MUHAMMAD ARIF MOTON (MEMBER JUDICIAL).-This order will dispose off Customs Appeal No. K-630 of 2009 filed by the appellant against Order-in-Appeal No. 2027 of 2009, dated 29-9-2009 passed by the Collector of Customs (Appeals) Karachi.

2. Brief facts of the case are that the appellant electronically filed Good Declaration declared to contain Waste Scrap of Brass at total invoice value of US$. 57,600. The exporter determined his liability for payment of regulatory duty as zero (0%) and sought electronic clearance under section 131(1) of the Customs Act, 1969, through self-assessment under PCT heading under automated system of PaCCS automated procedure. The goods were allowed entry in port area for loading. However, the said GD was marked for checking/examination by the automated Export Risk Management System. The checking reveals that the exporter has deliberately made wrong self-assessment and made deliberate mis-statement and it has been found that "Waste of alloy of Copper & Zinc". (Brass) is correctly classifiable under PCT 7404.0000 and chargeable to regulatory duty @ 25% under S.R.O. 482(I)/2007 dated 9-6-2007. In the light of above checking made under A section 131(1)(c) read with section 80 of the Customs Act, 1969, it is clear that the goods are containing metal scrap mainly containing copper and its kind, thus, the same are correctly classifiable under HS Code 7404.0000 which covers all kinds of copper scrap/waste. By making wrong self assessment under wrong PCT heading the exporter has tried to evade the applicable regulatory duty @ 25 amounting to Rs.982,979.00 which is tantamount to contravention and attract the provision of sections 32, 32A,.131 and Chapter XVIA of the Customs Act, 1969. The exporter has deliberately concealed the actual, facts and made wrong self-assessment of the goods with mala fide intention to defraud the Government from its legitimate revenue amounting to Rs.982,979.00. Subsequent to that the respondent No. 1 (Additional Collector of Customs of Paces) passed order dated 6-12-2008, holding that the appellant mis-declared the description and value. Hence, guilty of offence under section 32 of the Customs Act, 1969, while Observing in Para. 6 that:--

"In the instant case the exporters had filed their GD, with the declaration of physical description as "Waste of Alloy of Copper and Zinc (Brass)" and made self assessment under PCT heading 7312.9010. The exporter claimed release of their consignment for export electronically under PaCCS, without payment of 25% R.D., which was levied under section 18(3) of the Customs Act, 1969, vide S.R.O. 482(I)/2007 dated 9-6-2007. As per Serial No. 2 of Table-I of the said S.R.O. all sorts of scrap of Copper of Chapter 74 are chargeable to 25% R.D, whereas the clearance sought by the exporter under PCT Heading 7312.9010 is not meant for Waste 86 Scrap and infract the said PCT Heading covers Steel Cord. It is, however, pertinent to mention here that when the exporters approached the Hon'ble High Court vide C.P. No. D-1116 of 2008, that the Waste 86 Scrap of Brass is classifiable under PCT heading 7403.0000. This contention of the exporter is also incorrect because the PCT heading 7403.0000 covers Refined Copper and Cooper Alloys. The Chapter 74 covers "Copper and Articles thereof" and waste/scrap of all goods falling under Chapter 74 is classifiable under PCT Heading 7404.0000. The Brass is also a kind of Copper, that is why, it is classifiable under Chapter 74. The exporters contention to classify the goods under PCT Heading 7403.0000 and 7312.9010 is nothing but to hoodwink the Pakistan Customs Computerized System (PaCCS) and to get the goods cleared without payment of 25% R.D., it is clear case of an attempt of evasion of revenue, thus the charge attracting the provisions of sections 32 and 32A of the Customs Act, 1969, stands established. Despite repeated notices no one turned up for hearing and in fact disobeyed honourable High Court order as well probably to make the decision exporter and exploit the same in the next appellate forum. Therefore, a penalty of Rs.500,000.00 (Rupees Five Hundred Thousand Only) is imposed upon the exporters together with enforcement of demand and for payment of leviable R.D of Rs. 9,82,979.00. However as per order dated 8-10-2008 of the honourable High Court the adjudicated amount shall be payable when the remedy available with the First Appellate Authority in terms of section 193 of the Customs Act, 1969, is exhausted by the exporter. Export of this consignment if not done earlier be allowed loading ones regulatory duties and fine is paid and all the codal formalities of export are fulfilled. As such no evidence is provided to the undersigned that the respondent has deposited the leviable regulatory duties, fine and penalties with the Nazar of the honourable High Court. However ones it is confirmed that the deposit is made export be allowed without the payment to the regulatory duties and penalties and deferred till the decision of the 1st appeal."

3. The order was challenged before respondent No. 2 who also vide his order dated 29-9-2009 rejected the appeal by observing that:--

"The proceeding in this case could not be finalized within the stipulated time limit due to adjournments granted on the requests of the parties. Therefore, the requisite extension in the time limit was obtained from the Federal Board of Revenue in terms of first proviso to subsection (3) of section 193-A of the Customs Act, 1969. I have examined the entire case record and given deep consideration to the arguments made before me. On examining the contents of various PCT headings (i.e. 7404.0000 determined by the department and 7403.0000/7312.9010 claimed by the appellants) have come to the conclusion that the goods exported by the appellants (waste of alloy of copper and zinc brass) were correctly classifiable under PCT heading 7404.0000 and, as such chargeable to regulatory duty of 25% of the valve; thereof by virtue of the entry at Serial No. 2 of Table-I to notification S.R.O 482(I)/2007 dated 9-6-2007 which clearly covers "waste and scrap of copper". Clearly, the appellants had attempted to export the goods under an irrelevant PCT heading with the cleat intention of evading the regulatory duty. The appellant' that it is the duty of the customs department to , check PCT classification of the goods is not tenable in view of the changed conditions of import/export and the substantial change in customs law for putting into operation the system of self assessment operative under PaCCS whereby the importer/exporter is required to self-assess his tax liability and make correct declaration in all respects because it is only very few consignments which are subjected to physical examination through the random selectivity criterion fed into the system. Thus, the precedents quoted by the learned consultant are relevant to the facts of the instant case. The other so-called technical issues raised by the learned consultant are aimed at confusing the principal issue and, therefore, carry no weight. Even otherwise the Hon'ble Supreme Court of Pakistan has held in its judgment reported as 2007 PTD 1804 that once substantial compliance of law has been made by the department, technicalities would be liable to be ignored. The penal action taken in this case is also in consonance with the gravity of the offence committed by the appellants. I, therefore, hold that the arguments advanced by the learned consultant do not find any support from the evidence available on record and circumstances of the case. The impugned order is accordingly held to be correct in law and on facts and there is no reason to interfere with the same. The appeal is rejected accordingly.

4. The appellant has now challenged the above order by way of this appeal. The consultant Nadeem Ahmed Mirza appeared on behalf of the appellant who reiterated the arguments incorporated in the memo of the appeal. And emphasized that:---

(a) That the appellant is condemned unheard.

(b) The appeal with the respondent was filed on 3-1-2009 and an order under the proviso of subsection (3) of section 193-A of the Customs Act, 1969. It was mandated upon the respondent No. 2 to issue the decision within 90 days from the date of filing of appeal or within a further extended period of 90 days (luring the initial period of 90 days after serving a notice to the person concerned and thereafter the respondent has to record the reason for extension in writing for the extension of the stipulated period. In the instant ease the order-in-appeal was passed on 29-9-2009 i.e. after the expiry of total stipulated period of 180 clays. Rendering the order-in-appeal barred by time by 88 days.

(c) The narration of respondent Nos. 2 at para 5 of the order-inappeal that proceeding in this case could not be finalized within the stipulated time limit clue to extended hearing and adjournment granted on the request of both parties, therefore the requisite extension in terms of 1st Proviso to subsection (3) of section 193-A of Customs Act, 1969 was obtained from the hoard is without any substance as no adjournment was applied by the appellant or by the respondent No. 1 in written. Hence, the extension granted if any by the hoard is unsubstantiated and without any lawful authority and has to be considered as invalid. Nullifying the stance of the respondent No. 2 that time was extended on the request of both the parties for adjournment. In the light of the narrated facts the order-in-appeal is hopelessly time barred and as such is of no legal effect and can not be enforced. Reliance is placed on the judgments reported vide. 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 and 2009 PTD (Trib.) 1263 Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others and 2009 P'I'D 1978 Leo Enterprises v. President of Pakistan and others.

(d) That the order-in-original passed by the respondent No. 1 is full of contradiction e.g. in para 5 he states that show-cause notice was issued on 25-10-2008, whereas, the show-cause notice was posted on the system on 21-10-2008. In the same para he states that order of the High Court was received on 31-10-2008. Consequent to which hearing was fixed for 25-10-2008 (no communication in the shape of notice or letter was forwarded to appellant as per mandatory requirement of law). Even otherwise, if the order was received on 31-10-2008, the hearing should had been subsequent to that. In the said para the respondent is stating that appellant deposited an amount of Rs. 986,125.00, whereas in the last para of the order he states that no evidence was provided to him regarding deposit of regulatory duty with the Nazir of High Court as against acknowledgement of the certificate issued by the Nazir of High Court on 9-6-2008 at 2:10 PM. The contradictions proves that the respondent is confused and under pressure and the impugned order patently suffered from fearness, neutrality and independence of mind.

(e) The respondent No. 2 incorporated in para 4 of the order submission of the representative of respondent No.1 at his own, as no single argument was advanced by the DR and neither any counter comments were submitted. He only stated that the issue was referred to the MCC of Export for attending the hearing. Since, no body appeared from that side adjournment may be granted. The submission made in para proves prejudice of the respondent No. 2, beside his partiality. Rendering the order as illegal, contrary to the facts and law beside partial, influenced and put a big question on the integrity and fairness of the respondent No. 2 importer makes a correct declaration on the bill of entry". That the respondent while issuing show-cause notice not only mis-read the expression of sections 32 and 32A of the Customs Act, 1969.

(f) That the respondent Collectorate notionally seized appellant goods on 17-5-2008 and as such brought into operation the provision contained in sections 171 and 168(2) of the Customs Act, 1969. Resultant, it was mandated upon the respondent to issue show-cause notice under section 180 to the appellant within a period of 2 months from the date of notional seizure. Non-issuance of show cause notice within the stipulated period, create a vested right in favor of appellant for return/shipment of the seized goods. In the instant case the respondent issued show-cause notice on 21-10-2008 i.e. after expiry of stipulated period of 4 months (initial period of 2 months to be extended by the Collector for further two months after giving notice to the effected person/appellant and subsequently recording the reasons for extending the period). Resultant, the instant show-cause notice is barred by time by 37 days. No action can be taken on a time barred show-cause notice. Reliance is placed on reported judgment of High Courts of Pakistan 1998 MLD 650 Haji Noorul-Haq v. Collector of Customs and others and 2003 PTD 2821 Syed Muhammad Razi v. Collector of Customs (Appraisement) Karachi and 2 others.

(g) That there exist no misdeclaration in any aspects of the goods as the specification was given on the GD as waste and scrap of brass having quantity of 23000 Kgs for US$ 57,500.00. During the examination, it was found as per declaration and the said fact stood verified from the show-cause notice reading as "brass scrap in loose and packed in PP bags comprising of assorted mix broken items, quantity 23000 Kgs and value US$. 57,500.00". In the given circumstance of the case, charge of misdeclaration under section 32 cannot be invoked as by the Board in subpara (b)(i) of para 101 of CGO 12 of 2002 dated 15-6-2002 reading as "where an idea committed a defiance under section 223 ibid. Reliance is being placed on several in field judgments of superior Courts of Pakistan e.g. PLD 1996 Karachi 68 Kamran Industries v. The Collector of Customs Exports and 2003 PTD 2821 Syed Muhammad Razi v. Collector of Customs (Appraisement) Karachi and 2 others.

(h) That terming indicating of erroneous HS Code by the respondent as mis declaration is of no legal effect, by virtue of the fact that to check the description/specification of the imported goods rest on the part of examiner concerned examining the goods under section 198 of the Customs Act, 1969. Whereas to check PCT heading, value, rate of duty and taxes paid amount of duty and taxes rest on the part of scrutinizing Appraiser in terms of sections 25 and 80 of the Customs Act, 1969 read with Chapter II-of the Appraiser Manual, Volume 1, 1973. Whereas, allow of clearance is being allowed by the Principal Appraiser after receiving of confirmation regarding all the aspect from the scrutinizing Appraiser, and in case of mentioning of in correct PCT Heading, it is manifest duty of the scrutinizing Appraiser to correct the same, if it is indicated or mentioned contrary to the declaration or the examined goods and for the said job the scrutinizing Appraiser is deputed for, otherwise there exist no need of a scrutinizing officer and such is the case with the PACCS, wherein the scrutinizing officer checks each and every aspects in the light of examination report, before recommending out of charge to the Principal Appraiser electronically through his allotted personal secret code, which is not known to anyone except him, as per devised procedure of the PACCS.

(i) That it is not out of place to add here that no contravention case can be made out against any importer or exporter on the basis of merely mentioning of erroneous /incorrect HS Code in the bill of entry/GD as held by August Courts of Pakistan in innumerable reported judgment (i) Moixno Industries Ltd., v. Govt. of Pakistan PET. D-199/1984 (ii) Collector v. Central India Board Products 1987 (29) E.L.T. 259 Collector of C.E. v. Chemphar Drugs 1987 (40) E.L.T. 276 (SC) (iv) Central Cotton Mills Ltd., v. Collector 1992 CLC 841 (v) Hindustan Electro Graphites Lid. v. U.O.I. 1990 (50) ELT 15 M.P. (vi) Metro Tryres Ltd., v. Collector 1994 (74) ELT 964 (vii) Ballarpur Industries Ltd., v. U.O.I. 1994 (74) ELT 464 (vii) Ballarpur Industries Ltd. v. U.O.I. 1994 (74) ELT 795 (Del) (viii) Northern Plastics Ltd v. Collector 1998 (101) ELT 549 (S.C) (ix) Ibrahim Textile Mills Limited v. F.O.P. PLD 1989 Lahore 47 (x) Central Board of Revenue v. Jalil Sheep Co. 1987 SCMR 630 (xi) Government of Pakistan v. Quetta Textile Mills Civil Appeal (xii) No. 860-K/90 decided by the Supreme Court on 25-2-1992."

(j) That besides above judgments, the appellant is tempted to place reliance on the reported judgment 2003 PTD (Trib.) 293 of the Customs Excise & Sales Tax Appellate Tribunal in similar nature of case. While relying on the dictum laid by the Superior Courts referred in above, held that:---

"We believe that clearing agents while filing a bill of entry is required to fill the PCT column for the easement and assistance of the Assessing Officer. The perusal of section 80 of the Customs. Act, 1969, indicates that during the process of assessment it is the duty of the Assessing Officer not only to examine the goods but also to tally the description, its weight and value of the goods thereof, and to consider any extra information available on the bill of entry in order to arrive at a correct assessment of duty and taxes. Simply assuming that a wrong PCT heading amount to misdeclaration would not be a correct approach to interpret section 32, where emphasis is on the word "material particular" which means something going to root cause of the basic declaration. To our mind, a misdeclaration in material particulars terms has not been made by the appellant."

In Customs Appeal No. K-333/06 Umme Kulsoom Trading Co. v. Collector of Customs Appeals and others. The Division Bench of Customs Tribunal did observe in the following terms:

"It is gathered from the record that only charge against the appellant is that he misquoted PCT heading for which he is being charged for mis-declaration within the frame work of Customs Law. It is now well-settled law that to constitute a criminal act an element of mens rea and intentional knowledge is necessary and the offending act must be one in which material particulars have been wrongly given or provided to the Customs authorities. It is evident from the record that in the goods declaration all the entries relating to description, quantity and nature of goods were found true and no charge has been framed against the appellant on that count. In such circumstances, alleging a charge of misdeclaration particularly on the basis of wrong classification heading does not constitute an offence within the framework of section 32 of the Customs Act, 1969 as there is no material falsity in the statement made 'by the appellant. In these circumstances, we would like to allow the appeal and set aside the impugned order as no case has been made out against him.

(k) That besides the above arguments with regard to legality of the show cause notice and charges pertaining to misdeclaration, in support of his stance that regulatory duty is not payable by him on the export of waste and scrap of brass. Attention is invited to the Pakistan Custom Tariff, which only incorporate description as Copper-Zinc Base Alloy (Brass) at HS Code 7403.2100 and Master Alloy of Copper as 7405.0000, which is inclusive of Copper and Zinc Alloy known as Brass. Meaning thereby that all products/goods whether new/fresh or old/used or waste and scrap falls .under the said HS Code for levy of duty and taxes, with the exception of unit value, which has to be varied as per physical attributes of the product imported or exported.

(l) The Table I of Notification No.' S.R.O. 482(I)2007, dated 9-6-2007 is without the entire H.S Code No. 74.03 and 7405.0000, brass waste and scraps attracts these, meaning waste and scrap of brass can be exported without regulatory duty. Nevertheless in case of export of 5 fresh items i.e. bars, rods, ingots, slabs and billets made of 22 specified goods in Table-II are dutiable under the said notification with the exclusion of other items thereof and brass is specified at Serial No.11 of Table-II. Whereas HS code 7405.0000 is not specified in any table of the notification.

(m) That in case the legislature desired to levy regulatory duty on the product falling under HS code 7403.0000 and 7405.0000, they would have included the said HS codes in Table-I and Table-II of the notification as has done against the 23 items in Table-I and 22 items in Table-II. That it is mandated upon the field formation to act in accordance with the spirit of expression given in the Pakistan Customs Tariff and directives contained in the notification. "In interpreting the taxing statute, the customs must looks to the words of the statute and interpreted in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax nothing is to be read in, nothing is to be implied. One only look fairly at the language used, nothing else to be done" as held by the High Court and Supreme Court of Pakistan in their reported judgments Abbassi Steel Industries Ltd. v. Collector of Customs 1989 CLC 1463; Crescent Pak Industries (Pvt.) Limited v. Government of Pakistan 1990 PTD 29; Messrs English Biscuit Manufacturers Ltd. v. The Assistant Collector, Central Excises and Land. Customs, Landhi Division, Karachi 1991 PTD 178; Kohinoor Textile v. Federation of Pakistan 2002 PTD 121; Messrs Nadeem Electronics (Pvt.) Ltd. v. Collector of Customs, Central Excise and Sales Tax 1999 PTD 1912; Cape Brandy Syndicate v. I.R. (1921) 1 KB 76; Canadian Eagle Oil Co. Ltd. v. The King 27. TC 205; Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax 1971 PTD 200; Muhammad Amir Khan v. Controller of Estate Duty, Government of Pakistan PLD 1962 SC 335 and A. Ghafoor v. The State PLD 1965 Quetta 10; Messrs Hashwani Hotels Limited. v. Government of Pakistan and 5 others 2004 PTD 901; Bechu Bai F.E. Dinshaw, Karachi v. Commissioner of Income Tax 1967 PTD 170; S.G. Mercantile Corporation (P.) Ltd. v. Commissioner Income Tax, Calcutta (1972) 83 ITR 700; Commission of Income Tax Madras v. The Madras Cricket Club (1934) 11 ITR 209;. Bellygunge Bank Ltd., Calcutta v. Commissioner of Income tax Bengal (1946) 14 ITR 409; The Comtpercial Properties Ltd. The Commissioner of Income Tax, Bengal (1928) 3 ITR 23; Additional Commissioner of Income Tax, Bihar v. Lawlys Enterprises (P.) Ltd. (1975) 100 ITR 369; Commissioner of Income Tax, Lucknow v. Chandra Agro (P.) Ltd. (1979) 117 ITR 251; Commissioner of Income Tax, Poona v. Alpana Talkies (1983) 139 ITR 1055 and Messrs Mehran Associates Ltd. v. The Commissioner of Income Tax, Karachi 1993 SCMR 274.

(n) That by virtue of indication of brass under separate HS Code 7403.2100 reading as copper-zinc base alloys (brass) and in 7405.0000 (master alloy of copper) in Pakistan Customs Tariff. The waste and scrap of brass (alloy of copper and zinc) falls within any of the referred in above HS Codes, therefore the goods exported by the appellant cannot be considered/termed as waste and scrap of copper attracting HS Code 7404.0000 by any stretch of imagination for squeezing duty and taxes, which are otherwise not leviable under any Table of S.R.O. 482(I)/2007 dated 9-6-2007.

(o) That the impugned orders of the respondents are also discriminatory and violative of the principle of natural justice/mandatory provision of law due to the reason that in the case of appellant the respondent Collectorate opted to hold the consignment and subsequently framed contravention report for adjudication purpose as against the identical and similar consignments of other exporter and appellant corresponding to CR No.E-G-630120-020508, E-G-635679070508, E-G-639250-100508 and E-G-675589- 130608, wherein declared waste and scrap of brass, scrap of brass and waste and alloy of Copper and Zinc (Brass) under HS Code 7312.9010 and 7405.0000 were allowed shipment/clearance without any hitch or hindrance and even recourse to any objection or adjudication proceeding

(p) The differential treatment given to the appellant is in violation of Article 25 of the Constitution as well as ruling of the Superior Courts delivered in umpteen numbers of judgments few of which are enumerated here-in-below. Wherein their lordship held with clarity that there is no power to target incident of tax in such a way that similarly placed persons are dealt with discrimination or facility allowed to one and denied to other, amounts to discrimination.

(a) Messrs, Zaman Cement Company (Pvt.) Ltd v. C.B.R. 2002 SCMR P. 312

(b) Pakistan v. Messrs Muhammad Saleem PLD 1995 SC 396

(c) Messrs Gatron Industries Ltd v. Pakistan 1990 SCMR P. 1072

(d) Pakistan Messrs Azhar Brothers Ltd. 1990 SCMR P. 10)59

(e) Commissioner v. Makhdoom Syed Hussain Shah 1975 SCMR 352

(f) Collector v. Messrs Novartis Pakistan Ltd., 2002 PTD 976

(g) Messrs M.Y. Electronics 1998 SCMR P.1404

(h) Messrs Elahi Cotton Mills Ltd., v. Pakistan PLD 1997 SC 582

(i) Messrs Sandalbar Enterprises v. C.B.R. PLD 1997 SC 334

(j) Messrs Flying Craft Paper Ltd., v. C.B.R. 1997 SCMR P. 1874

(k) Government of Pakistan v. Village Development Organization 2005 SCMR 492

(l) The appellant carves his right to add any fresh ground at the time of hearing, beside placing any valid incriminating evidence/document.

5. The department representative Mr. Habib-ur-Rehman, Appraiser appeared on behalf of the respondent and their comments on above cited grounds of appeal inter-alia as under:--

"Before makin