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Petitioner: Messrs Yousuf Enterprises, Karachi VS Respondent: The Assistant Director and 3 others
Court Name: Customs Appellate Tribunal Judge(s): Jehanzaib Wahlah Title: Messrs Yousuf Enterprises, Karachi vs The Assistant Director and 3 others Case No.: Custom Appeal No. K-81 of 2018 Date of Judgment:2019-04-20 Reported As: 2020 PTD (Trib.) 1222 Result: Appeal allowed
JUDGMENT
JUDGMENT JEHANZAIB WAHLAH, MEMBER JUDICIAL-III.----Through this common order, I intend to dispose off Appeal bearing No.K-81/2018 directed against the Order-in-Appeal No.866/2017 dated 19.12.2017 passed by Collector of Customs (Appeals), Karachi by upheld the Order-in-Original Nos.549/2016-2017 dated 05.04.2017 passed by Deputy Collector of Customs, (Adjudication-I), Karachi. 2. Briefly facts of the case are that the appellant imported 7 consignments of different stationary items, inclusive of "highlighter pens" falling under PCT heading 9608.2000. Upon receipt of documents transmitted Goods Declaration (GD) under the provision of Section 79(1) of the Customs Act, 1969 and Rule 433 of Sub-Chapter III of Chapter XXI of Custom Rules, 2001 (Rules) with the MCC of PMBQ while claiming exemption under Serial No.12 of Fifth Schedule to the Sales Tax Act, 1990 (STA) and as per pre-requisite deposited upfront duty and taxes, consequent to which GDs were numbered as KPPI-HC-20788, KPPI-HC-33043, KPPI-HC-33670, KPPI- HC-25068, KPPI-HC-26908, KPPI-HC-28740 and KPPI-HC-31154. The Deputy Collector of Customs, Group- VIII, MCC of PMBQ (respondent No.2) and his subordinate after getting the goods examined under Section 198 and Rule 435, allowed clearance of the goods after passing of valid assessment / clearance order under the provision of sections 80 and 83 - and Rules 438 and 442 of the Act / Rules. After lapse of 2 years from the date of clearance the respondent No.1 issued audit observation dated 06.09.2016 with the opinion that highlighters are not pen and as such exemption under Fifth Schedule of the STA was not available and thus resulted into short payment of sales / income tax amounting to Rs.737,052.00/-, which was otherwise payable at standard rates. The consultant of the appellant replied to the audit observation vide dated 20.09.2016 through which he rebutted the opinion in totality in facts and law. The respondent No.1 instead of withdrawing the audit observation being of no substance framed contravention report and forwarded to Collector of Customs, Adjudication--I, who forward same to respondent No.3, who issued show-cause notice dated 06.09.2016
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stating inter alia that as narrated in the contravention report, hence violated the provision of Section 32(1), (2) and (3A) of the Act, sections 3, 6, 7, 7A and 34 of the STA, Chapter X of Sales Tax Special Procedure Rules, 2007 (Special Procedure for payment of Sales Tax by the importer) and Section 148 of the ITO, punishable under clauses (1) and (14) of Section 156(1) of the Act, Section 33(5) of STA and Sections 148 and 182. The consultant, replied the show-cause notice on 22.09.2016, the respondent No.3 without rebutting a single ground taken in the reply passed order on 05.04.2017 and upheld the charges levelled in the show-cause notice and ordered for deposit of short paid amount of taxes of Rs.737052.00/- along with imposed penalty of Rs.70,000.00/- as under: "I have examined case record and considered the arguments put forth during hearing by the department. As stated earlier, despite grant of repeated hearing opportunities, no reply to the show-cause notice was received in the office from the respondents side. Neither did any authorized representative attend any of the several hearing on their behalf. The importer has imported 07 consignments of Highlighter under PCT Heading 9608.2000 by claiming incorrect /inadmissible exemption of serial No.12 of 5th Schedule (Sales Tax) paying sales tax and additional tax @ 0% and income tax @ 5.5 & 6% and made short payment of an amount of duty and taxes i.e. Sales Tax Rs.588,170/- additional sales tax Rs.103,795.00 and income tax Rs.45088/- totaling Rs. 737052/-, therefore, the charges levelled against the importer in show-cause notice stands fully established. The importer is directed to deposit the total evaded amount of duty and taxes amounting to Rs.737052/- , immediately, along with a personal penalty of Rs. 70, 000/- (Rupees Seventy thousand) is also imposed on the importer. Moreover, the importer is also warned to be careful in future, if there is any recurrence in future the importer. and his associates would be dealt by turn action. Further more the assessing staff is required to finalized the assessment of the basis of this order and recover legitimate amount of taxes and penalty imposed. The case is disposed off accordingly." 3. The order passed by respondent No.3 was assailed before respondent No.4 on 28.04.2017 vide Appeal No.Cus/1666/2017/PCA, which was rejected and maintained the order passed by respondent No.3 on the basis of imported grounds, having no nexus either with the facts or grounds of appeal. The paras 6 to 8 are relevant, which he reproduced as below: "I have examined the case and the arguments of both the sides and have given careful consideration to the fact of the case. Admittedly, the pens and ball points pens falling under PT 96.08 includes porous tipped pens and markers and the highlighters" imported by the appellant quality to be, included in the category of porous tipped pen. The respondent department's stance that highlighter are neither markers nor porous tipped pens does not hold grounds as definitions available in number of dictionaries say that highlighter is in fact a type of marker. The Wikipedia defines a highlighter as "a form of marker" used to highlight and cover over existing writing with still leaving the writing readable. GOVERNMENT OF PAKISTAN FEDERAL BOARD OF REVENUE (INLAND REVENUE POLICY WING) . C.No. 3(1 6)ST-L&P/2010(Pt) Islamabad, 19th October 2016. Mr. Naeem Akhter Yousuf Chairman, Messrs Writing Instrument Manufacturer Group of Pakistan (WIMPG) B-54, Mangopir Road, Karachi -- 75700 SUBJECT REQUEST FOR CLARIFICATION IN RESPECT OF SALES TAX EXEMPTION VARIOUS KIND OF PENS AND MARKERS. I am directed to refer to your letter dated 26th July, 2016 and reminder thereto, dated 08th September, 2016 on the subjected cited above. In supersession of Board's Clarification issued vide C. No. 3(16)ST-L&P/2010(Pt) 109623-R , dated 18th August 2016. To M/s. Mark Industry Islamabad, it is hereby clarified that exemption available to "pens and ball pens (PCT Heading 96.08)"under S. No. 97 of Table-I of the Sixth Schedule to the
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Sales Tax Act, 1990 is equally available to "Marker and Porous tipped pen" falling under same PCT heading i.e. 96.08. Sd/- (Zahid Baig) Second Secretary (ST L&P) Thus in the light of SRO 501(1)12013 dated 12.06.2013 and FBR's clarification mentioned above, the pen and ball pen of PCT 96.08 are exempt from Sales Tax. The appellant on the other hand, has been claiming zero rating on import of impugned goods under Fifth Schedule to the Sales Tax Act, 1990 which was not admissible in the light of aforesaid discussion. Thus, the original order is upheld and-appeal is rejected." 4. 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 subsection (4) of Section 194A of the Act has been filed within the stipulated period of 30 days by the respondent No.1, resultant, lost right of cross appeal within the contemplation of subsection (3) of aforesaid section. Ergo, on the date of hearing the representatives of respondent No.1 made an averment that the conduction of audit was correct in fact and law and no exemption under S.No.12 of Fifth Schedule was admissible to the appellant. Resultant, order passed by the respondents Nos.3 and 4 are in consonance with that and as such be maintained. 5. Arguments heard and record perused. Prior to dilating upon other factual and legal aspect of the case, it is of vital importance for me to deliberate on the mechanism / procedure outlined by the legislature in the provision of Section 26A of the Act for conduction of audit of record of importer under section 26(2) of the Act and on the jurisdiction / powers of Directorate General of Post Clearance Audit (PCA) or respondent No.1 in conduction of audit under Section 25 of the STA and Section 177 of the ITO of the Sales Tax / Income Tax collected at import stage by the Clearance Collectorate / respondent No.2 or his subordinate as per the enunciation made in Section 6 .of the STA and Section 148 of the ITO in the absence of their appointments as Officer of Inland Revenue under Section 30 of the STA and Section 228 of the ITO and of respondent No.3 for proceed with the adjudication in derogation of the provision of Section 179 of the Act and in the matter of Sales / Income Tax under the provision of Section 11 of STA and 162(1) of the ITO, in the capacity of officer of customs appointed under Section 3 of the Act. 6. For obtaining answer to the first part of my observation corresponding to mechanism / devised procedure for conduction of audit under Section 26(2) is available in Section 26A of the Act, verbatim of which is of vital importance 26A Conducting the Audit:- (1) the appropriate officer of Customs conducting any audit under this Act shall proceed in the manner as the Board may by rules prescribe. (2) Where any audit or inquiry or investigation is to be conducted for the purpose of ascertaining the correctness of any declaration or documents or statement, for determining the liability of any declaration or document or statement, for determining the liability of any person for duty, taxes fees surcharge fines and penalties, or for ensuring compliance with all other laws administered by the Customs, an appropriate officer of Customs may;- a) Examine, or cause to be examined upon reasonable notice, any record or any statement or declaration or document described in the notice with reasonable specificity, which may be relevant to such audit, inquiry or investigation: b) Summon, by giving a notice and reasonable time,- (i) The person who imported, or exported or transported or stored or held under customs bond, or filed a goods declaration, drawback or refund claim, (ii) Any officer, employee or agent of any person described in clause (a); and (iii) Any person having possession custody or care of records and documents required to be kept under the Act and any other person, as deemed proper, to appear before him at a reasonable time and to produce such records and documents as specified in.
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7. From bare reading of the provision of Section 26A of the Act, it is abundantly clear that the appropriate designated Officer of Customs empowered by the Board for conducting audit of the record of the importer under Section 26(2) is in the manner prescribed by the Board in Rules. To this date no Rules are framed / issued by the Board despite insertion of Section 26A in the Act through Finance Act, 2006, resultant, the audit of an importer accounts / record maintained under the provision of Section 211 and Chapter XI of Act / Rules, has to be conducted by the Officials of Directorate of Post Clearance Audit or respondent No.1 as per the mechanism provided in the Section itself, wherein appropriate officer of Customs is empowered to conduct audit or inquiry or investigation of an importer for the purpose of ascertaining the correctness of any declaration or documents or statement, for determining the veracity of any declaration or document or statement, for determining the liability of any person for duty, taxes, fees, surcharge, A fines and penalties, or for ensuring compliance with all other laws. However, prior to proceeding with the said exercise, the appropriate officer appointed under Section 3DD of the Act for the said purpose and empowered through SRO 500(1)/2009 dated 13.06.2009, which respondent No.1 has to either summon or give a notice and reasonable time to an importer for the conduction of audit and for the said purpose production of accounts and record as per the expression of clause (b) of subsection (2). The first ground of the appellant in memo. of appeal is that the respondent No.1 has not either issued to him any notice be served a summon for the purported exercise of audit despite mandated under law and this lapse renders the audit so conducted which is the root cause of the impugned show-cause notice as of no legal effect. Since, no-notice is annexed with the memo. of appeal, the representative of respondent No.1 was asked to place, the copy of the notice/summon forwarded / served to the appellant, as the copy of the same would had been available with him in the case file. The query was replied in negative, which flabbergasted me and another query was put to him that how the audit was conducted, without asking for the accounts and record of the import, the answer was on the basis of GD available in the data reservoir maintained by PRAL under Rule 110 of Rules, upon this the representative of respondent No.1 was asked to read out the passage available in Section 26A wherein audit of any importer is permitted on the basis of the record available in the CCS Module, to this the answer was given in negative, confirming that audit of the importer accounts/book could only be conducted upon presentation of those after receiving notice/summon to do so. In the absence of that conduction of audit on the basis of the record available on the CCS Reservoir is not permitted as it is settled proposition of law that a thing has to be done as it has been prescribed to be done, in case of doing the same in any other manner render it illegal and as such void and ab-initio and this have been held in countless reported judgments, reference is 2002 PTD 2457 that "the thing should be done as they are required to be done, or not at all". The Apex Court held in judgment PLD 1971 Supreme Court 61 "neglect of plane requirement of an absolute statutory enactment prescribing how something is to be done, would invalidate thing being done in some other manner" and in PLD 1973 Supreme Court 236 "it is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and therefore outside the area within which to law recognizes a privilege to err" then such action amounts to a "usurpation of power warranted by law" and as such an act is a nullity that is to say the result of a purported exercise of authority which has no legal effect whatsoever" in such a case, it is well established that a Superior Court is not bound to give effect to it." The said ratio was maintained, in the case of E.A Avans reported as PLD 1964 SC 536 "where it has been unambiguously and categorically held that if the doing of a thing is made lawful in a manner than doing of that thing in conflict with the manner prescribed will be unlawful." The Hon'ble Apex Court in 2001 SCMR 838 and 2003 SCMR 1505 held that "while considering the impact of violation or non- observance of the method prescribed by law for doing an act in a particular manner or mode, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. The same observation has been made by the Hon'ble Supreme. Court of Pakistan in the Civil Petition filed by Director General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others reported as 2006 SCMR 129 "if the law had prescribed method for doing of a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than
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provided by law would not be permitted". The super structure built on such foundation namely audit observations, show-cause notice and order-in-original no matter how strong those may be have to fall, reference is made to PLD 1996 Karachi 68 which laid down that " where the initial order or notice was void all subsequent preceding, orders or super structure built on it were also void. In reported judgment 2006 PTD 978 it is held that "the entire proceeding initiated by the Adjudicating authority and further. super structure thereon including the order passed by the learned Tribunal are without jurisdiction void and in-operative." The Apex Court in PLD 1971 Supreme Court 184 held that "order of a Tribunal found to be without jurisdiction ---all successive orders based upon it illegal and liable to be quashed". 8. As regards to the second part of my observation available in para 5 supra, I have perused Section 228 of the ITO and found that the respondent No.1 has not been appointed/designated as Officer of Inland Revenue by the legislature, instead under the aforesaid section the Directorate General of Internal Audit has been appointed/designated as D officer of Inland Revenue and for overseeing the collection of withholding Tax, Directorate General of Withholding Taxes has been established under Section 230A of the ITO, meaning thereby that the respondent No.1 is not at all appointed /designated as Officer of Inland Revenue. Resultant neither Directorate General of PCA nor respondent No.1 are empowered to exercise the powers of an Officer of Inland Revenue under Section 207 for conducting audit under Section 177 of the ITO, Rendering the entire act of audit in the matter of Income Tax by the respondent No.2 without powers/jurisdiction and as such coram non judice. Our opinion stood vindicated from the latest reported judgment 2014 PTD 1733 Waseem Ahmed and others v. FOP and another, where it has been field in clear terms that "unless the officer of DGI&I)-FBR are not appointed and an officer of Inland Revenue, powers under the different subsection of the Sales Tax Act, 1990 cannot be delegated through any SRO with that the Hon'ble High Court of Sindh declared Notification No. 775(1)/2011 ultra vires to the Sales Tax Act, 1990". However, Directorate General of PCA / respondent No. 1 are indeed appointed as Officer of Inland Revenue under section 30DD of the STA and Board has delegated powers to the officials through SRO. 42(1)/2010 dated 23.01.2010 under different Sections of the STA in column (4) of SRO, subject to exercise of those under the designation or authorities given in column (3), which are (i) Chief Commissioner/Commissioner Inland Revenue (ii) Additional Commissioner of Inland Revenue (iii) Deputy Commissioner Inland Revenue and (iv) Assistant Commissioner Inland Revenue and not in the capacity or designation of (i) Director General/Director PCA (ii) Additional Director-PCA (iii) Deputy Director-PCA and (iv) Assistant Director-PCA. In the instant case the entire communication including the audit observations and contravention reports were prepared and served in the capacity of Assistant /Deputy Director of PCA, which are non existent in column No.3 of SRO 42(1)/2010 dated 23.01.2010, rendering the same without power/jurisdiction. Hence ab-initio void and coram non judice. Therefore, entire proceeding right from Audit, audit observation, contravention report are of no legal effect. Any super structure built thereon no matter how strong it may be have to crumble down as held by Superior Judicial Fora in umpteenth reported judgment PLD 1971 SC 197 Chittaranjan Cotton Mills Ltd. v. Staff Union, Raunaq Ali's case PLD 1973 SC 236, 2002 PTD (Trib.) 889 in Messrs Unitex Tower Factory v. The Collector of Customs (Appeals) and others, Appeal No. K- 106/03 in Messrs Silver Corporation v. The Additional Collector of Sales Tax (Adjudication), Karachi III, Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 A.L.D. 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 1976 Supreme Court 37 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others. 9. I have also noticed with great concern that the respondent No.3 in the show-cause notice have invoked Sections 3, 6, 7, 33 and 34 of the STA and 148 of the ITO without realizing that Section 3 while indeed being a charging section cannot be invoked by anyone other than an Officer of Inland Revenue whereas Section 6 is contains machinery provision laying down the procedure for collection of Sales Tax as like custom duty at the import stage by the customs authorities hence cannot be used to charge anyone including the appellant for an offence under the said section with the exception of official of Clearance Collectorate, upon whom charge under
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the said section can be invoked. Section 7 speaks about the determination of tax liability at the time of filing of sales tax return cum payment challan under Section 26 of STA, this is also a machinery section. Section 33 contains penal clauses synonymous to Section 156(1) of the Act and Section 34 speaks about imposition of default surcharge, to be paid by the tax payer upon confirmation of the charges levelled in the show-cause notice issued by the officer of the Inland Revenue under the respective Section of the STA. Section 148 of the ITO is also a section containing machinery provision akin to Section 6 of the STA , empowering custom authorities to collect levied income tax alike custom duty on the imported goods. "Provision which provides a mechanism/mode of collection are not to be construed as charging provisions even through inapt interpretation as it could neither abridge nor expand the scope of a charging section in an Act/Ordinance". Reference is made to the decision of Hon'ble Supreme Court of Pakistan in 2019 SCMR 282 Pakistan Television Corporation, Ltd., v. Commissioner Inland Revenue (Legal), LTU, Islamabad and others.. Resultant, the aforesaid deliberated sections are independent and cannot be used to invoke a charge. Since, these sections are irrelevant / erroneous in the matter of customs, no show-cause notice can be issued by a custom officer under these section, render the issued show-cause notice and passed order-in-original palpably illegal and as such void and ab-initio as held in the following reported judgments: 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. Collector1992 SCMR 1898, Rose Color v. Chairman, CBR (sic) and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs. 10. In order to further crystallize, the issue relating to recovery of short paid sales tax and income tax, I was indebted to peruse Section 30 of STA and Section 228 of the ITO and have observed that the legislature appoints under the said Sections different organs of the FBR as Officer of Inland Revenue for exercising powers under the respective Sections of the Act/Ordinance, delegated through statutory notifications or under Section 207 of the ITO. In these Sections respondent No.3 figures anywhere nor in charging section 11 of the STA or Section 162(1) of the ITO. Therefore, the respondent No.3 under no circumstances was empowered to lay hands on the matter falling within the ambit of sections 3, 6, 7A and 11 of the STA and Section 162(1) of the ITO. These sections least empowers the Officers of Customs including the 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 for these type of recovery a show-cause notice has to be issued under the Provision of Section 11 of the. STA and Section 162(1) of the ITO, the authority to issue show-cause notice under these Sections are Officer of Inland Revenue and the Commissioner of Income Tax, in these sections respondent No. 3 least figures anywhere. 11. In order to lend clarity expression of Section 11 of the STA and Section 162(1) of the ITO are referred, which empowered the Officer of Inland Revenue and Commissioner of Income Tax to initiate adjudication / recovery proceedings for the short collected / paid, Sales Tax and Income Tax either due to collusion or connivance or inadvertent, error or misconstruction. Respondent No 3 figures no where in these sections. He assumed the power not vested with him under the provision of Sections 11 and 162(1) of -the STA and ITO. Therefore, I hold without any reservation that…
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