2010 PTD 2523

ORDER

MUHAMMAD ARIF MOTON, MEMBER (JUDICIAL-II).--- By this common order I intend to dispose of aforesaid (21) identical customs appeals having similar facts and common questions of law filed by the Appellants against Orders-in-Appeal No. 1179 to 1204 of 2008, dated 15-8-2008, 1210 to 1219/2008 dated 19-8-2008 passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi.

2. Brief facts of the case are that the appellants electronically filed Goods Declaration declared to contain old and used Refrigerated Trucks under PCT 8704.2219 and get the consignments released in terms of section 79(1) of the Customs Act, 1969. Scrutiny of the GD revealed that the import of old and used Refrigerated Trucks was not permissible vide Serial-10 of Appendix-C of Import Policy Order 2007-2008, issued vide S.R.O. 1020(I)/2007 dated 8-10-2007. Importer was therefore, found guilty of importing banned and non importable vehicles in terms of Import Policy Order 2007-2008.

3. Adjudication proceedings were initiated against the appellants and the Assistant Collector passed the order-in-original. The relevant extract is as follows:--

"As per provisions of Para (ii) of the S.R.O. (I)/2008, C.No.10(7)L&P/05 dated 12-3-2008, issued by the Second Secretary L&P, F.B.R. (read with section 181 of the Customs Act, 1969), which is reproduced as under Redemption fine of thirty per cent of the C&F value of each vehicle shall also be applicable to all those refrigerated lorries, which have already been released in violation of IPO 2007 ..It is decided that the redemption fine amounting to 30% of the value of the offending goods is charged against the released goods and the importer is warned to be careful in future."

4. Appellant preferred an appeal against the above order before Collector (Appeals) who also upheld the order-in-original which are as under:

"Considering nature and the extent of unlawful indulgence in clearance of the impugned lorries in this case the invoking of penal provisions envisaged under section 181 of the Customs Act, 1969 read with S.R.O. 487(I)/2007 dated 9-6-2007 as amended vide S.R.Os. 139(I)/2008 .dated 12-2-2008 and 202(I)/2008 dated 1-3-2008 were correct, lawful and justified. Scale of fine is reasonable. No penalty has been imposed which shows a reasonable and fair view in the matter. There is no legitimate or genuine grievance in this case. It does not merit for further favours. Appeal is' devoid of substance hence rejected."

5. Hence these appeals on the following grounds:

(i) That the appellant had lawfully imported the subject vehicles as import of the same was allowed under the provisions of Import Policy Order 2006-2007 which order remained valid till issuance of the next Import Policy Order on 8-10-2007. Attention in this regard is drawn to an office memorandum of the Ministry of Commerce bearing No.12(38)2002-Imp dated 9-1-2003 which clarifies that 'whenever a change in the Import Trade and Procedures Order is made, the shipments made prior to the change are protected'.

(ii) That the Customs department as a practice follows the aforesaid position whenever any changes are made in the Import Policy Orders because it often so happens that consignments shipped during the currency of one Import Policy Order arrive when the next Import Policy Order is in the field. In such situations consignments which are already shipped (the Bill of Lading date in such cases seen) are treated as per the provisions of the IPO which was infield at the time of shipment. The arguments in the impugned order that the facility of import of refrigerated lorries was available till 30-6-2007 only is not at all valid because the Import Policy Order 2006-2007 was valid till 7-10-2007 i.e. just before enforcement of the new Import Policy Order 2007-2008. Fully unstinting this situation, the Customs assessing authorities correctly treated appellant's imports in terms of the provisions of IPO 2006-2007 which provisions were lawfully applicable in the appellant's case. The new meaning given to the provisions of IPO 2006-2007, restricting their application upto 30-6-2007 is not tenable under the law. The law relating to imports and exports in the shape of Import and Export Policies remains valid till issuance of the next polices unlike the provisions of tax laws which may have impact from one financial year or the next financial year. Therefore, the terms used in Appendix-C to the IPO 2006-2007 in respect of import of refrigerated lorries importable during 2006-2007 certainly means (as properly understood by the Customs assessing authorities) imports during the currency of the Import Policy Order 2006-2007 which factually remained a valid policy (and also a valid concession for import refrigerated lorries) till 7-10-2007.

(iii) That the mistaken view adopted by the respondents that the impugned imports attracted the provisions of Import Policy Order, 2007-2008 is not valid and is an outcome of a confused meaning given to the clarification of the Ministry of Commerce and to the practice of dealing with such situations. The impugned imports definitely do not attract the provisions of IPO 2007-2008 as the same were shipped at a time when IPO 2006-07 was still holding the field whose provisions would govern such transactions.

(iv) That the show-cause notice issued in the case is bad under the law as the same is sketchy and does not give any evidence as to why the import documents were considered to be fake and forged.

(v) That the show-cause notice unlawfully determines the value of the goods imported in the case at Rs.1,831,5001-as against the invoice value of US$ 16.000, without specifying the method of valuation adopted while determining the said value, much less attaching any evidence thereabout with the show-cause notice. There are a number of decisions from the higher judicial fora which make it mandatory for the Customs authorities to be transparent in their working while determining the Customs value of imports and such decisions bind them to follow the different valuation methods, given under Section 25 of the Customs Act, 1969, .in a sequential order. A mere look at the show-cause notice issued in the case shows that no such effort has been made by respondent No.2 to specify the basis of enhancement of value or to mention the valuation method adopted or to attach the evidence of evidential imports in order to give ample opportunity to the appellant to defend himself against such an arbitrary charge.

(vi) That all order based on the aforesaid sketchy and unlawful show-cause notice are void under the law. In a similar case of Messrs Kamran Industries v. The Collector of Customs PLD 1996 Karachi 68.

(vii) That the impugned Order-in-Original and Order-in-Appeal passed in the case give on basis for upholding the determination of higher value in the show-cause notice which deprived the appellant from an opportunity to properly contesting the charges levelled in the show-cause notice. All this was done in clear violation of the principles of natural justice which as a minimum require the department to give a fair opportunity of hearing to the person against whom charges have been levelled. A fair opportunity of hearing means the accused should be provided with the basis of charges against him and to provide him with the necessary evidences relied upon by the department. In context of the show-cause notice issued in this case we find that the appellant were not provided with any evidence which the department may have relied upon, while issuing such show-cause notice.

(viii) )That the impugned order-in-original and order-in-appeal are based on S.R.O. 202(1)/2008 dated 1-3-2008. It is submitted that the said S.R.O. has been issued in terms of the provisions of section 181 of the Customs Act, 1969. The provisions of section 181 of the Act provide for imposition of fine in lieu of confiscation. In the appellant's case the goods were already released hence no redemption fine could legally be imposed because imposition of such fine presupposes the presence of goods. On this ground alone the provisions of the said S.R.O. are not applicable in this case. Attention in this regard is drawn to Para-75 of Customs General Order No. 12 of 2002 (Annex-VI) where in the context of the provisions of section 181 it is stated that the option for redeeming goods, on payment of - fine in lieu of confiscation, can be exercised at any time before the goods are disposed of by the authorities. So it can be seen that there is no authority under the provisions of section 181 of the Act to impose fine in lieu of confiscation in a situation where the goods have already been released or disposed of. In a similar case of Messrs Irfan Foods v. Additional Collector of Customs, Karachi, the worthy Collector of Customs (Appeals), Karachi, had rightly held that imposition of fine in lieu of confiscation could not be imagined in a situation where the goods have already been released.

(ix) That even otherwise the said S'R.O. 202(I)/2008 was issued on 1-3-2008 whereas the appellant's goods were imported and cleared from Port much before the said date and the change brought about by the said S.R.O. could not be applied retrospectively. The subject S.R.O. itself does not specify that it should be applied retrospectively hence its adoption, with retrospective effect, in the appellant's case is without any lawful justification and jurisdiction.

(x) That the F.B.R. while issuing S.R.O. 202(I)/2008 was not authorized to direct imposition of redemption fine in respect of goods which were already cleared from Customs because such a levy in respect of already cleared goods is not available under the provisions of section 181 of the Customs Act, 1969.

(xi) That once assessment was completed in terms of the provisions of section 80 of the Customs Act, 1969, the Assistant Collector of Customs was not authorized to reopen the assessments. Such action could only be taken by the Board or the Collector of Customs in terms of the provisions of section 195 of the Customs Act, 1969. In the case of Abdul Rehman Paracha and Co. v. Assistant Collector of Customs (Appraisement), Customs House, Karachi it was ruled by the Appellate Tribunal, Karachi Bench that only Collector was competent to reopen the case.

(xii) Lastly he prayed that the Show-Cause Notice, order-in-original as well as the impugned Order-in-Appeal arising therefrom may kindly be set aside not maintainable on facts and law involved.

6. The departmental representatives filed counter submissions in reply to subject appeals:-

(i) That before making counter submissions it is respectfully bring into kind notice of the Appellate Tribunal that according to the Serial No. 10 of Appendix-C of the Import Policy Order, 2006-2007, the old and used refrigerated lorries, not more than 10 years old were only importable upto 30-6-2007 to the limited extent of 1500 units for the year 2006-2007. The contents of said provisions of law are re-produced below for ease of reference:

"Vehicles of Chapter 87 (including likewise chassis of used automotive vehicles cut into minimum of two pieces whether or-not described as steel scrap), except the following:--

(i) ----------------

(ii) ----------------

(iii) ----------------

(iv) Refrigerated lorries not older than ten years, upto maximum of 1500 units during 2006-2007 (8704.0000) Mobile Clinics (see Serial No. 21 of Part-II of Appendix-B)"

In the Government's secretarial/administrative/fiscal matters if an year or period is mentioned like "2006-2007" then it means that the duration of that period starts from 1st July and ends on 30th June of the said year. Therefore, the aforesaid exception of 1500 units was only available upto 30th June, 2007. All the vehicles of the subject therefore, as per aforesaid provision of the Import Policy Order, 2006-2007, read with the subsequent Import Policy Order, 2007-2008, no old and used refrigerated lorries trucks were importable. The said position was also. further clarified by the Ministry of Commerce vide its letter No.4(1)/200G-A.C.(Imp) dated 29-11-2007

(ii) That, without prejudice to above, in most of the cases the vehicles were imported not only after 30th June, 2007, but also even after the S.R.O. 1020(I)/2007 dated 8-10-2007, thus, even otherwise those vehicles were not importable by both the Import Policy Orders, for the years 2006-2007 and 2007-2008.

(iii) That considering the provisions of section 179 of the Customs Act, 1969, and the monitory limits provided thereon, the show-cause notices have been correctly issued by the competent authority. Without prejudice to above, even otherwise as per dictum settled by the honourable Supreme Court of Pakistan in the case of Civil Petition No. 775-K/2003, vide order dated 10-11-2003, merits of the case cannot be scrapped on sheer technicalities. It is pertinent to mention here that in the cited case the notice was issued by the Assistant Collector instead of Additional Collector.

(iv) That admittedly goods were imported and released in violation of the Import Policy Order, therefore, consideration the provisions of sections 16, 32 and clauses (9) and (14) of section 156(1) read with the provisions of sections 17, 80 and Chapter-XVIII of the Customs Act, 1969, the goods can be confiscated at any time even after release of the goods in terms of section 83 of the Customs Act, 1969.

(v) That the appellant's contention in respect of application of section 195 of the Customs Act, 1969, is incorrect and showing signs of ignorance of law or to say self-interpretation of law, hence, denied. That in the presence of provisions of section 32 of the Customs Act, 1969, read with the apex Court's judgment in the case of Messrs Pfizer Laboratories v. Federation of Pakistan and others (PLD,1998, SC. 358) no Goods Declaration Bill of entry can be termed as past and closed transaction. Secondly, the provisions of section 195 of the Act, have neither any nexus with the provisions of section 32 nor it has any over-riding affect on section 32 of the Act. Both these provision of law are distinct and have their independent jurisdiction. Further, it is confirmed that the provisions of section 195 have jurisdiction over an order/decision passed under section 179 or 193, as the case' may be, and have no overriding effect on a notice issued under section 32 of the Act. It is also an admitted fact that the provision of section 32 provides that a notice can be issued within five years, whereas, the provision of section 195 provide two years period for re-opening of a closed transaction, thus, even by the aforesaid different periods provided under sections 32 and 195 of the Act, it is clear that the provision of section 195 have no overriding effect on the sections 32, 16 and other provision of the Customs Act, 1969, except as stated above, the cases where the orders have been passed in terms of sections 179 and 193 of the Customs Act, 1969: Secondly, as neither there was any question of closed transaction nor it is a case where re-opening of the case was mandatory under section 195 of the Customs Act, 1969. Further, without prejudice to above, in the section 195 the words "may" and "passed" have been used. By using words "may" the intents of the legislations are very much clear that it is not mandatory for the Collector to re-open any procedural action/ If decision which the appropriate officer/official has done finally. The assessment of the imported goods was a procedural act instead of a decision on quasi-- judicial proceeding it is neither a decision passed on any application for refund, re-export, etc., nor the process of assessment can be termed as an order passed under sections 179 and 180 of the Customs Act, 1969.

(iv) That further scrutiny of the subject appeals divulged that in most of the cases the vehicles are more than ten years old, thus, without prejudice to above, even otherwise if those vehicles were imported prior to 30-6-2007 in that case too due to their age from the date of manufacturing the vehicles, involved in the subject appeals were not importable and were liable for confiscation.

(v) Lastly, he prayed that in the light of above submissions reject the subject appeals as being devoid of any merits.

7. The learned counsel for the appellant filed Additional submissions which are as under:

(i) That the impugned Order is null and void as the show-cause notice issued was ab initio in violation of section 179 of the Customs Act, 1969, as the respondent No. 2 has passed the ?order beyond his jurisdiction as prescribed by the section 179 of the Customs Act, 1969. The same is reproduced as follows:--

(179) Power of adjudication .---(1) Subject to subsection (2), in cases involving confiscation of goods or imposition of penalty under this Act or the rules made thereunder, the jurisdiction and powers of the Officers of Customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows:

(i) Additional Collector

Without limit

(ii) Deputy Collector

Not exceeding eight hundred thousand rupees

(iii) Assistant Collector

Not exceeding three hundred thousand rupees"

(ii) That in the light of the said section the order passed by the respondent No. 2 is illegal and unlawful. This case is adjudicated by the Assistant Collector of Customs, Model Customs Collectorate (PaCCS), Karachi, beyond his jurisdiction of adjudication as provided in section 179 of Customs Act, 1969, involving loss of revenue more than the prescribed limit of Rs. 3,00,000/-. The orders-in-original is liable to be set aside as held by Superior Courts. Reliance is placed on 2006 PTD 340, PTCL 2005 CL 841, 2006 SCMR 129, PLD 1971 Supreme Court 124 and 2004 PTD 3032 and Customs, Excise and Sales Tax Appellate Tribunal, Bench-I order vide Customs Appeal No. K-187 of 2009 in the case of Messrs Collector of Customs (MCC) PaCCS v. Messrs Shahjahan and Sons, Karachi. In the light of the said section and superior Courts ruling the order passed by the respondent No. 2 is illegal and unlawful.

(iii) That in the appellants' case the goods were already released and the goods were not available for confiscation in terms of section 181 of the Customs Act, 1969 read with S'R.O. 487(I)/2007 dated 9-6-2007 and S.R.O. 202(I)/2008 dated 1-3-2008. The fine is imposed under S.R.O.' 202(I)/2008 dated 1-3-2008 in lieu of confiscation, and when the goods are not available for confiscation the same cannot be offered for redemption against fine. Hence, no redemption fine could legally be imposed on the appellant goods. In a similar cases of Messrs Osaka Traders v. Assistant Collector of Customs MCC. ICG JIA, Karachi and. Messrs Irfan Foods v. Additional Collector of Customs the worthy Collector of Customs (Appeals), Karachi, had rightly held that imposition of fine .in lieu of confiscation could not be imagined in a situation where the goods have already been released.

(iv) That even otherwise the said S.R.O. 202(I)/2008 was issued on 1-3-2008 whereas the appellants goods were imported and cleared from Port much- before the said date and the change brought about by the said S.R.O. could not be applied retrospectively. The subject S.R.O. itself does not specify that it should be applied retrospectively hence its adoption, with retrospective effect, in the appellants' case is without any lawful justification and jurisdiction. The FBR while issuing S.R.O. 202(I)/2008 was not authorized to direct imposition of redemption fine in respect of goods which were already cleared from Customs, because such a levy in respect of already cleared goods is not available under the provisions of section 181 of the Customs Act, 1969. The provisions of section 181 are reproduced below as ready reference.

(v) That the honourable Supreme Court of Pakistan has held, that "A thing required by law, is to be done in the manner prescribed by the law, must be done in the same manner as prescribed by the law". He placed reliance upon 2001 SCMR 838 at page 842 note B.

(vi) That in this case the assessment order has passed under section 80 of the Customs Act, 1969. Now the Assistant Collector is not authorized to re-open the assessment. Such action could only be taken by the Board or the Collector of Customs in terms of the provision of section 195 of the Customs Act, 1969. The Hon'ble apex Court of Pakistan in the case of Eduljee v. Federation of Pakistan. 1990 PTD 155 held that through an audit a past and closed transaction cannot be re-opened unless the procedure laid down by the law.

(vii) That the goods of the appellant were assessed under the First Appraisement System, and the charge of misdeclaration can't be alleged when the assessment of goods was made under the first appraisement system as held by the Hon'ble High Court of Sindh reported in 2003 PTD 2090. It was held that;

"In the case of option given for first appraisement for the determination of correct description of. PCT heading, quantity of goods, no misdeclaration shall be charged for misdeclaration under section 32 of the Customs Act, 1969"

(viii) That the Honorable High Court of Sindh has re-enforced the similar position of law in the case of case of Messrs Muhammad Razi v. Collector Customs (Appraisement) reported as 2003 PTD 2821 and Messrs Shaheen Enterprises v. Additional Collector, 2005 PTD (Trib.) 1321 and 2005 PTD (Trib.) 1826.

(ix) That the impugned order passed by the learned respondent No.2 is travelled beyond the charter of show-cause notice. In the last Para of the impugned order the learned respondent is imposing a 30% fine under S.R.O. 202(I)/2008 dated 1-3-2008, wherein the show-cause notice it was alleged that the vehicle is banned and liable to confiscation as per the provision of S.R.O. 487(I)/ 2007, dated 9-6-2007, the above said S.R.O. is not mentioned anywhere in the show-cause notice and the facility of 30% fine is not available in the show-cause notice. The learned respondent changes his stance, which is in violation of the Hon'ble apex Court of Pakistan ruling. The Hon'ble apex Court held that the adjudicating authority cannot travel beyond the charter show-cause notice reported as 1987 SCMR 1840. Hence the impugned order is unlawful, illegal, void and is liable to be set aside.

(x) That the impugned Order in Original is void of all legality as it is based on a show-cause notice which is vague and defective in the light of the judgment of the apex Court in case Khyber Electric Lamps reported as PLD 1997 SC 582; that in this case the' subsection of section 32 of the Customs Act, is not mentioned anywhere in the show-cause notice-is defective and subsequent order is illegal. The Hon'ble apex Court categorically held that:--

"Show-cause notices under section 32(2) and (3) of Customs Act, 1969---Distinction---Both the notices are two distinct and separate types of notices as different grounds and different periods for service of notice in each subsection of section 32, Customs Act, 1969 has been prescribed---Specific allegation of any collusion between assessee and Customs Authorities has to be levelled with proper particulars in the show-cause notice under section 32(2) of Customs Act, 1969, and for non-levy, short levy or erroneous refund, such notice had to be served within three years of the relevant date---Non-levy, short levy or erroneous refund under the provisions of section 32(3) of Customs Act, 1969, is done due to inadvertence, error or misconstruction and the show-cause notice to the importer has to be served within six months of the non-short levy---Where such specific particulars are not stated in the notices, the same are vague and are not in consonance with the requirement of sections 32(2) and (3) of Customs Act, 1969."

(xi) That the Hon'ble apex Court of Pakistan has re-enforced the similar position of law in the case of Messrs Caltex Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others reported as 2006 SCMR 1519. The Hon'ble apex Court held that;

"Show-cause notice not disclosing grounds and reasons for proposed action---Evasion of sales tax---Plea of inadvertence---Contention of the authorities was that for availing the benefit of section 65 of Sales Tax Act, 1990, Central Board of Revenue was the proper forum---Validity---Without completion of pre-requisite of show-cause notice and supply of the grounds/reasons in clear and explicit words to ascertain as to under which subsection of section 36 of Sales Tax Act, 1990, the case would fall, the demand of the authorities had .no legal consequence---Such failure of the authorities issuing show-cause notice to disclose the grounds and reasons rendered the notice invalid---Collector concerned initiated the process of issuing show-cause notice raising the presumption that petitioner company was responsible for evasion of sales tax therefore, no useful purpose would be served in undertaking the exercise of approaching the Collector for grant of benefit of section 65 of Sales Tax Act, 1990---Was essential for the Tribunal to examine the scope of section 65 of Sales Tax Act, 1990, and it should have given clear verdict in the matter---Federal Government was competent to exempt the sales tax in a case which Was covered by the provisions of section 65 of Sales Tax Act, 1990---Question regarding entitlement of the benefit of section 65 of Sales Tax Act, 1990, would need determination by an independent forum---Supreme Court remanded the case to the Tribunal for its determination as the Tribunal haw not attended such fundamental question and failed to exercise the jurisdiction vested in it---High Court while affirming the judgment of Tribunal committed the same error---Supreme Court framed certain questions and directed the Tribunal to decide them afresh---Appeal was allowed."

(xii) That in the light of the above rulings the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench-I has also ruled the similar position of law in Appeal No H-340/05 in the case of Messrs Dadabhoy Cement Industries Limited v. Collector of Customs, Sales Tax and Central Excise, Hyderabad and others.

(xiii) That the confiscation of vehicle is illegal and unlawful as held by the honourable Supreme Court of Pakistan in Civil Appeal No.899 of 2002, the Additional Collector of Customs (Preventive), Karachi v. Haroon Rashid Chaudhry and 2 others. The Honorable Supreme Court of Pakistan has held, that:-

"The confiscation would serve no purpose and the payment of duty would certainly add to the Government revenue which would be in the interest of State but not the concerned officers who used to dispose of such confiscated items at a very low price."

(xiv) That the same position of law has been re-enforced by the Customs Excise and Sales Tax Appellate Tribunal, Karachi Bench in its judgments vide the Customs Appeal No.235/ 2006(K-2), 129/2007, K-190/2007(K-2) and K-697!2009 allowed the release of the banned goods in violation of Import Policy Order, on duty and taxes.

(xv) That the respondent has failed to consider the dictums of Honorable Supreme Court as held in 2004 PTD 2187 (Abu 13akar Siddique v. Collector of Customs, Lahore).

(xvi) That the appellant has no motive to evade the duties and taxes wilfully. In PLD 1991 SC 963 the Hon'ble apex Court of Pakistan held that "Imposition of penalty is illegal, where the evasion of duty was not wilful." The same position of law was also re-enforced by the Customs Tribunal, Karachi Bench-III in Customs Appeal vide Appeal No.K343/2002/9611.

(xvii) That the impugned order-in-original is void of all legality as it is based on a show-cause notice which is unlawful and ultra vires of law and facts in the light of the judgment passed by the Hon'ble High Court of Sindh reported in 2006 PTD 2237 wherein it was categorically held that the Valuation and PCA is authorized to audit the post importation cases.

(xviii) That in the case of appellant the show-cause notice was issued by the Assistant Collector, Model Customs Collectorate of PiCCS and passed the order-in-original had no jurisdiction. It was clearly a post importation case initiate action for recovery of the government dues under section 32 of the Customs Act, 1969.

(xix) That without prejudice to our before stated stance it is submitted that even otherwise the show-cause notice merits vacation. In this regard it was respectfully submitted that the show cause was issued under section 32A of Customs Act, 1969 punishable under clause (14A) of section 156(1) of the Customs Act, 1969.

(xx) The plain reading of above clause confirms that no violation has been made by the appellant and fine can be imposed without confiscation of the goods, whereas adjudication officer imposed fine without confiscation of the goods, which is illegal and declared unlawful by the superior courts.

(xxi) That the appellants respectfully submit that there is no loss of Revenue involved in this case and even not charged in the show cause notice or impugned through order in original. Therefore the provisions of section 32 are not applicable as held by the honourable Supreme Court of Pakistan 2007 SCMR 1880. The post audit falls within the ambit of section 32(3A) of the Customs Act, 1969, which do not cover the audit of legal status of import.

(xxii) That as regards (b) the Vehicle was examined and assessed to duty and taxes for the Model 1997 under the provisions of sections 80 and 83 of the Customs Act, 1969. No show-cause notice is provided under the provisions of Customs Act, 1969 other than under the provisions of sections 17, 168 and 186 of the Customs Act, 1969. Therefore the issuance of show-cause notice is not warranted under the law.

8. Rival submissions heard. Case record examined. Advocates from both sides in the first instance put forth their arguments regarding jurisdiction of the adjudicating officers in these cases. The designation of the adjudicating officers have been shown as AC/DC in most of these cases.

9. Contention of tie learned counsel for the appellant is that the Assistant Collector does not have any authority under section 179 of the Customs Act, 1969 for issuing the show-cause notice or to adjudicate thereupon to the extent of the case of appellant, this' power is only given under the law to the Deputy Collector/Additional Collector under section 179 of the Customs Act, 1969 in terms of monetary limits. On the other side learned counsel for the respondent submitted that the - Assistant Collector was competent to adjudicate upon the show-cause notice, since the matter did not involve recovery of customs duty and taxes and imposition of penalty in terms of section 179 of the Customs Act, 1969. No monetary limit has been fixed under section 181 of the Customs Act, 1969 for imposition of fine which is imposed in relation to the value of offending goods in terms of relevant S.R.O. 1020(I)/2007 dated 8-10-2007 read with S.R.O.202(I)/2008 dated 1-3-2008. 'The Appellant's advocate has not even been able to pinpoint the unlawful exercise of jurisdiction by the Assistant Collector/Deputy Collector by quantifying the amount of revenue involved.

10. For a better comprehension of the case it is deemed imperative that following issues are framed by this forum in the first instance:

(i) Whether the assessment of old and used Refrigerated lorries finalized by respondent Assessing Officers in terms of sections 79, 80 and 83 of the Customs Act, 1969 on the basis of physical examination can be reopened and adjudicated under section 179 of the Customs Act by officer of original jurisdiction after issuance of show-cause notices?

(ii) Whether the provisions of amending S.R.O. 202(I)/2008 dated 1-3-2008 to parent S.R.O. 487(I)/2007 dated 9-6-2007 are in contradiction of the provisions of section 181 of the Customs Act, 1969 and constitute a violation of the maxim "expressum facit cessare taciturn" as held by the Hon'ble Supreme Court of Pakistan in the case of E.A. Evans reported as PLD 1964 SC 536?

(iii) Whether fine in lieu of confiscation in terms of section 181 of the Customs Act, 1969 read with S.R.O. 202(I)/2008 dated 1-3-2008 further read with para. 75 of CGO.12/2002 can be imposed when the goods involved are not available before Customs Authorities since they have already been released?

11. As regards Issue No.(i), the word `order' was interpreted in Noor Muhammad v. Member Judicial, BOR reported as PLD 1986 Lah. 237 as follows:--

" .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 orders including a formal order."

The words `order or decision' as used in section 193 of the Customs Act, 1969 were interpreted by a Division Bench of this Tribunal in Shaikh Muhammad Saeed and Co. v. Deputy Collector reported as PTCL 1997 CL 206 in which while relying upon Secretary of State v. Mask and Co. AIR 1940 PC 105, it was observed that the word 'order or decision' are not circumscribed by any specified form or format. Thus the order passed by an appropriate officer of Customs at the time of release is an order in terms of section 193 of the Customs Act, 1969.

12. The fact cannot be denied that goods imported by appellant have been assessed by competent officers exercising powers under section 79 read with section 80. This assessment order becomes a final order after the lapse of time period for filing an appeal against the said order. Such right of appeal has not been given to Customs Authorities in terms of section 193 of the Customs Act, 1969 in order to reopen a past and closed transaction, the only recourse available for the respondent was to initiate action within the framework of section 195 of the Customs Act, 1969, as it is a settled law that assessment orders are appealable and where an appeal has not been filed, the matter was to be reopened by a competent and authorized officer under section 195 of the Customs Act, 1969 and failure to do so would render the initiated proceedings as being illegal and not warranted by law. The Hon'ble Sindh High Court in Smith Kline French v. Pakistan (unreported) has held that once an order is passed which attains finality, the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order. This was held by the learned High Court to be in derogation of the principles of administration of justice.

13. In this case the order of the Assessing Officer can only be reopened by the Collector under section 195 ibid to examine the record of any proceedings conducted under this Act for the purposes and satisfying himself as to the legality or the propriety of the order passed by the Assessing Officer. The respondent instead of reopening an already finalized case of the appellant initiated adjudication proceedings through issuance of show-cause notice and adjudication of the whole matter afresh. This is explicitly not admissible under the law. In order to understand the application of the provisions of section 195 of the Customs Act, 1969 to reopen the proceedings where such proceedings suffer from irregularity and impropriety, reference is made to the Black's Law Dictionary in respect of the word "illegal" which means unlawful in and of itself and not because of some extraneous circumstances e.g. a contract to assassinate a public official". On the other hand the word "improper" has been defined as "Not suitable; unfit; not suited to the character, time and place. Not in accordance with fact, truth, or right procedure and not in accord with propriety, modesty, good taste, or good manners". These two terms, therefore, have nexus with the abuse of power by the subordinate officers and otherwise the ethical moorings of a civil society, in relation to the relevant law. The revisional powers conferred vide section 195 do not authorize an officer to examine issue not falling within the scope of the terms "legality" and "propriety". It means, that the powers under section 195 are limited, compared to an appeal before a competent authority.

14. Setting aside an order of clearance made under section 83 of this Act, for instance, is a type of order which can be revised by the Revisional Authority under section 195, for the simple reason, that such an order of clearance is subject to the satisfaction of the officer of customs which must be arrived at fairly and not arbitrarily as observed in the case of East Jamunia Co. (Pvt.) Ltd. Calcutta v. Collector of Customs, Calcutta reported as 1978 ECR 790. In Council of Civil Service Union v. Minister for the Civil Service reported as (1985) AC 374 and 410, it was said by Lord Diplock, that the Courts usually review an exercise of power to ensure that a public body:--

(i) has not made an error of law.

(ii) has considered all the relevant factors, and not taken into account any irrelevant factors.

(iii) has acted for a purpose expressly or impliedly authorized by statute.

(iv) has not acted in a way that is so unreasonable, that no reasonable public body would act in that way;

(v) that the public body has observed statutory procedural requirement of the principles of natural justice or procedural fairness.

15. Even in those cases where goods are cleared toy Customs Officer after physical verification under section 80 of the Customs Act, in such cases goods cannot be confiscated except in pursuance of orders passed under section 195 ibid. as adjudged by Bombay High Court in its judgment reported as Union of India v. Popular Dechem 1987 [ELT 63] Bom. Even a bill of entry cleared for home consumption on order of an Appraiser and countersigned by the Assistant Collector constitutes an order of adjudication as observed by the Dehli and Madaras High Courts in their judgments reported as [1982 ELT 43 (Del) and judgment of Madras High Court in Writ Petitions Nos'.5296, 5297 and 5654 of 1979 rel. on].

16. Under the provisions of Customs Act, 1969 any order passed in terms of section 79 read with sections 80 and 83 of the Customs Act, 1969 is appealable in terms of section 193 ibid. to Collector Appeals by the aggrieved person which of course does not include the Customs Officers. In the present case in wake of requests made by the appellants in terms of section 79(1) of the Customs Act, 1969 for 1st Appraisement, the assessments were finalized by the. Customs Officers through assessment orders in terms of sections 80 and 83 of the Customs Act, 1969. These orders if issued against the taxpayer could have been assailed by the taxpayer in terms of section 193 of the Customs Act, 1969 with the Collector (Appeals). Since the officers of customs have no right to assail these orders in terms of section 193 ibid there is a course defined by the legislature in .section 195 of the Customs Act, 1969 for reopening such cases where the legality or propriety of any decision or order passed by subordinate officer is in question. Dozens of subject vehicles were assessed to customs duty on the basis of physical examination by different officers. It may be noted that these officers also scrutinized the customs/commercial documents presented by the appellant to them and after exercising their authority expertise and wisdom allowed the clearance of these vehicles to the appellant. In view of the aforesaid exercise spread over a number of vehicles, the respondents at this belated stage are not allowed to take a complete U-turn and start adjudication of past and closed transactions through issuance of show-cause notices and adjudication orders under section 179 of the Customs Act, 1969 when a lawful course has been prescribed by the legislature in section 195 of the Customs Act, 1969 for reopening of such decisions or orders whereby Federal Board of Revenue or Collector of jurisdiction can call for and examine the records of any proceedings under this Act for the purpose of satisfying as to their legality or propriety. For ease of reference Section 195 of Customs Act is reproduced below:--

195. Powers of Board or Collector to pass certain order :---(1) The Board or the Collector of Customs [or the Collector of Customs (Adjudication) may, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself, or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit:

Provided that no order confiscating goods of greater value or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorized by him.

(2) No record of any proceedings relating to any decision or order passed by an officer or customs shall be called for or examined under subsection (1) after the expiry of two years from the date of such decision or order.

17. It is a settled law that an order or decision passed or taken by the subordinate officer can only be corrected in revisional power and not under section 32 of the Customs Act, 1969 since the Collector or the Federal Board of Revenue exercise their revisional powers or correctional jurisdiction in terms of section 195 of the Customs Act. For adjudication of a case through issuance of show-cause notice, the proof of misdeclaration has to be prima facie present in the first instance if allegation of misdeclaration is to be levelled against the taxpayer in terms of section 32 of the Customs Act, 1969 through issuance of show-cause notice by the officer of original jurisdiction. When the lorries were released on the basis of commercial documents and physical/examination by the Examining and Assessing Officers; the charge regarding production of fake/forged certificates against the appellant are unsubstantiated once the vehicles have left the customs/port area in terms of Hon'ble High Court's judgments reported as 2008 PTD 1968 wherein the Hon'ble High Court of Sindh has observed that it is a settled principle that after clearance of goods and remand of consignment from customs area, customs authorities are functus officio to reopen the case again as it becomes a past and closed transaction. Their lordships also dilated upon the proper application of subsection (2) of section 32 of the Customs Act in such cases by observing that "even if it is taken under subsection (2) of section 32, which relates to misdeclaration along with the collusion of Customs Authorities then there is nothing on the record that whether the department had initiated any disciplinary proceedings against the alleged customs officers simultaneously along with the appellant. In absence of departmental proceedings against the delinquent officers, who were in collusion with appellant in evading the Government duty, the proceedings conducted only against appellant cannot be said to be a penal action under Section 32(2) of the Act, but would be considered as discriminatory action taken only against the appellant/importer."

18. In its judgment reported as 2009 PTD 467 the Hon'ble Lahore High Court in respect of application of section 32 of the Customs Act, 1969 has observed that once a consignment in out of charge after due consideration of relevant facts it becomes a past and closed transaction. The same position has been taken by a Division Bench of Customs Appellate Tribunal in their judgment dated 18-10-2001 in Customs Appeal No.K-2352/99 in a case of reopening of Sales Tax Refund claim that once the disputed claims of the appellants were scrutinized by the competent authority and after being satisfied with the legality and propriety the same were sanctioned, that could not be reopened by the same authority as they are a past and closed transaction. The Tribunal went on to observe that show-cause notice issued was incompetent and beyond jurisdiction in terms of judgment of the Hon'ble Supreme Court reported as PLD 1971 SC 197. The relevant extract being as under:-

"Whether the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances " it could never be too late to admit and give effect to the plea that the order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone v. Chief Kwame Tawia 9 DLR 686 (PC)."

In Raunaq Ali's case (PLD 1973 SC 236), their lordships of the Supreme Court did observe in the following terms:--

"It is now well-settled 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 the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and 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, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."

19. If the subject assessment order passed by the Assessing Officer was not legal and it can only be challenged and reopened by the revisional authority i.e. Collector of Customs or Federal Board of Revenue in terms of section 195 of the Customs Act, 1969. It is an assessment order for all legal and practical purposes where goods have been released after examination and assessment of duties and taxes by the competent officers of the Customs and therefore, a past and closed transaction. General principle in such case implies that neither confiscation nor imposition of penalty is a determinative criterion or a condition precedent, to stamp an order under law, as an order appealable in terms of the judgment reported as [Ajay Exports v. Collector of Customs 1986 ELT (26) 8731.

20. However, in both situations, one where the case has been adjudicated by the Assistant Collector/Deputy Collector after the issuance of show-cause notice for misdeclaration under section 32 of the Customs Act, 1969 or where the case needed to be reopened either by Federal Board of Revenue or Collector of Customs in terms of section 195 of the Customs Act, 1969 the legal consequential position emanating in both the situations is one and the same that redemption fine in both the cases could not have been imposed either by the Assistant Collector or Deputy Collector or even by the F.B.R or Collector of Customs in terms of redemption of the subject goods since these were not available for redemption being released earlier by the customs authorities. The only course open to Assistant Collector/Deputy Collector or the F.B.R./Collector of Customs as the case may be would have been to impose the prescribed pitch of penalty in terms of section 156(14) of the Customs Act, 1969 for securing the element of fine in lieu of confiscation of offending goods which could not be obviously done in their absence. Though the reply to Issue No.(i) has no consequential effect in view of this para, yet the same is answered in the negative for illustrating a similar situation.

21. As regards issue No.(ii) the terms of amending S.R..O.202(I)/I/2008 dated 1-3-2008 as enumerated at (ii) to the proviso to the said amending S.R.O. that "redemption fine of thirty per cent of the C&F value of each vehicle shall be applicable to all those refrigerated lorries which have already been released in violation of Import Policy Order 2007", are in patent contradiction with the terms of the parent statute section 181 of the Customs Act, 1969 for prescribing imposition of redemption fine when goods are not available for confiscation. This position along with subsequent adjudication by officers of original jurisdiction in place of reopening of the cases by Federal Board of Revenue or Collector under section 195 of the Customs Act, 1969 are in violation of the maxim "expressum facit cessare taciturn" as held in the case of E.A Evans 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 particular manner then doing of that thing in conflict with the manner prescribed will be unlawful. The Hon'ble Apex Court in their judgments reported as 2001 SCMR 838 and 2003 SCMR 1505 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 observed that if the laws 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 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. The orders-in-original issued by the Assistant Collector/Deputy Collector are, therefore, unlawful, illegal, without jurisdiction and coram non-judice. The order of the Collector (Appeals) based on such order is also ab initio illegal and void. As such issue No.(ii) is answered in the affirmative.

22. As regards Issue No.(iii) in order to understand the mechanism under section 181 of the Customs Act, 1969 it is deemed imperative to reproduce the relevant statute below:-

181 Option to pay fine in lieu of confiscated goods .---Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit.

Explanation -Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods[:].

[Provided that the Board may by an order specify the goods or class of goods where such option shall not be given:

Provided further that the Board may by an order fix the amount of fine which in lieu of confiscation shall be imposed on any, goods or class of goods imported in violation of the provision of section 15 or of a notification issued under section 16 or any other law for the time being in force.]

The following relevant provisions are incorporated in the Above statute:

(i) The officer in the first instance has to confiscate the offending goods by passing an adjudication order.

(ii) An option to pay fine in lieu of confiscation of the goods as per discretion of the adjudicating officer is to be given to the owner of the goods.

(iii) That it is the privilege of the Federal Board of Revenue to specify the goods or class of goods where such option may or may not be given to the owner along with the pitch of fine in lieu of confiscation in respect of these goods for violation of provisions of section 15 or the notification issued under section 16 or any other law for the time being in force.

The above provisions categorically pre-suppose the presence of the goods on which fine in lieu of confiscation is to be imposed for their release. In other words fine in lieu of confiscation also termed "redemption fine" ordains the availability of the goods with the customs authorities and which could be released/redeemed after their confiscation by the concerned officer against payment of fine in lieu of their confiscation. The word redemption has been defined in Webster Third Dictionary Vol. as under:--

"(a) to repossess upon fulfillment of an obligation; specify to free (property) from a lien or encumbrance and regain absolute title by payment of an amount secured thereby or by performing the condition securing the same."

The presence/availability of goods is a condition precedent, a pre-requisite for confiscation of the goods and their release against payment of fine in lieu of confiscation. As contested by the Advocate of the respondent, the availability/presence of the goods cannot be made possible by the F.B.R. or any authority through a legal fiction as in the case of presumptive regime of taxation. The making possible of availability of goods through a legal fiction on the analogy of determination of income in terms of the hallmark judgment of the Hon'ble apex court in the case of Messrs Elahi Cotton reported as PLD 1997 SC 582 is not possible in the subject case by any stretch of imagination.

23. As regards presumptive regime of taxation the same is based on the notional concept of income as against real concept of income and is somewhat similar to Brussels' Definition of Value (BDV) under the notional concept of value. In addition the Presumptive Regime of Taxation has been, incorporated in the relevant statutes of Income Tax Ordinance. The general effect of deeming provisions in a taxing statute is that it brings within the tax net an amount which ordinarily would not have been treated as an income. In other words it brings within the net of chargeability of income which has not actually accrued but which supposedly to have accrued notionally. That when a person is deemed to be something the only meaning possible is that whereas he is not in reality that something, the act required him to be treated as he was with all inevitable result of that state of affairs. That the legal fictions are limited for definite purpose, they cannot be extended beyond the purpose for which they are created. However when a statue annexed that something shall be deemed to have been done which in fact and truth was not done the court is entitled and bound to ascertain for what purposes and between what persons the statutory function is to be resorted to. In the background of the above principles governing the presumptive regime of taxation with particular reference to deeming provisions and legal fictions, it is pointed out that under no circumstances and by no stretch of imagination Federal Board of Revenue or even for that matter the Government of Pakistan is competent to create a legal fiction whereby the goods which are not available for confiscation by the customs officers can be confiscated in the first place and thereafter released after imposition of fine in lieu of their confiscation. The determination of income under the presumptive regime through legal fiction on notional basis becomes possible through reliance on primary, secondary, circumstantial and extraneous evidence. However, making goods available in their physical/material state is not the work of fiction since nothing short of magic can make the goods available in physical form for confiscation in the first instance and thereafter giving an option to the taxpayer for their release against payment of fine in lieu of their confiscation. In fact though the relevant amending S.R.O. 202(I)/2008 dated 1-3-2008 was issued by Federal Board of Revenue in terms of section 181 of the Customs Act, 1969 but in patent contradiction with its principal provisions and also with ground realities.

24. The statutory/mandatory provisions enumerated in section 181 of the Customs Act, 1969 regarding availability of goods for their confiscation and subsequent release against fine in lieu of their confiscation gain strength from the decision of Hon'ble Lahore High Court in Writ Petition No.10941 of 2002 dated 19-10-2002 in the case of Muhammad Aslam Kalia v. Deputy Collector of Customs and others. The Hon'ble High Court in para.2 of the aforesaid order observed as under:

"(2) Learned counsel for the respondent department has argued that the redemption fine continues to remain recoverable by the department even though the goods, which were to be redeemed upon payment of such fine, no longer exist having been sold in auction. This contention, I am afraid, is without merit. The petitioner was to pay the redemption fine only in lieu of actual redemption of goods initially confiscated. Since the goods, as noted, do not exit and are not available with the Customs Department, there is no question of 'any redemption and, therefore, redemption fine."

The same principle has been followed by the Customs, Excise and Sales Tax Appellate Tribunal Lahore in Customs Appeal No. 188/LV/2002 vide their judgment dated 13-1-2004. The relevant paras. 2, 3 and 4 are reproduced below:--

"The case was heard on different dates. The pith and substance of the learned counsel's arguments was that the goods allowed to be redeemed on payment of fine of 10% in lieu of confiscation by the Tribunal were not available and hence the 10% fine in lieu of confiscation could not be deducted from the sale proceeds. He cited judgment dated 9-10-2002 of honourable Lahore High Court in identical cases in Writ Petition No.10941 of 2002 wherein it was held that "the petitioner was to pay the redemption fine only in lieu of actual redemption of goods initially confiscated. Since the goods, as noted, do not exist and are not available with the customs department there is no question of redemption and, therefore, redemption fine". According to learned counsel, in pursuance of the said order of the honourable Lahore High Court the concerned customs authorities had allowed the sale proceeds without deduction of redemption fine. They also referred to another case relating to Shahid Enterprises Lahore (bill of entry No. 00539 dated 4-11-1998) wherein the Lahore Dry Port Customs Authorities had allowed sale proceeds vide their file No.V-Cus-14/CP/Ref./ 34/02 without deduction of redemption fine .from the sale proceeds. He prayed that order dated 12-2-2002 of the Tribunal may be clarified to the extent that in case of refund of sale proceeds, 10% redemption fine shall not be deducted therefrom since the goods allowed to be redeemed were not physically available.

(3) The learned SDR opposed contentions of the learned counsel and contested that after confiscation, the goods vested with the Federal Government which could dispose of the same and hence according to him, the provisions of section 201 of Customs Act 1969 would not apply on confiscated goods and there could be no question of refund of sale proceeds.

(4) We have heard contentions of both sides and perused the miscellaneous application along with the connected appeal file. As held by the honourable Lahore High Court vide its judgment dated 9-10-2002 in Writ Petition No.10941-2002 and also subsequently followed by the Customs Authorities in the case relating to Shahid Enterprises Lahore (File No.V-Cus-14/CP/34/02), it is clarified that in absence of the goods to be redeemed on payment of fine in lieu of confiscation, 10% fine allowed to be paid in lieu of confiscation by the Tribunal vide its order dated 12-2-2002, is not to be deducted for the sale proceeds."

25. In addition to the above, section 181 empowers the Federal Board of Revenue to determine the pitch/extent of fine in lieu of confiscation of goods pertaining to any specific goods or class of goods. Though legislature has unlimited powers to legislate both prospectively and retrospectively both in letter and spirit, the provisions of section 181 of the Customs Act, 1969 do not specify as to whether the Federal Board of Revenue can determine and order imposition in lieu of confiscation by adjudicating officer retrospectively since only remedial and curative legislation operates retrospectively unless and otherwise specified. Even if it is considered for arguments' sake that Federal Board of Revenue has power to legislate the determination of pitch of fine in lieu of confiscation from a retrospective date by a customs officer, then too, the provisions of amending S.R.O. 202(I)/2008 dated 1-3-2008 are in contradiction with the parent section 181 which pre-supposes the availability/ presence of offending goods for confiscation in the first instance and thereby giving of an option against imposition fine in lieu of their confiscation and finally their release against payment of the fine imposed. There is an apparent/patent contradiction in the provisions enumerated in section 181 of the Customs Act, 1969 and S.R.O. 202(I)/2008 dated 1-3-2008 issued thereunder. It is well settled law that statutes, if in contradiction with the subordinate legislation, would prevail upon the subordinate legislation as decided by the Hon'ble apex Court in the judgments reported as PLD 1989 SC 222, PLD 1995 SC 423, 1982 SCMR 522, 1985 SCMR 365, 2005 SCMR 186 and 2000 PTD 399.

26. In view of the above discussion, the impugned orders passed by the two forums below are palpably unlawful and illegal. As such they same are set aside and the subject appeals are according allowed.

H.B.T./169/Tax(Trib.) Appeals allowed.