2020 PLP (Trib (PTD)

JEHANZAIB WAHLAH, MEMBER JUDICIAL-III.

Through this order I intend to dispose off Appeal No.K-80/2018 directed against Order-in-Appeal No.772/2017 dated 28.11.2017 passed by Collector of Customs (Appeals), Karachi.

2. Brief, facts of the case are that the appellant imported a consignment of 20350 kgs of perfumed dash board car polish in aerosol container and assorted fragrance of 450 ml and 1370 kgs of car carburetors against GD.No.KAPW-HC-152384-28.01.2017 which was allowed clearance by the competent authority defined in Section 2(a) of the Customs Act, 1969 (Act) in exercise of the powers vested with them vide SRO No.371(I)/2002 dated 15.06.2002 after passing valid assessment/clearance order under the provision of Sections 80 and 83 of the Act and Rules 438 and 442 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 (Rules), consequent to which the clearing agent of the appellant obtained the delivery from the terminal and transported that to the warehouse of the appellant. On 14.03.2017, The Internal Auditor passed reassessment order. The vires of which were assailed by the appellant before respondent No.4, who vide order dated 28.11.2017 declared the reassessment order dated 14.03.2017 as without lawful authority, ab-initio and void and allowed the appeal. Thereafter, he adduced direction to respondents Nos.1 and 2 in the last 03 lines of the order that they are at liberty to take legal course of action available under sections 32(2), 32(3), 193 and 195 of the Act as deemed fit of the circumstances of the case, for the purpose of easement same is reproduced here-in-under : "The respondent are however at liberty to take legal course of action available under Section 32(2), 32(3), 193 or 195 of the Customs Act, 1969 as deemed fit considering the circumstances of the case".

3. Appellant being aggrieved by the said observation/direction preferred the instant appeal with the submission that the respondent No.4 has no mandate to adduce such observation in the presence of clear order as expressed in Section 193A (3) of the Act, while doing so he in fact tried to nullify his order and remanded the case despite having no power under the aforesaid provision, in addition to the grounds taken in the memo. of appeal. On the date of hearing consultant strictly argued in line with those and prayed for expunging of (03) three lines of the order while holding that incorporation of those without lawful authority / jurisdiction. Hence, ab-initio null and void.

4. No cross objections under Section 194A (4) of the Act were filed within the stipulated period of 30 days by the respondents against the appeal preferred by the appellant, the respondent supported the observation / direction of the respondent being correct in fact and law and prayed for dismissal of the appeal, being of no substance.

5. Arguments heard and record perused. As per the expression of section 193A(3) of the Act the respondent No.4 is empowered to pass order in writing through which he can either extend, confirm, modify or annul the decision or order appeal against, meaning of these word available in Black's Law Dictionary and Mariam Websters are "to spread or stretch forth; to stretch out to fullest length, "to make firm or certain", to give approval, to make stronger or more certain, to make firm or firmer, a change to something and alteration; to change some parts, while not changing other parts, to make less extreme, to limit or restrict the meaning of specially in a grammatical construction, to declare or make legally invalid or void, to reduce to nothing and to make ineffective or inoperative". Analyzing the order of the respondent No.4 in the light of the meaning of the words incorporated in aforesaid provision of the Act, the respondent No.4 on adducing the sentence in the order reading as "I find that the action taken by the respondents are not in conformity with the provision of law as set out in the above order. I, therefore, allow the appeal and set aside the assessment order", he in fact annulled the assessment order, no further action or direction is warranted under the law. By adducing three lines as obiter dicta to which even not empowered, he after setting aside the reassessment order and allowing the appeal, needlessly, inscribed 03 lines in the order, which least nullify the legality of the order as the said sentence even does not falls within the ambit of word "modify, which he could had done prior to allow of appeal and setting aside of reassessment order, not after that. Respondent No.4 in transgression of his vested powers tried to remand the case in veiled manner, having no warrant of law and completely in derogation of the provision of Section 193A(3) of the Act.

6. Notwithstanding, in order to evaluate the acumen and wisdom of respondent No.4, one has to look into the provision of Sections 32(2) and (3), 193 and 195 of the Act. Section 32(2) can be invoked on an importer upon availability of, deliberate act or connivance, whereas, 32(3) could be invoked in case of short payment of duty and taxes, etc., due to error, omission or misconstruction. In the instant case, either deliberate act, connivance, error, omission and misconstruction is apparent and for that reason no show cause notice was issued despite mandated under law, instead reassessment under section 80(3) was made in isolation without recourse to the provision of Section 80(2) of the Act. No show-cause at this belated stage could be issued by any officer of the customs and that also in the presence of order of respondent No.4, by virtue of non-availability of enabling provision in the Act. Incorporation of section 193 of the Act by the respondent No.4 in the order is also senseless, as no appeal could be filed under the said section against (sic???) his order and that also before him, order passed by him could only be assailed before the Customs Appellate Tribunal under the provision of Section 194A(1) of the Act. Similarly action under section 195 is out of context, as none of the officers of the Clearance Collectorate are empowered to reopen order of respondent No.4 with the exception of Board, under the said provision the Collector of Customs was empowered to reopen the assessment order dated 13.02.2017, which was not done and cannot be reopened at this stage. It is to be noted that when the right of appeal has been accorded to the respondent under the provision of section 193 of the Act, the provision of section 195 became un-operational and cannot be exercised and as held 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that "department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal)

1st order-in-original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not over see or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority".

7. In the light of the adumbration, It is held that the respondent No.4 was having no mandate to inscribe in writing in the order against which appeal has been filed any sentence or phrase not following within the literal meaning of the word, extend, confirm, modify or annul, as it is well settled law that when a law required and act to be done in a particular manner it had to be done in that manner alone, not otherwise as held in the cases of Muhammad Hussain and another v. Muhammad Shafi and another (2004 SCMR 1947) and Munawar Hussain and 2 others v. Sultan Ahmed (2005 SCMR 1388) and 2006 SCMR 129 DGI&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others that "If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted -- each and every words appearing in a Section is to be given effect and no other word is to be rendered as redundant or surplus - when the legislature required the doing of a thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred -- if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare tacitum". Therefore, by inserting last 03 lines in the order, respondent No.4 acted without power / jurisdiction and as such the direction given by him to the respondents Nos.2 and 3 as well is without lawful authority and jurisdiction.

8. In the light of above deliberation and adhering the ratio decidendi set forth by the judicial fora, I, expunge last 03 lines of the order of the respondent No.4 being ab-initio, illegal and void and as such is of no legal effect and allow the appeal as no order as to cost. SA/42/Tax(Trib) Order accordingly.