv), upon perusal of show-cause notice I am unable to find mentioning /incorporating of Sections 80 and 161 of the ITO. Resultant, reply submitted by the appellant advocate is also silent in regard to these. I failed to grasp the rationale of respondent No. 3 of incorporating these in the order and then offering his comment/pinion, which least enhanced the gravity of the charges levelled in the show-cause notice, nor cast any influence on the veracity of the order passed by him. There exist no dispute in regards to definition of person given in section 80, wherein individual, all sort of companies are included inclusive of "the Federal Government a Foreign Government, A Political Sub-Division of Foreign Government or Public International Organization" are included. Meaning thereby that the Federal Government or its allied department like customs also falls within the ambit of the word 'Person' and liable to an action under ITO as like an ordinary person/company for its contravention, I am flabbergasted to observe that respondent No.3 for justifying of his act of taking cognizance in the matter of Income Tax made a reference to subsection (2) of Section 161 of the ITO, which read as "A person personally liable for any amount of tax under subsection (1) as a result of failing to collect or deduct the tax shall be entitled to recover the tax from the person from whom the tax should had been collected or deducted." The said subsection is not to be read in isolation and instead in conjunction with section 161(1) of the ITO, heading of which read as "Failure to pay tax collected or deducted". Meaning thereby, that this is for the person who collect or deduct the tax (Income Tax). The power to collect or deduct income tax at import stage from the importer (person as defined in Section 80) rest upon the official of customs not on the appellant as he neither collect nor deduct rather pays leviable tax. In case of non collection or deduction, consequences has to be borne by the collecting/deducting authority referred/incorporated in Section 148(9) of the ITO. Hence, collecting/deducting authority in the instant case is customs (Clearance Collectorate) is personally liable to pay the amount of the tax to the Commissioner of Income Tax, who is empowered to issue show-cause notice and pass order to that effect as expressed in section 161(1) ibid., along with additional tax @ 18% per annum from the date he failed to collect or deduct to the date the tax was paid as per the enunciation of section 161(1B). Respondent No. 3 in forming the inscribed opinion in the order intentionally and willfully ignored established principals of interpretation of statute, commonly known as principal of 'Ejusdem' Geneies' that the word and phrases occurring in provision of law are not to be taken in an isolated or detached manner, dissociated from the context, but these are to be read together and construed in the light of overall context of the provision of law. Respondent No. 3 intentionally also ignored the relevant Section 162(1) of the ITO which contains mechanism for recovery of income tax from the person from whom tax was not collected or deducted and the authority empowered to proceed against that person rest with Commissioner of Income Tax, respondent No. 3 figures no where. He in fact acted unlawfully without any jurisdiction/powers usurp the powers of the Commissioner of Income Tax, which is not, appreciated at all, one has to remain within his allotted sphere , which respondent No. 3 failed. Additionally, it has been noted that respondent No. 3 ventured outside the scope of show-cause notice, which is not permitted , one have to remain within the charter of show-cause notice failure to do so renders the order so passed palpably illegal. Since, no mention of Sections 80 and 161 of the ITO are available in the show-cause notice nor any commentary corresponding to these sections. Hence, no mandate was available with the respondent No. 3 to comment on the same for passing order against the appellant on the sections/grounds not mentioned in the show-cause notice. Therefore, I hold the order is also beyond the charter of show-cause notice and as such void and ab-initio as held by the Superior Judicial Fora in reported judgment, Collector Excise and Land Customs and others v. Rahim Din reported at 1987 SCMR 1840 and Adam v. Collector of Customs, Karachi PLD 1969 Supreme Court 446, Muhammad Sadqain v. Collector of Customs (Appraisement) 2006 PTD 2742 and Messrs Exide Pakistan Ltd. v. Deputy Collector of Customs (Adjudication-III), Karachi, 2004 PTD 1449, "wherein it has been held that "Order of adjudication, being ultimately based on a ground which was mentioned in the show-cause notice is palpably illegal on the face of it". The Issue No. (iv) is answered in negative.

9. That as regard to issue No. (v). It is also noticed with great concern that Respondent No. 3 in the show-cause notice have invoked certain Sections of STA and Section l48 of the ITO, for which it has been contended by the Consultant/ Advocate of the Appellant that Respondent No. 3 even has no mandate to issue show-cause notice in the matter of Sales Tax/income tax. Whereas, Respondents are of the view that incorporation of the word "tax" in Sections 32(2) and (3) and 179 of the Act is sufficient the assuming powers under the charging Sections of Section 11 of the STA and 162(1) of ITO. Upon perusal or Section 32(2) and (3) of the Act, I have observed that although the word "Tax" is available, this does not automatically empower Respondent No.3 to assume powers under the provision of Section 11(2) and (3) of the STA and 162(1) ITO unless Legislature appoint him as "Officer of Inland Revenue/Commissioner of Income Tax" who have powers under these Sections to take cognizance in the matter relating, Sales Tax and Income Tax. Similarly, the word 'Tax' inserted in Sections 179 and 32 of the Act is for only assuming of powers on the basis of involved duty and taxes by the appropriate adjudicating authority defined in section 179(1) and in Section 32 , for empowering the Officer of Customs to charge the tax payer under the said provision on the basis of amount of duty and taxes, punishable under the respective provision of Section 156(1) of the Act. Therefore, despite of insertion of the word taxes in both the Sections adjudicating authority including the Respondent No. 3 have to issue show-cause notice within the respective applicable provision of the Act only and not under any charging or Section 11 of the STA and Section 162(1) of the ITO which are otherwise non-existence in the show-cause notice and no charge against the Appellant has been levelled under any provision of the STA and in ITO, rather Sections 3, 6, 7, 33 and 34 of STA and 148 of the ITO have been inserted as penal clauses which are erroneous /irrelevant. Even otherwise, the Respondent No. 3 has also relied upon clauses (14) and (14A) of Section 156(1) of the Act, applicable in the case of mis-declaration falling within the ambit of Section 32 of the Act. These clauses cannot be invoked in the matter of Sales Tax and Income Tax falling under Sections 11 and 162(1) ibid. For further clarity of the issue, I have scrupulously gone through the provision of Section 30 of the STA and Section 228 of the ITO and observed that Respondent No. 3 has not been appointed as an Officer of Inland Revenue under these Sections. Resultant, he is not empowered to exercise the powers under Section 11 of the STA and Section 162(1) of the ITO, which empowers Officer of Inland Revenue/Commissioner of Income Tax to initiate adjudication proceeding for recovery of short collected/paid Sales Tax/ Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Hence, Respondent No. 3 is not empowered to lay hands on any matter falling under the ambit of Section 11 of the STA and Section 162 (1) of the ITO Assuming powers on the basis of mistaken belief and warrant of law is palpably illegal beside fatal to the health of the case, as these sections least empowers the Officers of Customs including Respondent No. 3 to initiate adjudication / recovery proceeding for the short collected/paid , Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. For proceeding with these type of recoveries a show-cause notice has to be issued under the Provision of, Section 11 of the STA and Section 162(1) of the ITO, by the authority expressed therein i.e. Officer of Inland Revenue/Commissioner of Income Tax under subsections (3) and (4) of section 11 of the STA and Section 162(1) of the ITO. In these sections neither Officer of Customs and Respondent No. 3 figures anywhere. He assumed the power not vested with him under the provision of Sections 11 and 162(1) of the STA and ITO. Therefore, I am of the considered opinion that the Customs Collectorates does Officers have powers to collect, Sales Tax and Income Tax as duty at import stage, conversantly, to the plea that Customs is empowered to recover the short paid amount of sales tax and income tax at the import stage under Section 202 of the Act is also based on mistaken belief, the Customs Collectorate could recover the amount of Sales Tax and Income Tax upon receipt of notice from the officer of Inland Revenue and Commissioner of Income Tax under Section 48 of the STA and Section 140 of the ITO for recovery of the adjudged amount of Sales Tax and Income Tax after due process of law. Hence, the Clearance Collcctorates does have the authority to collect Sales Tax and Income Tax at import stage in the capacity of collecting agent and can recover escaped/short payment paid Custom Duty and Regulatory Duty levied on the imported goods under Section 18 of the Act under Section 202 ibid., after due process of law, but have no powers to adjudicate the cases of short recovery of Sales Tax and Income Tax under sections 11 and 162(1) ibid. and this stood validated from reported/unreported judgments listed below: (i) 2011 PTD (Trib.) 110 Messrs AGP (Pvt.) Ltd. v. Additional Collector of Customs, Karachi. (ii) 2010 PTD (Trib.) 2086 Messrs Global Marking Services and another v. Model Customs Collectorate and another. (iii) SCRA No. 01/2010 Collector of Customs, Islamabad v. Global Marketing Services and another v. Model Customs Collectorate and another. (iv) 2004 PTD 801 Al-Haaj Industrial Corporation (Pvt.) Ltd., Peshawar v. Collector of Customs (Appraisement). (v) C.P. No.D-216/2013 Messrs Lucky Cement Ltd. v. Federation of Pakistan and others. (vi) 2014 PTD 1963 Shujabad Agro Industry (Pvt.) Ltd. v. Collector of Customs and 8 others (vii) 2015 PTD 702 Muhammad Measum and others v. FOP and 02 others. (viii) 2016 PTD (Trib.) 969 Asif Textile Trading v. Directorate General I&I-FBR. (ix) 2016 PTD (Trib.) 1008 Phillip Morris (Pakistan) Ltd. Karachi v. Additional Collector of Customs. (x) 2016 PTD (Trib.) 2125 Al-Fajer Associates v. Directorate General of Intelligence and Investigations-FBR. (xi) Appeal No. K-1635/2014 Pepsi Cola Export Corporation, Karachi v. Directorate General of Post Clearance Audit and 02 others. (xii) Appeal No.K-1029/2016 M/s. M.R. Sons, Karachi v. Directorate General of Intelligence and Investigations-FBR. (xiii) Appeal No. K-1030/2016 Messrs Muhammad Imran, Karachi v. Directorate General of Intelligence and investigations-FBR. (xiv) 2018 PTD (Trib.) 1318 M/s. Rightway Trading Company, Karachi v. Deputy Collector of Customs, MCC of Appraisement-West and 03 others (xv) 2016 PTD (Trib.) 2463 M/s. Zubair Wali Ahmed Zai Ltd. v. The Principal Appraiser Directorate of Transit Trade and others. (xvi) 2017 PTD (Trib.) 481 Singer Pakistan Ltd. v. Collector of Customs and 02 others. The opinion formed by me also have the validation of the judgments reported at 1994 CLC 1612, 1990 PTD 29, 2005 PTD 23, 2007 PTD 250 titled as Collector of Sales Tax and Federal Excise v. Messrs Qasim International Container Terminal Pakistan Ltd., wherein it has been held that, "There is a clear distinction between the charging provision of Statute and the machinery part thereof. It is axiomatic that mode of manner of recovery does not alter, the nature of tax nor a tax can be introduced or imported by implication." In 2008 PTD 1973 Xen Shahpur Division v. Collector of Sales Tax (Appeal), Collectorate of Customs, Federal Excise and Sales Tax , Faisalabad, for clarity of the Rule of Interpretation of Statute, golden principle was outlined in so many words reading as "That fiscal law is to be applied with full authority and its natural meaning one has to look merely at what is clearly said and there is no room for any intendment neither there is equity about a tax nor presumptions as to tax nothing is to be read in, nothing is to be implied one can only look merely at the language used. The Hon'ble Supreme Court of Pakistan in reported judgment

2006 SCMR 129 titled as DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others held that : "If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted

each and every words appearing in a Section is to be given effect and no other word is to be rendered as redundant or surplus when the legislature required the doing of thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred -- if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare tacitum" I, therefore hold in the light of the law laid down in the referred in above and cases reported at that the exercise of jurisdiction on this point by Respondent No. 3 is without lawful authority and jurisdiction. Hence, issuance of show-cause notice and passing of Order-in-Original are ab-initio void and as such coram non judice on this point also. The Issue No. (v) answered in negative.

10. That as regard to issue No. (vi). In the Constitution of Islamic Republic of Pakistan, no Article is available empowering Ministry of Law, Justice and FBR to exercise the powers of the legislatures under any circumstances/condition , even in those days when the parliament is not in session, instead President promulgate an Ordinance, under Article 89, ratification of which is warranted within 03 months from the National Assembly, railing to do so the Ordinance so issued stands lapsed and became a piece of paper. Under no circumstances either Ministry of Law or FBR can assume the power of the legislature for the purpose of amending any existing section or inserting a new section in the existing laws of the country. Any amendment/insertion in any existing Act/Ordinance, have to be made by the legislature through Money Bill presented under Article 73 and passing of the same through 2/3 majority and after assent of President, that became Finance Act and enforced for application/within the country from the date of its publication in the Official Gazette. Therefore, I hold firmly without any hesitation that neither Ministry of Law/Justice or FBR are empowered to fit themselves in the shoes of legislature for exercising their powers or presenting, debating and passing amendments in the existing law or inserting a new section therein/a fresh law. Similarly, the Constitution of Islamic Republic of Pakistan does not extent powers to any Ministry or their allied department, Ministry of Law/Justice and FBR are not exception, to interpret a provision of statute or expression of notification due to non-availability of such powers in the FBR Act and Constitution of Islamic Republic of Pakistan. An Act enacted by the Parliament could only be amended or rescinded by the parliament itself and by none else. It is sole prerogative of the Supreme/High Court as held in 1993 SCMR 1232 in the case of Central Insurance Co. v. Central Board of Revenue The Hon'ble Supreme Court of Pakistan held that " Board's view as to the interpretation of law do not have the force of law and the exception would be, where a fiscal statute is involved that should be implemented with strict impartiality" and in 2005 PTD 2462 Messrs Lever Brother Pakistan Ltd. v. Customs Sales Tax and Central Excise Appellate Tribunal, Karachi that "CBR has no place in the scheme of law, conferred with the jurisdiction to interpret any law, statutory or in exercise of any delegated authority i.e. subordinate legislation" whereas, in 2016 PTD (Trib.) 107 Qazi CNG Station, Gujrat and another v. Directorate General of Intelligence and Investigation-FBR, Karachi and 02 others, this Tribunal held that "statute can be amended by the Parliament and a notification through a notification not through any communication. In the absence of amendment of notification, clarification issued by the Board could only be termed as opinion and it would not at all amend the notification". Hence, placing reliance on the letter of the Ministry of Law, Justice bearing No. F.242/2012.Law-I dated 01.07.2012 and FBR's C.No.(32) Tar-1/90 dated 06.08.2012 and 6(8)S/IR.Ops/2012-8958 dated 18.01.2012 by the respondents is based on misconception, having no warrant or law and as such lend no support, as these are mere opinion and least amend the provisions of Sections 30 and 11 of the STA and Sections 228, 107 and 162(1) of the ITO. The issue No. (vi) answered in negative.

11. That as regard to issue No. (vii). Levelling allegation of contravention of Section 79(1) of the Act is misplaced due to the fact that aforesaid section is not a charging instead a machinery, outlining the procedure of transmitting GD with the Clearance Collectorate. No charge under the said Section could be invoked in the show-cause notice even in general not particularly, when the good were selected for examination under the provision of Section 198 and Rule 435 of the Act/Rules, on the strength of which the competent authority defined in Section 2(a) had to pass assessment order under the provision of Section 80 and Rule 438 in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002 for levy of duty and taxes either with the application of Valuation Ruling issued by the Director, Directorate General of Valuation under Section 25A for the imported goods or in case of non-availability of valuation ruling, the value of the identical/similar goods available in the data reservoir maintained by the PRAL under Rule 110 of the period given in Rule 107(a) of the Rules. Since, the goods of the appellant were not either auto cleared by the CSS module, instead selected for examination, verification of declaration which was found correct in all aspect with the exception of constituent material, which stands confirmed through test report and assessment order for levy of duty and taxes has to be passed with the application of Valuation Ruling No. 776/2015 dated 04.12.2015 His case stands ousted from provision of Section 79(1) and transferred to the provisions of Section 80 and Rule 438 of the Act/Rules, which lays inbuilt duty on the Officer of Customs to check all the aspects of the imported consignment as evident from their expressions reading as " 80(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 thirty, taxes and other charges thereon." and "438: 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". As adumbrated, appellant consignment cannot be construed by any stretch of imagination/interpretation has to be cleared on self assessment basis under Section 79(1) of the Act. Therefore, no contravention of the said section despite machinery has been made by the appellant, invoking the contravention of section 79(1) by the respondent No. 3 in the show-cause notice is erroneous/misplaced. The issue No. (vii) is answered in negative.

12. That as regard to Issue No. (viii). For reaching at just and appropriate decision, the definition of documents etc given in Section 2(kka) of the Act warranted for transmitting GD under the provision of Section 79(1) and Rule 433 of the Act/Rules, reproduced here-in-under for casement: "Documents means a goods declaration, application for claim of refund, duty drawback or repayment of duty , import or export general manifest passenger manifest, bill of lading, airway bill, commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to customs, whether or not signed or initiated or otherwise authenticated, and also includes:- i) any form of writing on material, data or information recorded, transmitted, or stored by means of a tape recorder, computer or any other device, and material subsequently derived from information so recorded, transmitted or stored; ii) a label, marking or other form of writing that identifies anything of which it forms part or to which it is attached by any means; iii) a book, map, plan, graph or drawing, and iv) a photograph, film , negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment of being reproduced; and)] From the perusal of the above definition, it has been gathered that for filing/transmitting GD under the provision of Section 79(1) and Rule 433 of the Act/Rules documents warranted are "commercial invoice, packing list, Bill of Lading or Air Way Bill or similar other forms or documents used for customs clearance or making declaration to the Customs, whether or not signed or initialed or otherwise authenticated, which are contract, proforma invoice, letter of credit, certificate of origin, health certificate, FTA or akin documents. Shipping bill filed by the shipper at the port of loading or the value given therein by the exporter figures no where in the definition of Section 2(kka) of the Act, terming the shipping bill of the exporting country and the value available therein as a document, (which is even not warranted for filing IGM under Section 45) as declaration under Section 79(1) and Rule 433 of the appellant /importer as the same is not available in the definition of documents given in Section 2(kka) of the Act. Hence, description, value or any other detail available in the shipping bill filed by the exporter at the port of shipment for the purpose of assessment by the Customs officials of that country cannot be construed as an "information" and or "document" under the Act and that too for the legal purpose, such as framing of contravention report and issuing/passing of show-cause notice and order-in-original on the basis of such information. It have to be appreciated even otherwise it cannot be deemed to be termed as i.e. a legal impossibility even in the country of export i.e. India, from where it originated, much less in Pakistan, where contents there from cannot even deems to constitute "information" and or "documents" under the Act and that too for the legal purpose. Even otherwise, it cannot be deemed to be construed as evidence being falling short of the statutory criteria stipulated under Qanun-e-Shahadat Order, 1984, in respect of foreign documents. Hence, reliance on shipping bill of the exporting country is therefore totally misconceived and suffer from legal infirmity and cannot be made a tool for penalizing importers inclusive of Appellant.

13. The respondents Nos.1 and 3 in fact acted without lawful authority/jurisdiction in framing contravention report and issuing /passing show-cause notice/order-in-original, evident from the fact that they kept aside the vital aspect that the goods imported by the appellant are subject to levy of duty and taxes with the application of value determined by Director, Directorate General of Valuation under the provision of Section 25A of the Act and thereafter issued Valuation Ruling No.776/2015 dated 04.12.2015 for the fabric falling under PCT Heading 5408.2100 etc. Interpreting inaptly pant 6 of the ruling, which is ultra vires as no such direction order can be issued by the Director, Directorate General of Valuation as determination of value under Section 25 is within the competence of the appropriate officer of the Clearance Collectorate and under Section 25A of the Act by the Director, Directorate General of Valuation. Application of both sections are at different situation and have a mechanism of its own and so the authorities empowers to exercise these are pole apart from each other. Any alien value obtained by the customs akin to the value declared by exporter in the shipping bill for the purpose of assessment by the custom official of that country (India) are of no significance/legal effect as that cannot overrule the transaction value defined in Section 25(1) of the Act. Nor that value prevails upon the value determined by the Director, Directorate General of Valuation of the goods/category of goods under the provision of Section 25A, by virtue of the fact that it starting with "Notwithstanding", which makes it non-obstante clause, a legislative tool implied to give an over-riding effect on the provision to a certain provision over a contrary provision that may be found in the same enactment or in a different enactment in order to avoid the operation and effect of all contrary provisions. The Hon'ble Supreme Court in Messrs E.F.U. General Insurance Company Limited v. The Federation of Pakistan PLD 1997 SC 700 = 1007 PTD 1693, explained the scope of such a clause by stating as under: "Thus a non-obstante clause is usually used in a provision to indicate that the provision should prevail despite anything so the contrary in the provision mention in the non obstante clause. In case there is any inconsistency between the none obstante clause and another provision, one of the object of such a clause is to indicate that it is a non obstant clause which would prevail over the other clause." Similarly, the Indian Supreme Court in Chandavarkar S.R. Rao v. Asha Lata S. Guram 1986 4 SCC 447 held as under; "A clause beginning with the expression 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract' is more often then not appended to a section in the beginning with a view to give the enacting part of the section in a case of conflict an over-riding effect over the provision of the Act or the contract mentioned in the non-ohstante clause. It is equivalent to saying that inspite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned in the enactment following it will have its full operation on that the provisions embraced in the non-obstante clause would not be an Impediment for an operation of the enactment".

14. Since, Section 25A is a non obstante Section, the prices determined through Valuation Ruling in exercise of the powers upon the Director, Directorate General of Valuation , under the provision of section 25A, prevails on the values declared /assessed by the importer/ appropriate officer or identical / similar goods value as defined in Section 25(5)(6) and Rules 117 and 118 of the Act/Rules and even any value which officials of Clearance Collectorate, including respondents Nos.1 and 3 considered to be actual transaction value within the meaning of Section 25(1) of the Act, alike the values available in the shipping bill filed by the exporter with the customs or the exporting country. It is therefore, axiomatic that the value determined under Section 25A cannot be over-ruled for assessing the goods for which that was issued, for levy of duty and taxes through a proper legal appealable assessment order passed by the authority defined in section 2(a) under section 80 and Rule 438 of the Act/Rules, in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002. Another aspect available for reconciling the provision of Section 25 with section 25A was also ignored. A conjoint reading of sections 25 and 25A shows that the former provision in fact compliments the provision section 25A as it has been made mandated for the Director, Directorate General of Valuation to determine the value of the goods and class of goods or category of the goods with the application of different subsections of Section 25 in sequential manner without any exception. Section 25A(2) make application of the valuation ruling on the goods or category of the goods mandatorily for levy of duty and taxes being custom value for the purpose of assessment, wherein Section 25A(4) provide legality to the Valuation Ruling for application as evident from it contents reading as " The custom value determined under subsection (1) or, as the case may be under subsection (3), shall be applicable until and unless revised or rescinded by the competent authority. The legislature consciously framed the said section through which Director, Directorate General of Valuation has been empowered to determine the custom values of certain goods or class of goods and thereafter issue valuation rulings, for application across the board for levy of duty and taxes on the imported/exported goods, this is obviously with reference to Section 25(13)(a) of the Act. Another established rule applicable to all statute is the rule of construction "ex-visceribus actus", which helps in avoiding any inconsistency either with a section or between 2 different provision of same statute. The Indian Supreme Court in Sultana Begum v. Prem Chand AIR 1997 SC 1006 while resolving inconsistency between section 47 and Order XXI, Rule 2, C.P.C. made the following observation on the Rule of "ex-visceribus actus". "On the conspectus of the case law indicated above, the following principal are clearly discernable: (1) It is the duty of the court to avoid a head on clash between two sections of the Act and to construe the provision which appears to be in conflict with each other in such a manner as to harmonized them. (2) the provision of one section of statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, find it impossible to effect re-conciliation between them . (3) It has to be borne in mind by all the courts all the time that when there are two conflicting provision in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of Rule of "harmonious construction" (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or useless lumber" is not harmonious construction . (5) To harmonized is not to destroy any statutory provision or to render it otiose." Finally, coming to the formed opinion of the respondents Nos. 1 and 3 in context of para 6 of the ruling and that the value declared by the exporter in the shipping bill for the purpose of assessment by the custom officials of the country of export is deems to be transaction value of the imported goods of the importer of Pakistan within the meaning of Section 25(1) and for the purpose of assessment that has to be applied. This is totally based on misconception as available mechanism for determination of value under Sections 25(1) and 25A in their expression and Chapter IX of the Rules or all together different from each other, value under Section 25(1) is the declared value of the importer, which is deems to be true/fair and qualifies the transaction value, unless contrary is proved through tangible evidence by the customs and intimation to the said fact is communicated to the importer in terms of Rule 109(3) of the Rules. Whereas, determination of custom value of the goods or the category of the goods is being made by the Director, Directorate General of Valuation under the provision of Section 25A of the Act. Hence, provision of Sections 25(1) and 25A are to be applied independently, any ruling with the insertion of said para is not valid being ultra vires to Section 25A as evident from the observation made by Mr. Justice it Muneeb Akhter of Hon'ble Supreme Court as the Judge of High Court of Sindh as their lordship was then in reported judgment 2018 PTD 1746 "that to apply the "invoice value" (i.e. the transaction value) if it is "higher" than the "formula a value". As noted above, section 25A contemplates and permit a pre-determination of custom value. It is impermissible to apply the transaction value in terms of Section 25A that value can only applied under section

25. The ruling is therefore, also ultra vires to section 25A." Therefore. I have no hesitation to answer issue No. (viii) in negative.

15. That as regard to issue No. (ix). Invoking of provision of Sections 32 and 32A of the Act by the respondent No. 3 on the appellant in totality is illegal void, as no mis-declaration in material particular has been made by the appellant in the transmitted declaration, nor the goods so declared were found contrary in the examination report, instead as declared to every extent e.g. description quantity in meters, weight and PCT heading. Similarly, documents uploaded by him in the reservoir of the GD at the time of transmitting under Section 79(1) and Rule 433 of the Act/Rules were not concocted, altered, mutilated, false, forged , tampered or counterfeit as such clauses (a) (b) (c) of the Section 32A is not attracted and is inapplicable to the extent of appellant. Clauses (b) and (c) are also irrelevant as it is matter of fact that appellant never gave any information electronically or by any other mean corresponding to GD referred in the show-cause notice as such clauses (b) (c) are certainly not attracted, clause (d) also does not apply as he never altered mutilated or suppressed any finding of any customs functionaries or any documents or in the computerized record. Clause (e) is also obviously irrelevant as no attempt, abatement or connivance in any action mention in clauses (a), (b), (c) and (d). The show-cause notice in this context by virtue of invoking irrelevant sections ought to be without lawful authority and as such void and ab-initio. For levelling charge for mis-declaration of value on an importer including appellant under the provision of Section 32 of the Act , neither shipping bill filed by the exporter in the country of export nor information available in the website of the custom department of the exporting country can be construed as an direct evidence within the contemplation available in paras 78, 101 of CGO 12/2002 dated 15.06.2002 and clause (d) or serial No. 1 of SRO 499(I)/2009 dated 13.06.2009 , which is evidential invoice of the similar goods of the same period and country of export, to be supplied mandatorily to the person upon which charge has been levelled, which is non existent, no charge of misdeclaration on the basis of value declared by the shipper in the shipping bill for Indian Customs or information available in the website can be levelled as those least qualify to the definition of direct evidence warranted under law. Rendering the show cause notice and order-in-original as of no legal affect being based on no evidence as held by Hon'ble High Court of Sindh in reported judgment 1991 PTD 551 that "Any action which is based upon no evidence is not permitted by law "and in 2006 PCr.LJ 1427 = 2006 PTD 2190 that " a mere assertion of the prosecution is no evidence". In issue No.(ix) is answered in negative.

16. That as regard to issue No. (x) , Despite availability of restraining order of the High Court of Sindh ,the respondent No. 3 opted to issue show-cause notice dated 24.04.2018, an order under the proviso or subsection (3) of Section 179 of the Act should had been passed by him within 120 days from the date of issuance of show-cause notice i.e. by 22.08.2018, which he failed on he pretext of restraining order of the High Court, which he on the first stage ignored , this act of his mandated upon him to pass order within 120 days of the date of show-cause notice to the contrary, order has been passed on 16.11.2018 after expiry of 86 days from the date of expiry of initial period of 120 days. Rendering, the order-in-original barred by time. Hence, without power/jurisdiction, without lawful authority, rendering it 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, 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 (Trib.) 1650 Pak Electron Ltd. v. Collector of Customs, Lahore and others. The issue No. (x) answer in negative.

17. That as regard to issue No. (xi). The respondents Nos.1 and 3 have also questioned the validity of the duties performed by the appellant in the capacity of clearing agent and levelled charges of connivance on him in the show-cause notice and was asked to submit reply for the contravention of invoked host of Sections of the Act, STA and ITO, no tangible evidence in support of the fact that how he contravened the invoked provision of the Act, STA and ITO was supplied despite mandated under law. Merely insertion of the word connivance in the show-cause notice is not enough for proving the guilt, it is for the respondents Nos.1 and 3 to bring home the allegation in terms of Articles 117 and 121 of the Qanun-e-Shahadat, 1984 (10 of 1984). Upon examination of the documents and the GD, I have observed that he transmitted that under the provision of Section 79(1) and Rule 433 of the Act/Rules correctly , no addition or alteration or any other evil deed was done by him while performing the said duties, the said fact has not been negated in the show-cause notice , even otherwise, a clearing agent cannot be construed to be privy to any act ought to be committed by the importer, for availing benefit, unless contrary, is proved by the respondents Nos. 1 and 3 which is non-existent. The reason for implicating the appellant in the capacity of clearing agent seems to be transmitting of CD , which is obviously has to done by him and for the said aspect he has been granted license. Proviso of subsection (3) of section 209 of the Act is relevant, which cast liability for recovery from the agent for any amount of duty not levied or short levied or erroneously refunded is subject to apparent wilful act, negligence or default. In case of non availability of any of these , no recovery can be made from him . Therefore, limited liability are east upon him under the Act. Even otherwise, any proceeding for willful act negligence or default has to be undertaken against the agent by the licensing authority under different Sub-Rule of Licensing Rules embodied in Chapter VIII of Rules, not under the provision of the Act , STA and ITO and by the respondent No. 3 as has been done in the instant case, rendering issuance of show-cause notice and passing of order-in-original to the appellant in the capacity or clearing agent by respondent No. 3 is without lawful authority/jurisdiction and as such ab-initio , null and void. The issue no (xi) is answer in negative.

18. What have been discussed hereinabove, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio-decidendi in the judgments of the Superior Courts long with additional observation made thereon, the Respondents are directed to comply the statutory provision, under subsection (4) of Section 25A of the Customs Act, 1969 and to assess the subject impugned goods in accordance with Valuation Ruling No. 776/2015 dated 04.12.2015, the impugned imposed fine and penalty on the goods and on the appellant's is also remitted by setting aside the orders passed thereon being illegal , void ab-initio and appeals are allowed with no order as to cost.

19. The respondent No.2 is directed to issue delay and detention certificate under the provision of Section 14A(2) of the Act in duplicate to the appellant for submission with the respective shipping company/terminal for waiver of accumulated container detention/rental and terminal demurrage/storage charges.

20. Judgment passed and announced accordingly. SA/84/Tax (Trib.) Appeals allowed.