Procedure in appeal

Petitioner sought direction to the Commissioner (Appeals) to decide its pending appeal and stay application and in the meanwhile sought a restraining order against the department from initiating recovery proceedings in pursuance of recovery notice

Validity

Taxpayer was entitled to adjudication in respect of his disputed tax liabilities by at least one independent forum outside hierarchy of the department

Constitutional petition was disposed of with direction to the Commissioner (Appeals) to hear and decide the appeal and stay application within a period of sixty days and till then no coercive measures were to be adopted by the department.

Appeal was filed before Collector of Customs (Appeals) on 23-06-2017 and order on appeal should have been passed on or before 20-10-2017 or within further extended period of 60 days prior to lapse of initial 120 days on availability of exceptional circumstances and recording of those, after serving notice to the appellant

No extension whatsoever was given by the Collector of Customs (Appeals) prior to expiry of initial period of 120 days, evident from the order itself, which was completely silent in that regard

For validating the delay in passing order Collector of Customs (Appeals) had relied on extension granted by Board on 23-03-2018

Such extension was not valid by virtue of the fact that it had to be given prior to the lapse of currency of initial period of 120 days

Extension granted by Board was nothing more that flogging a dead horse for giving a lease of life

Any medication or cure had to be undertaken prior to demise of an issue, it could not be revived even through artificial support when the issue had gone to the annul of history

Order passed by Collector of Customs (Appeals) was barred by 221 days, hence void ab initio and not enforceable under law.

Appellant assailed order passed by Commissioner (Appeals) whereby he had decided the appeal without hearing the appellant

Validity

Commissioner had not treated the appellant fairly and justly because he had passed a non-speaking order in a casual manner by himself admitting that the appellant had not attended the hearing nor submitted any supporting documents

Impugned order was vacated and the case was remanded to the Assessing Officer for providing proper opportunity of hearing to the appellant

Appeal was disposed of, accordingly.

Appellant imported consignment of perfumed dash board car polish in aerosol container, assorted fragrance and car carburetors

Internal Auditor, after delivery of goods, passed re-assessment order

Appellant assailed the re-assessment order in appeal before Collector (Appeals), who declared same to be without lawful authority and allowed the appeal

Collector (Appeals) however, observed that Customs authorities were at liberty to take legal course of action under Ss. 32, 193 & 195 of Customs Act, 1969

Validity

Collector (Appeals) was empowered to pass order in writing through which he could either extend, confirm, modify or annul the decision against which appeal was filed

No further action or direction was warranted under the law

Observation passed by Collector (Appeals) did not fall within the ambit of word "modify"

Collector (Appeals) tried to remand the case in a veiled manner in derogation of S.193A(3), Customs Act, 1969

Incorporation of S.193, Customs Act, 1969 by Collector (Appeals) was senseless, as no appeal could be filed under the said section against his order and that also before him

Order passed by Collector (Appeals) could only be assailed before Customs Appellate Tribunal under S.194A(1) of Customs Act, 1969

Action under S. 195, Customs Act, 1969 was out of context as none of the officers of Clearance Collectorate was empowered to re-open the order of Collector (Appeals)

Collector was empowered to re-open the assessment order under S. 195, which was not done and could not be opened at later stage

Right of appeal having been accorded under the provisions of S.193, Customs Act, 1969 the provisions of S.195 of the said Act became un-operational and could not be exercised

Appellate Tribunal expunged the observation of Collector (Appeals) being illegal, void ab initio and of no legal effect

Appeal was allowed, accordingly.

Collector (Appeals), while allowing appeal against re-assessment order, observed that Customs authorities were at liberty to take action against the importer under S. 32 of the Customs Act, 1969

Validity

Section 32 Customs Act, 1969 could be invoked on an importer upon availability of deliberate act or connivance, error, ommission or misconstruction

No deliberate act, connivance, error, ommission or misconstruction was apparent on the record and for that reason no show cause notice was issued

Customs authorities had instead passed re-assessment order under S.80(3) of the Act in isolation and without having recourse to the provisions of S.80(2) of the Customs Act, 1969

No show cause notice at belated stage could be issued by any officer and that also in the presence of the order of Collector (Appeals), by virtue of non-availability of enabling provision in Customs Act, 1969

Appellate Tribunal expunged the observation of Collector (Appeals) being illegal, void ab initio and of no legal effect

Appeal was allowed, accordingly.

Appeal was filed on 28-04-2017; order in terms of S.193A(3), Customs Act, 1969 had to be passed by Collector of Customs (Appeals) within 120 days i.e. on or before 26-08-2017 or within further extended period of 60 days, upon availability of exceptional circumstances and recording of those after issuance of notice to the appellant

Order on appeal was passed on 14-11-2017 without any extension prior to expiry of initial period of 120 days

Collector, for validating the delay in passing order, placed reliance on extension granted by Board which was not right as the issue was liable to be annulled

Order passed by Collector of Customs (Appeals) being barred by 125 days, was void ab initio and not enforceable under law

Appeal was allowed, accordingly.

Appeal was filed on 07-04-2017; an order in terms of S.193A(3), Customs Act, 1969, had to be passed by Collector of Customs (Appeals) within 120 days or within further extended period of 60 days, in terms of its proviso upon availability of exceptional circumstances and recording of those after issuance of notice to the appellant

Order on appeal should have been passed on or before 14-07-2017, which Collector of Customs (Appeals) failed to pass; additionally no extention whatsoever was given as evident from the contents of the order, which was silent

Extension granted by Board after lapse of 120 days was nothing more than flogging a dead horse for giving a lease of life

Any medication or cure had to be undertaken prior to demise of an issue, it could not be revived even through artificial support when the issue had gone on to annul

Order passed by Collector of Customs (Appeals) on 22-12-2017 was barred by 69 days, hence void ab initio and not enforceable under law

Appeal was allowed, accordingly.

Deputy Collector of Customs provisionally released the goods of appellant and transmitted the goods declaration to the Directorate General of Valuation for determination of value

Deputy Collector of Customs thereafter determined the liability of appellant on the basis of value determined by Assistant Director, Directorate General of Valuation

Appellant filed representation to the Director, Directorate General of Valuation but it was not decided

Appellant thereafter assailed the order of Deputy Collector of Customs before Collector of Customs (Appeals), who dismissed the same on the ground of limitation

Validity

Appeal was filed on 23-10-2017; an order on the appeal was to be passed by Collector of Customs (Appeals) within 120 days or within further extended period of 60 days, upon availability of exceptional circumstances and recording of those after issuance of notice to the appellant

Collector of Customs (Appeals) passed order on 01-03-2018, when the initial period of 120 days had lapsed

Impugned order was silent about any extension either granted by Collector or Federal Board of Revenue

Order passed by Collector of Customs (Appeals) was barred by time, therefore, was without jurisdiction

Appellate Tribunal set aside the orders passed by officers of customs and allowed the appeal.

Plea of appellant was that order on appeal should have been passed on or before 21.7.2017 whereas it was passed on 29.12.2017

Validity

Appeal against the order of Deputy Collector of Customs (Adjudication) had to be decided within a period of 120 days

Extension of 60 days was not given by Collector of Customs (Appeals) on the ground that no exceptional circumstances were available

For validating the delay in passing the order Collector of Customs (Appeals) had relied on extension granted by the Federal Board of Revenue on 14.11.2017

Such extension was not valid by virtue of the fact that it had to be given prior to the lapse of currency of initial period of 120 days

Extension granted by the Board was nothing more than flogging a dead horse for giving a lease of life

Order passed by Collector of Customs (Appeals) was barred by 254 days, hence void ab initio and not enforceable under law.

Appeal, in the present case, was filed by appellant on 19-12-2016, order against which had to be passed on or before 19-4-2016

No extension was granted by Collector prior to the lapse of initial period due to the fact that no "exceptional circumstances" existed

Collector, for validating the delay in passing order, placed reliance on extension granted by the Board which was nothing more than exercise in futile

Order passed by Collector of Customs (Appeals) was barred by 254 days, hence void ab initio and not enforceable under law.

After passing of assessment order by competent authority, it could not be disturbed by any authority by preparing contravention report and overlapping the existing assessment order for initiation of adjudication proceedings

Only course available before Customs authorities was to challenge the assessment order before Collector of Customs (Appeals)

Customs authorities were entitled to incorporate all apprehensions, misreading of facts and contraventions of provisions in appeal

Collector of Customs (Appeals), if considered that duty and taxes had been either not levied or short paid on the basis of goods found subsequent to clearance, was empowered to issue show-cause notice

Deputy Collector of Customs Intelligence Units reopened the assessment and clearance order under S. 195, Customs Act, 1969 which power was not vested in him or Additional Collector of Customs (Adjudication)

Where the right of appeal had been accorded by the legislature, S.195 became un-operational and could not be exercised even by the authority defined therein

Transaction in question stood past and closed by virtue of non-filing of appeal against assessment order

Action of issuance of show-cause notice and passing of order-in-original fell under the ambit of "double jeopardy" as envisaged in Art. 13 of the Constitution

Appeal was allowed, accordingly.

Clearance order cannot be disturbed by any authority by preparing contravention report and initiating adjudication proceedings

After passing of clearance order, only course available before officer of Customs is to challenge the said order before the Collector of Customs

Collector of Customs (Appeals) is empowered to issue show-cause notice to the importer

In the presence of appealable order, fresh order cannot be passed even through issuance of show-cause notice.

Such period could be extended for further 60 days upon availability of "exceptional circumstances" and recording of those after serving notice and hearing the taxpayer

Appeal was filed by appellant on 28-4-2017, an order against which had to be passed on or before 26-4-2017

No extension was granted by Collector prior to lapse of initial period; to the contrary, Collector obtained extension from Federal Board of Revenue which extension was without lawful authority as the period had been extended after expiry of initial period of 120 days

Order passed by Collector of Customs (Appeals) was barred by time and as such of no legal effect

Appellate Tribunal set aside the order passed by Collector of Customs (Appeals) and allowed the appeal.

Assessment order passed by competent authority, cannot be disturbed by any authority by preparing contravention report and overlapping the existing assessment order for initiation of adjudication proceedings

Only course available before Customs authorities is to challenge the assessment order before Collector of Customs (Appeals)

Customs authorities are entitled to incorporate all apprehensions, misreading of facts and contravention of provisions in appeal

Collector of Customs (Appeals), if considers that duty and taxes have been either not levied or short paid on the basis of goods found subsequent to clearance, is empowered to issue showcause notice

In the presence of an appealable order, fresh order cannot be passed even in the shape of reassessment order or through issuance of show-cause notice

Passing of assessment order in such a way falls within the ambit of "double jeopardy" not permitted under Art. 13 of the Constitution.

No extension was granted by Collector prior to lapse of initial period due to the fact that no "exceptional circumstances" were available

Collector, for validating the delay in passing order, placed reliance on extension granted by Board which was nothing more than giving a lease of life

Matter could not be revived even through artificial support when the issue was liable to be annuled

Order passed by Collector of Customs (Appeals) was barred by 221 days, hence void ab initio and not enforceable under law.

After passing of assessment order under S.80 of the Customs Act, 1969 and under R.438 of Customs Rules, 2001 and clearance of goods under S.83 of Customs Act, 1969 and R.442 of Customs Rules, 2001 by adjudicating authority, in exercise of the powers vested upon him through S.R.O. No. 371(I)/2001, dated 15-6-2001; such order could not be disturbed by any authority for the purpose of preparing contravention report and adjudicating proceedings

Only course left for adjudicating authority, was to challenge the said order before the Collector of Customs (Appeals) under S.193 of the Customs Act, 1969

Collector Customs (Appeals), was empowered to incorporate in his order all the apprehensions, misreading of facts and contraventions of the provision of Act/Rules

Collector of Customs, upon receipt of the appeal and going through the facts and grounds, if would think that the contention of the Deputy Collector of Customs, Customs Intelligent Units, seemed to be correct and the duty and taxes had not been either levied or short paid on the basis of the goods already cleared, was empowered to issue show-cause notice to the importer, as expressed in second proviso to subsection (3) of S.193-A of the Customs Act, 1969

Deputy Collector of Customs, in the present case, instead of such prescribed method, reopened the assessment/clearance order under S.195 of the Customs Act, 1969

When the right of appeal had been accorded by the legislature in the provision of S.193 of the Customs Act, 1969, provision of S.195 of the Customs Act, 1969 was not operative and could not be exercised, by the authority defined therein

Act and commission of Deputy Collector of Customs, Customs Intelligence Unit, was in derogation of Ss.193 & 195 of the Customs Act, 1969 and being of no legal effect, was coram non judice.

First Appellate Authority within the meaning of S.128(5) of the Income Tax Ordinance, 2001 had been authorized under law to admit new evidence if he was satisfied that appellant was prevented by sufficient cause from producing such material or evidence before the Commissioner.

Revenue contended that First Appellate Authority was not justified to entertain the documents/evidences which were not produced before the Taxation Officer and that First Appellate Authority was not justified to delete and reduce the tax charged under Ss.161/205 of the Income Tax Ordinance, 2001 on the basis of documents/evidence which were not produced before the Taxation Officer

Taxpayer contended that he was busy in obtaining visa of foreign countries to participate in international convention of Rotary Club and applied for adjournment; and produced (i) copy of letter of adjournment (ii) copy of passport showing affixation of visa (iii) and copy of air ticket showing departure; and also contended that Taxation Officer was in hurry in disposing of the case which was just 9 days after issuance of Show Cause Notice

Validity

Taxpayer was prevented by sufficient cause due to which he could not submit material/evidence before Taxation Officer

First Appellate Authority had rightly entertained material documents which could not be produced before the Taxation Officer

Order of First Appellate Authority was upheld by the Appellate Tribunal and appeals of the department were accordingly rejected.

Connotation.

Explained.

Assessing Officer did not requisite any material or evidence from the taxpayer, rather Assessing Officer had given unambiguous decision without requisitioning any material or evidence from the taxpayer that the taxpayer had failed to deduct tax under S.153 of the Income Tax Ordinance, 2001

Payment made on different heads of accounts were inadmissible in view of provision of S.21(c) of the Income Tax Ordinance, 2001

Action of Assessing Officer was in violation of the instructions issued to the Assessing Officer by the Federal Board of Revenue through circulars

Undisputed fact being that Assessing Officer had not requisitioned any material or documents as envisaged in S.128(5) of the Income Tax Ordinance, 2001, said provisions were not attracted

First Appellate Authority was not justified to dismiss the appeal of the taxpayer on this sole ground.