JEHANZAIB WAHLAH, MEMBER JUDICIAL-III:---

Through this order, I intend to dispose off Appeal No. K-939/2016 directed against the Order-in-Appeal No. 127/2016 dated 23.02.2016 passed by Collector of Customs (Appeals), Karachi.

2. Briefly fact of the case are that the appellant imported a consignment of 10240 kgs of transparent plastic empty boxes with lid in assorted sizes @ US$ 0.80/kg, upon receipt of shipping documents appellant transmitted Goods Declaration (GD) under Section 79(1) of the Customs Act, 1969 and Rule 433 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 and as per pre-requisite for availing the regime of Customs Computerized System deposited upfront duty and taxes vide cash No.C-KCSI-000370-02012013 with the NBP, consequent to which the GD was numbered as KCSI-HC-87302-02012013. The consignment was thereafter, selected for conduction of examination under 198 and Rule 435 of the Act/Rules, wherein declaration was confirmed to the extent of all aspects, report so prepared was uploaded in the reservoir of GD. Upon receipt of which the assessing officer passed assessment order dated 07.01.2013 under the provision of Section 80 and Rule 438, while doing so he changed the PCT heading as 3924.9000 as against declared 3923.1000 and with the application of Valuation Ruling. No.274/2010 ibid. Being aggrieved appellant filed first review under Rule 441 before the Principal Appraiser, who upheld the same, consequent to which second review was filed before respondent No. 1, who accepted the contention of the appellant and passed assessment order under the aforesaid of the provision of the Act/Rule i.e. accepting the declaration in regards to PCT heading and value, consequent to which the inbuilt authority of the CCS passed clearance order under the provision of section 83 and Rule 442 ibid, the appellant accordingly obtained the delivery from the terminal on 07.11.2015, when appellant logged CCS, he was confronted with the view message popping on his home page for payment of Rs.309,033/- towards duty and taxes and penalty of Rs. 115,640/- for late payment (total of which comes to Rs.424,673/-) the message appearing on the home page was in the format reproduced here- in-under:
 

Since, the said view message by all mean a demand notice under the provision of section 202 of the Act and that also in isolation, without crystallization of the demand of short paid amount through a valid order after due process of law, appellant prefer appeal before respondent No.2 on the strength of the view message, the respondent No.2 without touching the merit of the case, rejected the appeal summarily by terming the same as barred by time. The relevant para is reproduced as under:

3- I have examined the case record. The appellant goods were finally assessed on 08.02.2013, as per assessment note retrieved from the system. There is no further change in the assessment seen in the notes. The appellants have filed this appeal on the basis of computer print GD taken after a time lag of two years and nine months. The departmental representative stated that, gt; they have not issued any fresh assessment order or view message for recovery. The impugned GD was assessed two year ago. The departmental representative also deny the generation or issuance of the impugned print out. I, therefore, hold that appeal after a huge time lag is not entertainable The documents presented by appellant is not a re-assessment order or even an order under Section 80 of the Customs Act, 1969. Therefore no appeal lies against the same under Section 193 of the Customs Act, 1969. The appellants are not aggrieved person, the appeal is not sustainable, therefore dismissed.

3. The appellant filed the appeal - on the basis of grounds enumerated therein, the consultant 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 or not even to date by the respondent No. 1. However, the representative of the respondent No. 1 vehemently defended the passed reassessment order and appeal by respondents and prayed for maintenance of those, irrespective of apparent deficiencies /illegality.

4. Rival parties heard and case records perused and so the relied upon citations, on the strength of which following issues are framed for decision:

(i) Whether appeal filed before respondent No. 2 by the appellant on the strength of GD containing assessment order under Section 80 and Rule 438 of the Act/Rules and view message showing amount of duty and taxes to be paid by the appellant in addition to penalty on late payment are deems to be in order, for filing appeal under the provision of Section 193 of the Act and appellant was competent to assail the vires of those before respondent No.2?

(ii) Whether respondent No. 2 was in his right to reject it on the basis of limitation, without evaluating the circumstances in which reassessment order was passed for creating recovery in isolation by the authority not empowered under the provision of Section 32(3) of the Act and Serial No. 3(ii) of SRO 371(I)/2002 dated 15.06.2002?

(iii) Whether respondent No. 1 is empowered to reassess the GD under Section 80(3) of the Act, in derogation of the expression of Section 3DD ibid, SRO No. 500(I)/2009 dated 13.06.2009 and Section 193 ibid?

(iv) Whether reassessment by respondent No. 1 was made strictly as per the spirit of Sections 80(2) and (3) of the Act?

(v) Whether recovery can be created in isolation through a view message without issuance of show-cause notice despite of clear expression enunciated in Section 132(3) of the Act and whether respondent No. 1 was empowered in passing order for creating recovery under section 32(3) of the Act to be read with Serial No. 3(ii) of SRO No. 371(I)/2002 dated 15.06.2002?

(vi) Whether respondent No. 1 was empowered to amend the GD under Section 205 despite bar laid in Section 29 of the Act after out of charge of the goods and delivery of those to the appellant?

(vii) Whether the respondent No. 1 was empowered to create recovery of Sales Tax and Income Tax under Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001?

5. As regard to issue No.(i), Upon perusal of the order passed by respondent No.2 it has been observed that he rejected the appeal on the basis of formed opinion that respondent No. 1 has not passed any reassessment order after out of charge of the goods, instead the order passed on 08.02.2013 was in fact an assessment order under Section 80(3) prior to passing of clearance order under the provision of Section 83 and Rule 442 on the strength of assessment order under the provision of Section 80(1) and Rule 438 of the Act/Rules by respondent No. 1 and appeal before him was preferred by the appellant on the basis of GD and view message is not valid/competent as per the contemplation of Section 193(1) ibid., and on the denial of the representative of respondent No. 1 that no view message either for payment of any amount of duty and taxes and penalty was generated and posted on the home page of the appellant. For reaching at a just decision, the representative of respondent No. 1 was asked to supply the assessment sheet/note of the consignment in question, inclusive of log sheet and confirmation to the effect that when the consignment was out of charged after passing clearance order under the provision of Section 83 and Rule 442 of the Act, which were supplied, upon examination of the assessment sheet is transpired that 1st assessment was done by the assessing officer on 07.01.2013 through which he changed the PCT and applied valuation ruling for levy of duty and taxes, evident from adduced remarks reading as 3924.9000 / plastic house hold items/ware/S.No.25-A-274/06.10.2010/China/3.42VR goods are Malaysia origin. The said assessment was challenged before Principal Appraiser through review in terms of Rule 441 of the Rules, who rejected that while adducing remarks dated 09.01.2013 upheld, against which appellant filed 2nd review before respondent No. 1, who accepted the contention of the appellant in regards for PCT Heading and value and modified the assessment order on 09.01.2013 while inscribing Review vide KCSI/HC-64395-15.11.2012, consequent to which appellant obtained the delivery from the terminal Subsequently, on 08.02.2013 respondent No. 1 amended columns 44, 45 and 47 of the GD i.e. US $ 14,336/-, Rs. 1,420,005/- and Rs.709150/- as against appearing in GD US$ 8192/-, Rs.81132/- and Rs.405,229/- respectively, through reassessment order under the provision of Section 80(3) of the Act, while subscribing in the note sheet As per criteria and instruction of Collector MCC PaCCS regarding subject item On the strength of which posted view message for payment of Rs.424,673/- i.e. Rs.309,033/- towards duty and taxes and Rs. 115,640/- towards penalty for late payment on the home page of the appellant. The question arise that whether view message falls under the ambit of order, definition available in Black Law Dictionary Sixth Edition was perused, which says that an order means command, direction or instruction. Whereas, the word order has been defined in PLD 1986 Lah. 237 as ¦¦¦ the word ˜order is not being a term of art has no fixed legal meaning. According to Prem˜s Judicial Dictionary, it covers commands or directions that something shall be done....the term order in general is comprehensive enough to include all kinds of order including a formal order. The examination of the view message confirms that it contains command and direction for the appellant for payment of duty and taxes and penalty for late payment, despite being formal. Therefore, it is by all means falls within the definition of an order and vires of the same could be challenged before respondent No.2 under the provision of Section 193(1) of the Act without any exception. Hence, appeal was validly filed by the appellant before the respondent No.2 for decision strictly in accordance with its expression of Section 193(1) reading as any person including an officer of customs aggrieved by any decision or order passed under Sections 33, 79, 80 and 179 by an officer of Customs, below the rank of Additional Collector may prefer appeal to the Collector (Appeal). Whereas, for confirmation of the veracity of the statement made by the representative of respondent No. 1 before the respondent No.2 that no view message was prepared/posted on the home page of appellant for generating recovery against the appellant, he was confronted that if the same was not generated or posted, from where it was obtained by the appellant, he was completely mum and has no answer, conversely the consultant of the appellant validated the veracity of the view message by submitting multiple view messages posted by respondent No. 1 on his home page todate i.e. on 18.03.2016, 02.06.2016, 15.06.2016, 22.08.2016, 21.10.2016, 25.11.2016 and 03.01.2018, wherein the amount of duty and taxes remained the same with the exception of penalty for late payment which increased gradually in view message i.e. Rs.131,027/-, Rs. 139,887/-, Rs. 143,034/-, Rs. 149,329/-, Rs. 156324/-, Rs. 160,404/- and Rs.250,048/- as against view message dated 07.11.2015 Rs. 115,640/-. These left the representative of the respondents speechless. Therefore, I am led to conclude in unequivocal terms that view message on the strength of which instant appeal was filed by the appellant before the respondent No.2 was prepared /generated and posted on the home page of the appellant by respondent No. 1 akin to the view messages generated/posted subsequently on the dates referred here-in- above by the respondent No. 1. The issue No. (i) is answered in affirmative.

6. As regard to issue No. (ii), the clearance of the consignment in the instant case has been made under the regime of CCS by the competent authority defined in Section 2(a) of the Act after passing of valid/legal appealable assessment/clearance order in exercise of the powers vested upon him through SRO 371(I)/2002 dated 15.06.2002, under the provision of Sections 80 and 83 and Rules 438 and 442 of the Act/Rules, consequent to which the appellant obtained delivery from the terminal. Any correspondence under the said regime has to be transmitted online without any exception. In case of contravention or short payment, even show cause is transmitted online and reply to that is pasted by the importer in the space allotted in the said module as Trader Reply and order so passed by the adjudicating authority is also transmitted online in consonance with the Section 155Q and Rule 546 of the Act/Rules prior to passing of clearance order. However, in case any contravention is framed after clearance on the strength of audit of the record of the importer by the Directorate General of Post Clearance Audit (DGPCA) or by any other allied department of the FBR, contravention report and connected show cause notice and order-in- original are issued/passed by the competent authorities manually as the software of CCS lacks the such facility after clearance of the goods. The importers (appellant) invariably log in software of CCS, when they/he imports consignments and transmit GD for home consumption under the provision of Section 79(1) and Rule 433 of the Act/Rules and keep tracking the status of the GD for payment of additional duty and taxes if any after passing of assessment order under Section 80 and Rule 438 and subsequently passing of clearance order by the defined authority under the provision of Section 83 and Rule 442 of the Act/Rules. Thereafter seldom log in for knowing or having information of the already cleared consignments, being passed and closed transaction if in any case the logged in and saw message popping on their home page corresponding to the already cleared consignment. Importers invariably ignore those as the goods had already been cleared and no clearance had to be obtained by him, hence payment of duty and taxes least exist. Instead of completing assessment vigilantly at the time when the goods were at the terminal and under clearance, the Officer of Customs/respondent No. 1 have made a habit to reassess the GDs at the back of the importer/appellants for creating recovery and they keep those as guarded secret, till the time the importer/appellant transmit GD with the Collectorate against their consignment arrived at the terminals and then pressurized them to pay the recovery created by them in isolation, then the importer/appellant came to know about the same and files appeal after retrieving the reassessment order before the respondent / No.2. Although the entire exercise carried out by the Officer of Customs and the respondent No. 1 is without lawful authority and as such of no legal effect. It was mandated upon him to intimate in regards to passing of reassessment order and creating of recovery manually in accordance with the adopted procedure or framing contravention report and issuance/passing of show case notices/order-in-original after clearance of the goods through CCS regime as enunciated in Section 215 of the Act that Service of Order, decision, etc. shall be served (a) by tendering the order, decision, summon or notice or by sending vide registered post or the courier service or by any other mode of transmission subject to acknowledgment receipt to the person for whom it is intended or to his agent or (b) if the order, decision, summon or notice cannot be served in any manner provided in clause (a), by affixing it on the notice board of the Custom House, for making the service good/valid and enabling the importers / appellant to avail the remedy under the provision of Section 193 or 194A of the Act. To the contrary, the aim of the Officers of Customs including Respondent No. 1 keeps the importers/appellant in dark, for snatching the right of appeal and making the created recovery good/valid, despite having no warrant of law.

7. Upon perusal of the view message dated 07.11.2015, I have observed that despite mandated under law, and as per the contemplation of Sections 155Q and 215 of the Act ordered/commanded the appellant to pay an amount of Rs.309,033/- towards duty and taxes along with penalty for late payment amounting to Rs. 115640/- against the GD, goods of which has already been out of charge on 09.01.2013. The appellant upon having knowledge retrieved that and challenged the vires of that before respondent No.2, which was acknowledged on 17.11.2015 for regular hearing without any objection of even time barred evident from the affixed stamp on the memo, of appeal. Hence, it was mandated upon respondent No.2 to decide the appeal on merit. The said act of his would had been just and in consonance with the Article 10A (Fair Trial) of the Constitution of Islamic Republic of Pakistan. Even otherwise, it is principal of law that Appellate Authority have to examine the reason for delay sympathetically when admittedly registered person was proceeded ex parte during the adjudication proceeding, as held by ITAPTP in reported judgment 2010 PTD (Trib.) 1491, the case of the appellant is on the same footing as reassessment order was passed by respondent No. 1 ex parte and in isolation without adherence of due process of law. Likewise in 2010 PTD (Trib.) 1359 it has been held that Collector was bound to have condoned such delay for the sake of justice and fair play and in 2012 PTD (Trib.) 637, it has been held that the rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and, unless they are un-surmountable; ends of justice always out way the manner of practice and procedure. In the same judgment further held that there is no doubt that the appeal filed before the First Appellate Forum was time barred by 127 days yet the higher Court has repeatedly held that the cases should be decided on merit instead on technical grounds and technicalities of law and fact should always be avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done. The respondent No. 2 in fact abused vested discretionary powers, which are to be invariably exercised for the benefit of tax payer and that also without evaluating the fact that the registered person/importer does not stand to gain, neither any thing nor a delay on his part give rise to or create a valuable right in favour of the Revenue-department and the judiciary is respected not on account of its power to legalized injustice under the garb of technicalities, but because, it is capable of removing injustice and the tax payer being citizen of Pakistan has a right under its Constitution to expect so. Whereas, the Honble Lahore High Court held in reported judgment 2002 PTD 549 Laser Praxis Deplix Clinic Lahore v. Customs Central Excise and Sales Tax Appellate Tribunal held that delay in filing appeal of the litigant has to be condoned on the strength of the observation made in Controller of Land Acquisition v. Mst. Katiji and others [1987] 56 Tax 130 (S.C. India) by Mr. M.P. Thakkar, J. Speaking for the Court favoured adjusted oriented approach by finding that (i) A litigant does not stands to benefit by lodging an appeal late, (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and 1 cause of justice being defeated. As against this, when delay is condoned, the highest that can happened is that a cause would be decided on merits after hearing the parties, (iii) Every days delay must be explained does not means that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense and programmatic manner, (iv) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice reserved to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay, (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides a litigant does not stand to benefit by resorting to delay infact he runs a serious risk, (vi) It must be grasped that judiciary is respected not on account of its powers to legalized un-justice on technical ground but because it is capable of removing un-justice and is expected to do so The respondent No. 2 through rejection of appeals of the appellants as time-barred, not only gave harsh and unjust treatment. Instead, additionally gave differential treatment, which is tantamount to discrimination and barred under Articles 4 and 25 of the Constitution despite standing on the same pedestal as other importers, whose appeals were decided on merit, without touching the aspect of limitation, validating that he has no urge, will, passion and ability to decide the case/dispute put before him on merit.

8. The respondent No. 2 intentionally and willfully also ignored the settled principle of law by the Superior Judicial fora that no limitations runs against ab-initio void order, despite admitted and apparent position that the recovery was created in isolation without issuance of show-cause notice under Section 180 as contemplated in Section 32(3) of the Act and in usurpation of the powers delegated to the authority under the said provision of Act through clause 3(ii) of SRO 371(I)/2002 dated 15.06.2002, namely Principal Appraiser. These vital defects available in the reassessment order, render it palpably illegal and a such ab-initio, null and void, no limitation runs against such types of orders, litigant is entitled to challenge the vires of such types of orders immediately upon having the knowledge, which appellant did. I have arrived on the said opinion, while driving assistance from reported judgment 1986 SCMR 962 Rehmat Bibi and others v. Punno Khan and others, 1996 SCMR 2296 Syed Haji Abdul Wahid and another v, Syed Sirajuddin and PLD 1976 Supreme Court 37 Ali Muhammad v. Hussain Bux and another, wherein, the Honble Judges of the Supreme Court of Pakistan On the question of limitation, referred to a number of decision of Apex Court and held that if an order is without jurisdiction and void then it needs not to be formally set aside. In Yousuf Ali v. Muhammad Aslam Zia and others in reported judgment PLD 1958 SC (Pak) 104 (1) it was said by this Court Where the legislature clothes an order with finality, it always assume that the order which it declares to be final is within the power of the authority making it and no party can plead as final and order made in excess of powers of the authority making it, in the eyes of law, such order being void and non existent. In PLD 1965 SC 68 Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (2) it was said that an order without jurisdiction is a nullity in law and it does not require to be set aside formally. Again in PLD 1967 SC 294 Syed Ali Abbass and others v. Vishan Singh and others (3) it was observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalized for not throwing himself again by way of revision or review on the mercy of the authority who were responsible for such excess this being the rule firmly established, the dismissal of writ petition by the learned single judge on finding that the appeal before the Additional Settlement Commissioner was barred by time and in dismissing it he had acted with jurisdiction was not warranted in law. The Honble High Court of Sindh in adherence of the ratio decidendi held in reported judgment 2002 PTD 87 FOP v. Metropolitan Steel Corporation held that when a Court or a Tribunal assume jurisdiction not vested, its order is void and nullity to law and no limitation runs against a void order Hence, now its a legal fiction that no limitation runs against a void and ab-initio order without any exception, akin to the reassessment order passed in the appellant case without lawful authority/jurisdiction. Hence, not enforceable under law and as such, ab-initio, null and void / coram non judice. The issue No.(ii) is answered in negative.

9. As regard to issue No. (iii), the legislature has inserted section 3DD in the Act through which Directorate General of Post Clearance Audit (DGPCA) has been created and its officials have been delegated powers through SRO No.500(I)/2009 dated 13.06.2009 for conducting audit under section 26(2) of the importer books of account maintained under Section 211 of the Act, after serving notice or summon under the provision of Section 26A of the Act, which includes every aspects of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 and Rule 438 of Act/Rules and prepare audit observation and forward to the importer for clarification and if the reply fail to settle the issue, frames contravention report and forward it to the Clearance Collectorate which onward forward to the respective Collectorate of Customs Adjudication for issuance of show-cause notice under section 180 of the Act, and passing of order-in-original as per the expression of Section 179 ibid. The respondent No. 1 assumed the powers of officials of DGPCA and conducted the Audit Post Clearance of the GD of the appellant under section 26(2) while exercising the powers specifically delegated to the officials of the DGPCA. Neither he nor his Higher officials are empowered to encroach the sovereign jurisdiction of DGPCA under any circumstances as this will render the formation of DGPCA by the legislature under Section 3DD of the Act and the powers delegated under SRO No.500(I)/2009 dated 13.06.2009 as redundant. I have observed with concern that the respondent No. 1 and his higher officials are running a parallel department to the DGPCA in derogation of Section 3DD ibid. This is not permitted under law, by virtue of the fact that if it is left to be perpetuated, anarchy will prevail within the different organs of FBR to encroach powers/jurisdiction of each other, despite having no lawful authority/jurisdiction. This type of intention/act cannot be validated under any circumstances and has to be crushed in the initial stages for maintaining the ˜integrity and sanctity of the different sovereign organs of FBR. Therefore, the re-assessment made by the respondent No. 1 of the Goods Declaration of the appellant after clearance amounts to conduction of audit under section 26(2), to which he is not empowered, rendering his act without power/jurisdiction as such void and ab-initio and coram non judice.

10. Upon passing of assessment order under section 80 and Rule 438 of the Act/Rules, and thereafter passing of clearance order under Section 83 and Rule 442 ibid by the authority defined in section 2(a) of the Act, SR0.371(I)/2001 dated 15.06.2001, it cannot be disturbed by any authority for the purpose of re-assessment, preparing contravention report and adjudication proceedings. The only course left for the respondent No. 1 was to challenge the said order before the Collector of Customs (Appeals) under section 193 of the Act which empowers an officer of customs below the rank of Additional Collector to file an appeal and in that he could incorporate all of his apprehensions, misreading of the facts and contravention of the provision of the Act/Rules. The Collector of Customs, upon receipt of the appeal and after going, through the facts and grounds, if thinks fit that the contention of the respondent No. 1 seems to be correct and the duty and taxes has not been either not levied or short paid on the basis of the goods assessed earlier for clearance, is empowered to issue show-cause notice under section 32 ibid to the respondent (importer) as expressed in 3rd proviso to the subsection (3) of Section 193A of the Act. Instead of the prescribed method the respondent No. 1 reopened the assessment/clearance order under section 195 of the Act, under which powers are either vested with the Board or the Collector of Customs. Even otherwise, when the right of appeal has been accorded by the legislature in the provision of Section 193 of the Act, the provision of Section 195 is un-operational and cannot be exercised even by the authority defined therein and this has been validated by the Honble High Court of Sindh in reported judgment 2014 PTD 1256 Messrs Paramount International (Pvt.) Ltd., Karachi v. Secretary Revenue Division that department or an officer of customs if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal) -1st order in original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass, under the adjudication hierarchy was not available to the Collector. Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set-aside and Constitution Petition was allowed. In the instant case no appeal has been filed against the assessment order passed by Principal Appraiser dated 04.11.2013 within the stipulated period of 30 days resultant, it attain finality and cannot be disturbed being a past and closed transaction. Therefore, the act and commission of respondent No. 1 is also in derogation of sections 193 and 195 of the Act, and as such of no legal effect, hence coram non judice. Therefore, I answer to issue No.(iii) in negative.

11. As regard issue No. (iv), it is beneficial to reproduce Section 80(2) and (3) of the:

(2) An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of the Customs;

(3) if during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment, the goods, shall, without prejudiced to any other action which may be taken under this Act be reassess to duty.

Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), unless subsection (2) is not complied in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re-assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in Section (2) ibid. Upon receipt of documents or the information so transmitted submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessment. Upon perusal of the import documents, examination report and assessment order by appellant/passed by Appraiser, it has been observed that description and quantity are the same as declared as evident from examination report, on the strength of which respondent No. 1 passed assessment order dated 09.01.2013 while observing in assessment note ˜˜Reviewed vide KCSI/HC-64395- 15.11.2012. No visible mis-declaration in any aspect has either been made by the appellant in material particular nor any illegality has been committed by the respondent No. 1. In the instant case no re-assessment was warranted under Section 80(3) of the Act. Even otherwise, the remarks of the Respondent No. 1 also speaks volumes about playing havoc with the provision of subsection (3) of Section 80 of the Customs Act, 1969 and which reads as remarks As per criteria and instruction of Collector MCC PaCCS regarding subject item. I failed to digest the mode and manner through which criteria has been devised and under which authority Collector derived powers, for issuing orders to the field formation to pass reassessment order under the provision of Section 80(3) of the Act, despite figuring no where in the provision of Sections 25, 80 of the Act and SRO 371(I)/2002 dated 15.06.2002 and Section 179 ibid and 223, which bars the Board from issuing any order/instruction/direction to the adjudicating authority. Hence, it was not mandated upon respondent No. 1 to comply with the order of the Collector having no warrant of law being nullity to the provision of Sections 80, 179, 193, 195 and 223 of the Act. He has to act independently without any influence and no authority can direct him to act contrary to the law. It is also amazing to note that how the Respondent No. 1 reassessed the goods under Section 80 of the Act despite not being an Appropriate Officer under Section 80 to be read with SRO. 371(I)/2002 dated 15.06.2002. However, the appropriate Officer is indeed empowered to re-assess the GD in case the called documents are proved to be false and so the declaration transmitted under Section 79(1) of the Act 1969 and Rule 433 ibid after clearance of the goods but not in the absence of the basic ingredient defined in Section 80(2) and (3) ibid. The issue No. (iv) is answered in negative.

12. As regard to issue No. (v), upon passing of assessment order dated 09.01.2013 by the respondent No. 1 validating the declaration of the appellant in all aspects, the inbuilt authority of CCS passed clearance order under Section 83 and Rule 442 of the Act/Rules and view message to the said effect was transmitted on even date reading as GD: KCSI- HC-87302-02012013 has been sent to gate staff for gate out.. Consequent to which the appellant clearing agent obtained the delivery on the same date. After lapse of about one (01) month the respondent No. 1 generated and posted view message for payment of amount of duty and taxes and penalty for late payment, this view message is by all mean is creation of recovery, obviously on the strength of reassessment order under Section 80(3) sans transmitting of view message, which would had invariably contain the direction to the appellant reading as B/L No. KHIGP-12120079-01 dated 19-12-2012 has been sent to cashier for payment. You are requested to pay Rs. 309,033.00/-, when infact the act of clearance stands concluded on 09.01.2013. This view message after post clearance is by all means falls within the definition of demand notice for recovery of short paid amount of duty and taxes due to commission of inadvertence by the Officials of Clearance Collectorate. Such type of recovery can only be created upon passing of an order after issuance of show-cause notice under Section 32(3) of the Act, expression of which read as:

Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice.

In the instant case no show-cause notice has been issued despite mandated under law, issuance of show-cause notice is pre-requisite and cannot be dispense with under any circumstances. While creating recovery through view message the respondent No. 1, infact committed violation of the provision of Section 32(3) of the and principle of natural justice rendering the recovery so created without any lawful authority and as such void and ab-initio in the light of reported judgment referred by the appellant in grounds of memo of appeal and the reported judgment 2006 PTD 978 Forte Pakistan (Pvt.) Ltd., Karachi v. The Director General of Intelligence and Investigation (Customs and Excise), Karachi and another, wherein it has been held that service of notice under section 32 of the is a condition precedent for initiation of proceedings, in the absence of notice under section 32 on the importer the entire proceeding initiated by the Adjudicating officer and further super structure thereon including the order passed by the learned Tribunal are without jurisdiction, void and in operative. The entire proceeding are accordingly struck off and the Honble Supreme Court of Pakistan in judgment reported as 2001 SCMR 838 Assistant Collector of Customs, Dry Port Peshawar v. Messrs Khyber Electric Lamp MFG Co., Ltd, Peshawar held that demand notices in the absence of statutory show- cause notices were without lawful foundation. It is well settled proposition of law that a thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all since pre requisite show-cause notices as required by law have not been served on the respondents, therefore no straight forward demand notice for payment of alleged short levy could be issued. Therefore, in the absence of statutory notice, demand notices dated 25-7-95 and 26-7- 95, were without lawful authority and thus of no legal effect. In accordance with the ratio decidendi by the judicial fora. I therefore hold that the recovery/demand notice communicated through reassessment order dated 27.09.2014 is being issued in isolation/vacuum and as such without any lawful authority, hence, null, void and ab-initio and the structure built upon this order has no legal value. Since the recovery so created by the respondent No. 1 falls within the ambit of Section 32(3) of the Act, the authority enjoying the powers this section is Principal Appraiser under Serial No. 3(ii) of SRO 371(I)/2002 dated 15.06.2002. To the contrary, the respondent issued recovery/demand notice through view message dated 24.03.2013 by usurping the powers of his subordinate, which is not permitted under law. Nobody is allowed to usurp the powers of his subordinates as held by the Honble Supreme Court of Pakistan in reported judgment PLD 1973 Supreme Court 49 The State v. Zia-ur-Rehman and others and 2009 PTD 1083 that Superior authority cannot exercise the power of his subordinates for adjudication purpose ¦¦ powers of sub-ordinate exercised by superior authority is held as to be without jurisdiction beside usurpation. Rendering the transmitting of view message for creating demand/recovery in the garb of reassessment under section 80(3) is without power/jurisdiction, hence ab-initio, null and void and coram non judice. It is also settled principle that the exercise of jurisdiction by an authority is mandatory requirement and its non fulfillment would entail the entire proceeding to be coram non judice. Ref: PLD 1963 SC 663, PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1983 SCMR 1232, 1984 CLC 1517, PLD 1995 Kar. 587, PLD 1992 SC 486, 2001 SCMR 103, 2004 CLD 373, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD (Trib.) 1996, 2009 PTD 1112, 2010 PTD (Trib.) 832, 2010 PTD 465, 2010 PTD (Trib.) 1636, 2011 PTD (Trib.) 2114, PLD 2011 PTD (Trib.) 2557, 2014 Supreme Court 514. The answer to the issue No. (v) is in negative.

13. That as regard to issue No. (vi), The respondent No. 1 infact through reassessment order amended columns 44, 45 and 47 of the GD completed in derogation of the provision of Section 29 of the Act, which is reproduced for revisiting and understanding its essence and spirit and constitutional and legislature construction. Restriction on amendment of Goods Declaration

Section 29: except as provided in section 88 no amendment of goods declaration relating to goods assessed for duty on declared value, quantity or description thereof shall be allowed after such goods have been removed from the port area or assigned Customs Reference Number electronically, as the case may be. (Emphasis supplied)

The rationale and legal construction of the above expression is that no amendment under section 205 of the Act. is allowed in the columns of the value, quantity and description i.e. 44, 45 and 47 after removal of the goods from the customs area for home consumption as contemplated in section 79(1) after passing of valid assessment/clearance order under Sections 80 and 83 and Rules 438 and 442 ibid, or after shipment of the exported goods through GD for export transmitted Under Section 130 and Rule 444 after completion of codal formalities defined in section 131 and Rules 450 of the Act/Rules or wherein Customs Reference Number is allotted to the GD electronically. A cap has been laid on the importer/exporter for obtaining amendment after out of charge of the GD in case of import or shipped in full in case of GD for export or post filing of GD. The phrase assessed for duty used in the expression lays restriction on the Customs not to amend itself the contents of Goods Declaration after clearance under Sections 83 and 130 and Rules 442 and 450 of the Act/Rules on the strength of valid assessment orders for levy and duty and taxes under Sections 80 and 131 and Rules 438 and 442 ibid by the appropriate authority defined in Section. 2(a) in exercise of the powers vested upon him through SRO No.371(I)/2002 dated 15.06.2002. That the respondent No. 1 while making reassessment of the appellants GD after clearance of the goods infact amended declared/assessed, unit value, import value in foreign currency .and in Pak Rupees i.e. US $ 1.40/- US $ 14,336/- and Rs. 1,420,005/- as against existing US $ 0.80/-, US $ 8192/- and Rs.811,432/- under Section 205 of the Act, which is in derogation of Section 29 and as such not valid and fail the test of judicial scrutiny. In principle if it is considered for the sake of arguments that the customs is empowered to reassess a GD after clearance of the goods under provision of Section 80(3) without adhering the procedure laid down in Section 80(2), there was no need for the legislature to frame subsection (2) for inserting in Section 80 of the Act. The intention of legislature was not as interpreted by the respondent No. 1. The fact of matter is no reassessment is permitted under Section 80(3) of the Act, once the goods are cleared for home consumption or shipped on board for export. The reassessment is permitted prior to passing of Order of clearance/shipment under Sections 83 and 130 and Rule 442 and Rule 453 of the Act/Rules upon filing of review by the importer/exporter under Rules 441 and 450(3) ibid against the assessment orders of Appraiser/Principal Appraiser before the Principal Appraiser and subsequently before Assistant/Deputy Collector of the Group as the case may be. Therefore, I hold that the reassessment made by Respondent No. 1 is tantamount to amendment under Section 205 post clearance /out of charge of the goods, hence, in nullity to the provision of sections 29, 80(2) and (3) of the Act, besides without any power or jurisdiction under Sections 80, 131 and Rules 438 and 450 of the Act/Rules and S.R.O 371(I)/2002 dated 15.06.2002 and as such without any lawful authority, hence void and ab-initio. That issue No.(vi) is answered in the negative.

14. As regard to issue No.(vii), the respondent No. 1 through view message dated 08.02.2013 also created recovery for the short paid Sales Tax and Income Tax due to inadvertence, while reassessing the GD under Section 80(3), while ignoring the fact that section 80(3) only speaks about duty not the taxes for which the appropriate authorities as expressed in Section 11 of the Sales Tax Act, 1990 and section 162(1) of the Income Tax Ordinance are Officer of Inland Revenue/Commissioner of Income Tax, Customs officials figure nowhere. Resultant, he is not empowered to create recovery of Sales Tax and Income Tax Post Clearance. To the contrary, customs is in fact empowered to collect Sales Tax and Income Tax leviable on the imported goods in the capacity of collecting agent in exercise of the powers vested under section 6 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. Through the view message he created recovery of Sales Tax and Income Tax despite having no power, rendering the view message dated 07.01.2015 for recovery of taxes without powers/jurisdiction, by virtue of exercise of powers not vested to him under Section 11 and the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001, therefore same is not correct and valid, hence void and ab-initio. The exercise of powers by the authority has to be within the expressed provision of the Act/Ordinance as per laid down principle by the Honble Supreme Court of Pakistan in 2002 PTD 2457 that the thing should be done as they are required to be done, or not at all, 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, 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 Honble 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 Honble 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 provided by law would not be permitted.. The super structure built on such foundation no matter how strong it may be has to crumble down. Reference is made to PLD 1996 Karachi 68, wherein it has been held 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. The issue No.(vii) is answered in negative.

15. In view of the above narration, the whole proceeding are infested with inherent legal infirmities and substantive illegalities tantamount to patent violation of mandatory statutory provision and that too, in utter disregard of the provision of the Acts/Ordinance and Principle of law settled by the Superior Judicial Fora. The chronicle even right from passing of reassessment orders/appeal passed by the respondents, are without power/jurisdiction hence ab-initio void and as such coram non judice by virtue of the fact that he ignored the provision of Acts/SRO and the ratio settled by the Supreme Court of Pakistan in reported judgment 2010 SCMR 1425 Section Officer Government of Punjab Finance Department and other v. Ghulam Shabbir that the Principle of Administration of Justice and Interpretation of Statute is that the person who is performing the role of a judge, no matter even in quasi-judicial proceeding must wear all laws of the country on the sleeves of his robes and failure to do so by any reason is not an excuse and reported judgments 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505 and 2006 SCMR (sic) that 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 provided by law would not be permitted.

16. I am also flabbergasted to observe from the record of the case that the respondents also ignored the vital fact that assuming of jurisdiction is of great importance and power has to be exercised within the allotted sphere, acting contrary to that is incurable rather fatal for the health of the case and this has been countless time held by the Honble Supreme Court of Pakistan that in case of assuming wrong jurisdiction, that the super structure built thereon ought to crumble down as held in reported judgments PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184. Beside it is advantageous to us to refer to 2001 SCMR 1822 Ali Muhammad v. Chief Settlement Commissioner, wherein the Honble Chief Justice of Pakistan Mr. Iftikhar Muhammad Choudhry presiding a bench in the capacity of Judge of Supreme Court held that:-

whenever order are passed by an officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercise in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice.

17. Their lordship also held in reported judgment PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP and others that determination of jurisdiction by Court seized with the matters is one of the important element in administration of justice as if justice has been provided basing upon coram non judice order then same would have no legal sanction behind. And in PLD 2005 Supreme Court 842 Khyber, Tractor (Pvt.) Ltd, v. Pakistan Through Ministry of Finance, Revenue and Economic Affairs that question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum having no jurisdiction, even if it is found to be correct on merit is not sustainable. Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi judicial functionary to exercise its power/authority and no sooner the question of jurisdiction is determined in negative the whole edifice built on such defective proceeding, is bound to crumble down.

18. What has been discussed and observed herein above, particularly the interpretation of law and legal preposition discussed in the light of prescribed law and observations made thereon and to follow the ratio decidendi, I hold that the view message for payment of duty and taxes/cess and penalty for late payment, which is by all mean an order generated/pasted by the respondent No. 1 on the home page of the appellant in addition to subsequent messages of similar nature as well as .the order in appeal passed by the respondent No.2 suffers from grave legal infirmities, therefore are declared to be illegal, null and void and hereby set-aside and appeal is allowed.

19. Judgment passed and announced accordingly.