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Petitioner: Messrs MALIK RUBBER SHEET FACTORY VS Respondent: DEPUTY COLLECTOR and another
Court Name: Customs Appellate Tribunal Judge(s): Adnan Ahmed Title: Messrs MALIK RUBBER SHEET FACTORY vs DEPUTY COLLECTOR and another Case No.: Cus.Appeal No,K-664 of 2011 Date of Judgment:2015-02-14 Reported As: 2016 PTD (Trib.) 1847 Result: Appeal accepted
Judgment ORDER ADNAN AHMED, MEMBER (JUDICIAL-II): The appeal, filed by the appellant, is directed against Order-in-Appeal No, 5427/2011 dated 11.06.2011 passed by Collector of Customs (Appeals) (here- inafter to be referred as respondent No, 2) maintaining the Order-in-Original No, 84/2010 dated 26.11.2010 passed by the Deputy Collector of Customs (Group-II), MCC of Appraisement, Custom House, Karachi (here-in-after to be referred as respondent No, 1). 2. Briefly, facts of the case as stated in the show cause notice by the respondent No, 1 are that the appellant imported a consignment declared to Contain "Printing Ink in assorted colors" weighing 475 kgs from Dubai and filed Goods Declarations (GD) for home consumption bearing machine No, HC-30374-24102009 IGM No, 6193/2009 dated 01.10.2009, Index No, 840 and sought clearance thereof through his clearing agent M/s. Al-Muqtadir Services (CHAL No, 2584). The GD was referred to the Shed Staff for confirmation of the contents and on examination of the consignment the shed staff reported that the printing ink imported in this case were of Indian origin and not importable in terms of Appendix "J" of the Import Policy Order (IPO) 2009-2010 read with para 5(B)(iii) of IPO, 2009-2010 read with para 8 ibid on the basis of said allegation show-cause notice dated 25.11.2009 was served on appellant, which was replied through letter dated 11.12.2010 but of no avail and the respondent No, 1 passed order-in-original dated 26.11.2010, paras 4,5 and 6 are relevant and are reproduced here-in-below:-- 4- the records available on file and the submission plea of the consultant have been thoroughly examined. The invoice found with the consignment shows that the exporter is issuing invoices without applying his mind. He is preparing and issuing them according to his own and clientsrequirement. In the instant case the invoice shows that the origin is India and final
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destination is Sharjah, U.A.E. It also certifies that the goods are of Indian origin. The scrutiny of records'shows that the supplier i.e, Messrs Rastriya Engineers (Pvt.) Ltd., U.A.E. Is basically an indenter who has supplied goods to Messrs Malik Rubber Sheet Factory of India origin and have forgotten to change details in invoice, which has been printed through computer apart from consigner and consignee's names. Hence, it is easy to discern that the goods are of Indian origin and as the same are not covered under Appendix-G, an attempt is being made to conceal/hide their origin through mis-declaration. 5. The plea of the consultant Mr. Nadeem Ahmed Mirza to release the goods after imposition of 35% fine was also considered. However, the undersigned is of the view that as there is no provision of release of Indian origin goods under SRO 499(1)/2009 dated 12.06.2009, the same cannot be allowed for release under Section 181 of the Customs Act, 1969 in lieu of redemption fine. As the decisions of the High Courts are case specific, the same cannot be applied in the instant case at this quasi judicial stage in the absence of legal provisions. 6. The consignment is, therefore, ordered to be confiscated out rightly and a penalty of Rs,50,000/- each is imposed against the importer and clearing agent for the attempt of mis-declaration and violation of Import Policy Order, 2009-2010. 3 The order was challenged before Respondent No,2 who also vide his order dated 11.06.2011 rejected the appeal by observing in para 6 that:-- "I have thoroughly examined the entire case record and given very careful consideration to the arguments advanced before me. It is an admitted position that the goods imported in this case are of Indian origin which are not importable from India as per Appendix-G of the IPO, 2009-2010 read with para 5 (B) (iii) and para 8 ibid and the same are required to be confiscated outright as per law for the time being enforced. Obviously, by importing the banned goods the appellant had violated the provisions of law quoted above. The penalty imposed upon him is also inconsonance with the gravity of the offence committed in this case, the arguments advanced by the learned consultant, reproduced at para 3 above, do not find any support from the evidence on record and the case law quoted by him is not relevant to the facts and circumstances of the instant case. Therefore, the same are ruled to be untainable. Consequently, I hold that the impugned order is correct in law and on fact and there is no reason to interfere with the same. The appeal is rejected accordingly." 4. The appellant Messrs Malik Rubber Sheet Factory, Lahore has challenged the order of the respondent No, 2 by way of the instant Mr. Nadeem Ahmed Mirza (Consultants) on the strength of the grounds incorporated in the memo. Of appeal and which are inter alia: (a) That no penalty can be imposed for mis-declaration by the respondent unless charge under Section 32 of the Customs Act, 1969 in the show cause notice is leveled. The show cause notice is completely silent in this regard, meaning thereby that the respondent has ventured outside the scope of show cause notice, such type of orders are alvys declared palpably illegal by the Superior Courts. Reliance is placed on judgments 1987 SCMR 1840,2004 PTD 1449, PTCL 2004 CL 35, 2008 PTD (Trib.) 36, 2007 PTD 2265, 2010 PTD (Trib.) 1377 and 2012 PTD (Trib.) 1697. (b) That the show cause notice and order-in-original in the instant case has been issued/passed by the Deputy Collector despite no jurisdiction under Section 179 Customs Act, 1969 as the amount of duty and taxes involved in the instant case are Rs,15,509/- which fall within the powers of Assistant Collector. Rendering the show cause notice and order-in-original ab-initio void. It is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. If the opinion advanced invariably by the respondents are to be accepted that the adjudicating authority was empowered under section 179 of the Customs Act, 1969, in that case there was no cause or reason for the legislature to incorporate Section 179 in the Act regarding the jurisdiction of the respective officer, the hierarchy of distribution of jurisdiction
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explicitly provided by Section 179 of the Act shall be rendered redundant. Also the consequent result would be a total anarchy where the superior officers would be making all efforts to exercise the adjudication powers clearly conferred by law upon their subordinates. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law, the special provision shall prevails (reference is invited to the case of Lt. General (Retd.) Shah Rafi Main v. Lahore Race Club, 2004 CLD 373. The power of adjudication, as already observed, is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principal of interpretation of statute i.e, that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL (2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this law favour actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587 is referred. Their lordship observed as under:-- "it is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void, ab-initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation of power warranted by law (the Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 at p.339) an act done which the person doing, it has no jurisdiction at all to do or which was clearly outside the scope of his activities (The State v. Zia-ur-Rehmah PLD 1973 SC 49) and a judgment or order delivered by a court or a judicial or a quasi judicial authority not competent to deliver it (Muhammad Saleh and others v. Messrs United Grain and Fooder Agencies PLD 1964 SC 97).The Constitution jurisdiction can thus be exercise when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No, 1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own cost". (c) That while dealing with the powers of adjudication, it is needless to observe, that our Supreme Court has jealously guarded the same. In Assistant Director v. B.R. Herman Mohata Ltd. PLD 1992 SC 485. A full bench of Supreme Court was pleased to observe that section 223 of the Customs Act, 1969 could not be employed so as to interfere with the judicial or quasi judicial functionaries. It was clearly observed that the power of the CBR as to prescribed guideline were not relevant for the exercise of judicial function. To similar effect is the judgment of Supreme Court reported as Central Insurance v. CBR 1993 SCMR 1232. In this case the CBR issued direction for the reopening of Income Tax Assessm ent under section 65 of the Income Tax Ordinance, 1979. It was held by the Supreme Court that the CBR did not figure in the hierarchy of the officer provided in the statute for the purpose of assessm ent and adjudication. On the basis of this it was held that the directions of the CBR to reopen the assessm ent was without jurisdiction and the adjudication officer was directed to apply its own mind. Reliance is placed on the order of the Tribunal in S.T. Appeal No, 05/2007 Messrs Muller and Phipps Pakistan (Pvt.) Ltd. v. The Collector of Sales Tax Enforcement LTU, Karachi. (d) That in support of his stance, the appellant further draws attention of the Hon'ble Tribunal that it is a settled principle in Article 4 of Constitution of Islamic Republic of Pakistan that "If the law had prescribed a method for doing something in a particular manner such provision of law is to be
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followed in letter and spirit achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same view was subsequently fortified by the Hon'ble Supreme Court of Pakistan in its reported judgment 2006 SCMR 129 Director, Directorate General of Intelligence and Investigation and others v. Al-Faiz Industries (Pvt.) Ltd. And others while holding that "Section 196 requires filing of an appeal by the Collector and none else, the appeal filed by the Director of Customs would therefore be absolutely, illegal , incompetent and not maintainable. In the light of clear and unambiguous expression of provision of section 179 of the Customs Act, 1969 the adjudication process can only be undertaken by Assistant Collector of Customs, Group-II and none else. The passed order-in-original by the Deputy Collector, Group-II, is therefore absolutely, illegal, incompetent and not maintainable under law. (e) That it is also pertinent to add further that cases where orders are made without jurisdiction/powers were declared as of no legal authority as held by their Lordship of Supreme Court of Pakistan that it is an element to principle that is a mandatory condition for the exercise of jurisdiction by the Court, Tribunal Authority is not fulfilled then the entire proceeding which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings which follows become illegal and suffer from want of jurisdiction/powers. Any order passed in continuation of these proceedings in adjudication or appeals equally suffers from illegality and are without jurisdiction Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Nowshehra and others v. Sarfraz Khan and others. (f) That irrespective of the referred in above gross illegalities , it is also appropriate for the appellant to state that in terms of Subsection (3) of Section 179 and its proviso the adjudicating authority has to decide a case within 120 days from the date of show cause notice or within such period extended by the Collector for which reason shall be recorded in writing, but such extended period shall in no ease exceed 60 days. (g) That the show cause notice to the appellant was issued/served on 25.11.2009 under section 180 of the Act, for the alleged ITC. Resultant, the case should had been decided within 120 days from the day of issuance of show cause notice in terms of Subsection (3) of Section 179 or in any way if the prescribed time limit was extended by the competent authority for further 60 days, meaning the time of adjudication stretched to 180 days as against 120 days. Whereas, the order was passed by the respondent on 26.11.2010, after expiry of entire 180 days, rendering the order-in-original time barred by 184 days. (h) That the appeal with the respondent No, 2 was filed on 30.12.2010 and an order under the proviso of subsection (3) of section 193-A of the Customs Act, 1969 should has to be passed by the respondent No, 2 within 120 days i.e, on or before 29.04.2011 from the date of filing of appeal or within a further extended period of 60 days during the initial period of 120 days with reason to be recorded for extension in writing. No extension was granted by respondent No, 2 prior to expiry of initial period of 120 days instead was granted on 11.06.2011 as evident from Para 5 of the order-in- appeal. Hence the order is barred by 43 days. (i) The narration of the respondent in para 5 of order-in-appeal that the proceeding in this case could not be finalized within the stipulated time limit due to adjournment obtained by the appellant consultant. This is completely a lie as the consultant of the appellant sought no adjournment instead attended the hearing fixed for 10.02.2011 and 17.02.2011. Hence, the extension granted if any by the respondent No, 2 is illegal. Beside the respondent No, 2 could not extend the time, unless a notice to the appellant was served as held by the Supreme Court of Pakistan in its
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reported judgment 1999 SCMR 1881 Khalid Mehmood v. Collector of Customs, Customs House, Lahore. Their lordship of Supreme Court held:-- "S. 168----If initial period of two months, envisaged in S.168, Customs Act, 1969 is allowed to go by without any extension having been made, vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting my extension---Question whether an extension, if any was actually made, within the initial period of two months from the date of seizure and merely because it purported to have been to so made, within time may not be itself be enough the contrary may be shown but, ordinary within the Customs Jurisdiction alone." ."thus if initial period of two months, envisaged in S.168, Customs Act, 1969 is allowed to go by without any extension having been made, a vested right may come to accrue to the affectee and Collector should be obliged to issue a notice and accord necessary hearing before granting any extension--- correspondingly as always , it would remain a moot question whether an extension , if any, was actually made within the initial period of two months from the date of seizure and merely because it purports to have been so made within time, may not be itself be enough the contrary may be shown but, ordinarily within the Customs Jurisdiction alone. " (j) That in the instant case no extension was given by the respondent No, 2 prior to expiry of initial period of 120 days. Nevertheless, if it is considered for the sake of arguments that was given even prior to expiry of initial period of 120 days, i.e, also illegal because the said extension was given without answering the condition prescribed for exercising such powers i.e, he has to apply his mind and after making an objective assessment, if he comes to the conclusion that the extension of time is to be granted, he has to grant the same, not merely on the basis of his personal opinion that the time was lapsed due to frequent adjournment, which were in fact never applied by either side and the said fact can be re-verified by calling the record of the case resting with respondent No, 2. Which will amply confirm that granting of extension is unlawful and without jurisdiction, it is settled principle that "where exercise of jurisdiction by any authority or Court or Tribunal is made subject to existence of a specific condition, then such power cannot be exercised in the absence of that condition---where an executive authority exercise its jurisdiction after expiry of period provided in the statute, such exercise manifestly suffer from lack of jurisdiction as held by the Superior Court in umpteenth judgment e.g. 2004 PTD 369, 1998 MLD 650, 2005 PTD 23, 2003 PTD 2821, 2004 PTD (Trib.) 2898 and 2007 PTD 2092. (k) That since the extension was granted by the board and respondent No, 2 without any lawful authority and even in the absence of adherence of proposition of law, the passed order- inoriginal/appeal are hit by limitation as it was passed after the lapse of full allotted period and initial period of 120 days given in subsection (3) of Sections 179 and 193A of the Customs Act, 1969. Hence, it is of no legal effect, void and ab-initio as held by Superior Courts in their 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 and 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, 2011 PTD (Trib.) 79, 2011 PTD (Trib.) 987 and 2011 PTD (Trib.) 1010. (1) That lastly it is imperative for the appellant to rely on the similar nature of case, where the Collector of Customs, Model Customs Collectorate of PaCCS filed a reference Special Customs Reference Application No, 101 and C.M.A No, 1281 of 2009 reported as 2010 PTD 465 Collector of Customs, Model Customs Collectorate v. Messrs Kapron Overseas Supplies Co., (Pvt) Ltd raising the question on the strength that passing order after limitation or without jurisdiction is a technical
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defect and least render the proceeding as ab-inito void. The Hon'ble High Court dismissed the reference while holding that "any transgression of such jurisdiction for not being a technical defect would render entire exercise of authority to be abinitio, void and illegal", without discussing the merit of the case, which relates to origin of imported goods and the Hon'ble High Court further held that "the exercise of jurisdiction by an authority is a mandatory requirement and its non fulfillment would entail the entire proceeding to be "coram non judice. " (m) The appellant carves his right to add any fresh grounds at the time of hearing beside placing any valid incriminating evidence/documents 5. No cross objection were submitted neither within the stipulated period given in Subsection (4) of Section 194A of the Customs Act, 1969 by the respondent No, 1 nor todate. However, Mr. Khalid Pervaiz Appraiser appeared and stated that the order passed by the forum below are correct and to be maintained. The consultant, in addition to the arguments referred in para 4 above further stated during the course of hearing that the respondent Collectorate has already auctioned the appellant goods without following the procedure defined for auction in Chapter V of Customs Rules, 2001 and section 201 of the Customs Act, 1969, therefore, the appellant be awarded the sale proceed of the auctioned goods. 6. Rival parties heard and case record perused. 7. The power of adjudication is defined in Section 179 of the Customs Act, 1969 and Notification No, 371(1)/2002 dated 15.06.2002, the authorities assumes jurisdiction on the basis of involved amount of duty and taxes enunciated in Section 179 ibid and on the basis of invoked sections of the Customs Act, 1969 under Notification No,371(1)/2002. In the instant case the amount of duty and taxes and so the revenue loss to the exchequer is non existent by virtue of the fact that the duty and taxes shown in GD on the declared value comes to Rs,15,509.00 and the case of the said amount falls within the jurisdiction of Assistant Collector of Customs not with the authority issuing show cause notice under Section 179 as was prior to amendment through Finance Act, 2006. Simultaneously, the case in hand is not in evasion instead of importability, duty and taxes on the goods has to be paid by the appellant upon finalization of assessment order under section 80 of the Customs Act, 1969 after laying rest to the issue of importability by the competent authority. The authority to adjudicate such type of cases is Principal Appraiser as evident under Serial No,30 of Notification No,371(I)/2002 and by none else. The respondent No, 1 inspite of clarity in the expression of Section 179, Serial No, 30 of S.R.O. 371(1)/2002 and direction of the Board to adjudicating authorities issued vide letter No, Dy-730-M(L)/2002 dated 15.06.2002 sub-para 2(i) states that "the provision of the relevant laws and the rules must be followed to ensure that the adjudicating officer do not go beyond their mandated authority" and in sub-para (xix) "the adjudicating officer while issuing show cause notice should ensure that the case falls within his jurisdiction and monitory limit as laid down under respective law. Any case decided without jurisdiction is decided against the department by the Appellate Fora" issued show cause notice while usurping the powers of her subordinate in derogation of the provision of Section 179, Serial No, 30 of Notification No, 371(1)/2002 dated 15.06.2002 and direction of the Board dated 15.06.2002. Adherence of these is mandated upon the authority in terms of Section 223 of the Customs Act, 1969. One has to remain within the allotted sphere of the defined jurisdiction. 8. Neither superior nor subordinate are empowered to eclipse the powers of their subordinate/superior while functioning as quasi judicial officers in the course of adjudication proceeding and this has been time and again held by the Superior Judicial Fora in umpteenth reported judgment that it is an element to principle i.e, a mandatory condition for the exercise of jurisdiction by the Port, Tribunal or authority is not B fulfilled as per the express provision of the Act/Rule than the entire proceeding which follows become illegal and suffers from want of jurisdiction/powers. Any order passed in continuation of these proceeding in adjudication or
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appeal equally suffer from illegality and are without jurisdiction. I am flabbergasted to note that the respondent No, 2 intentionally ignored the said fact while passing order-in-Appeal and he also completely ignored the provision of the Act/Rules and the citation relied upon by the appellant, stood validated from the operative part of the order wherein, he summarily brushed aside those in very cursory and wonton manner, further stood validated from para 6 of the order reading as "the arguments advanced by the learned consultant, reproduced at para 3 above do not find any support from the evidence on record and the case law…
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