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Order with signature of Judges
Present:
Mr. Justice Faisal Arab.
Mr. Justice Aqeel Ahmed Abbasi
1. For orders on CMA No.2336/11.
2. For Katcha Peshi.
07.03.2012
Mr. Sohail Muzaffar, advocate for the applicant.
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Aqeel Ahmed Abbasi, J: The applicant being aggrieved and dis-satisfied with the impugned order dated 08.07.2011 passed by the Customs Appellate Tribunal, Karachi, whereby the appeal of the applicant was dismissed, the applicant has filed instant reference application.
2. Following questions of law are said to have arisen from the impugned order:
1. Whether the adjudication proceedings and all proceedings which followed were in violation of CGO: 10/1972?
2. Whether any charge of even mis-declaration under Section 32 of the Customs Act, 1969 can be established without referring the metal for Chemical examination by either Steel Mill or Pakistan Engineering Board?
3. Whether the provisions of Section 32-A of the Customs Act, 1969 were attracted and whether the applicant committed any fiscal fraud in terms of Section 32-A of the Customs Act, 1969?
4. Whether the applicant was afforded an opportunity to defend his case and whether the applicant was treated in accordance with law?
5. Whether the fundamental right of the applicant was violated and the applicant was not given the fair trial?
3. Brief facts as recorded by the learned Tribunal in the impugned order are that the applicant imported a consignment consisting of 334 cartons of Mortise Locks and Iron Hinges with screws from China and filed a Good Declaration dated 16.9.2006 for clearance thereof through clearing agent declaring import value US $2367.60 gross weight 8395 kgs and net weight 8061 kgs. The said GD was referred to the examination staff under 1st appraisement system by the concerned group and it was reported that the goods were examined at shed No.2 East, Wharf, Kemari in the presence of representative of the clearing agent and others. On opening of the container, another original invoice and packing list bearing the same invoice number, description, specifications and quantity of locks, Hinges and screws showing actual import value i.e. US $ 50663.50 was found as against the value declared in the aforesaid fake import invoice submitted by the applicants at the time of filing the GD. It was further observed that the Iron hinges with screws were copper coated. The original invoice was recovered against proper musheernama prepared at the time of examination in the presence of independent musheeers/witnesses, as the representative of the clearing agents fled away on discovery of invoice from the container. The said goods were seized under section 168 of the Customs Act, 1969 and it was reported that the import value shown in the invoice filed by the applicant was 2140.40% less than the actual import value shown in the invoice found during the course of examination thus the original import invoice of actual value had not been found, the national exchequer would have suffered a loss of its legitimate revenue to the tune of Rs.1622972/-. In consequence of the adjudication proceedings, the adjudicating authority passed the order-in-original against the applicant.
4. The applicant being aggrieved by the order-in-original passed by the Adjudicating Authority filed an appeal before the Collector of Custom (Appeals), who vide his order in Appeal No.275/2007 dated 29.5.2007 dismissed the appeal. The applicant feeling aggrieved by such order preferred an appeal before the learned Customs Appellate Tribunal, Karachi, who vide impugned order dated 08.07.2011 once again dismissed the appeal of the applicant, whereafter the applicant has approached this Court through instant reference application under Section 196 of the Customs Act, 1969 by raising the questions as referred to hereinabove.
5. The learned counsel for the applicant has submitted that no mis-declaration was made by the applicant as wrongly held by the forums below, whereas the learned Tribunal also fell in error by not sending locks and hinges to the EDB or Steel Mill or any other expert for determination of their actual value. Per learned counsel, the goods were legally imported by submitting proper declaration of value, whereas the respondent malafidely assessed the value of the imported goods at an exorbitant rate in order to make out a case of mis-declaration.
6. We have heard the learned counsel for the applicant and also perused the record with his assistance. From perusal of the record, it has come on record that the applicant imported a consignment consisting of 334 cartons of Mortise Locks and Iron Hinges with screws from China vide IGM No.1523/06 dated 28.8.2006 and Index No.145. The goods declaration bearing machine No.36319 dated 16.9.2006 alongwith import invoice No.MO6AZ004 dated 02.08.2006 of M/s Shanghai Shoudeng Industrial Co. Limited China, was filed for clearance though their clearing agent declaring import value as US$ 2367.60 gross weight 8395 kgs and net weight 8061 kgs. It appears that the said goods declaration was referred by the concerned Appraisement Group to the examination staff under 1st Appraisement System. The examination was conducted by the Examining Officer in the presence of clearing agent of the importer, their representative and others. On opening of the container, original invoice and packing list of M/s Shanghai Shoudeng Industrial Co. Limited China, was found, bearing the same invoice number, description, specifications and quantity of Locks, Hinges and Screws showing actual import value i.e. US$ 50663.50 as against the value declared in the aforesaid fake import invoice submitted by importer at the time of filing goods declaration. It was further found that iron hinges with screws are copper coated. The goods were accordingly seized under Section 168 of the Customs Act, 1969, after complying with the all legal formalities and the applicant was confronted through a show cause notice dated 24th November 2006 by the Adjudicating Authority. The explanation offered by the applicant was not acceptable to the Adjudicating Officer, who passed the order-in-original No.2/27 dated 20.02.2007, wherein it was held that the applicant has mis-declared the value of the imported consignment and caused loss of its legitimate revenue to the tune of Rs.16,229,72/- i.e. customs duty Rs.746647/- plus Sales Tax Rs.559987/-, Income Tax Rs.257595/- and Additional Sales Tax Rs.58743/-. It may be noted that the adjudication of the case by the authorities has been made on the basis of material available on record particularly the original invoice and packing list found in the container alongwith consignment, which was opened in the presence of the representative of the applicant, whereas no valuation of their own has been made by the custom authorities. The learned Customs Appellate Tribunal has concurred with such finding of fact recorded by two forums, whereas the applicant has not been able to point out any discrepancy or error in such finding, except denying such facts. No question of law has been proposed, wherein it has been alleged that the concurrent finding of fact recorded by the forums below is either perverse or has been recorded without reading evidence. Moreover, the value of imported consignment consisting of 334 cartons of gross weight being 8395 kgs at US$2367.60 is even otherwise absurd as on such rate even iron scrap cannot be imported.
7. In view of hereinabove, we do not find any error in the impugned order, which is based on proper appreciation of facts and correct application of law. The applicant has not been able to make out a case requiring any interference by this Court in its reference jurisdiction, whereas the decision of the learned Tribunal is based on concurrent finding of fact which cannot be altered by this Court unless found to be perverse. No material was produced by the applicant before the custom authorities to justify their act of mis-declaration nor any material has been shown to as in support of applicant’s claim. Reference in this regard can be made to the judgments of the Hon’ble Supreme Court in the case of Lungla (Sythet) Tea Co. v. CIT (1975) 31 Tax 64 SC, S.M. Ilyas & Sons v. CIT PLD 1982 SC 259, Japan Storage v. CIT 2003 PTD 2849 and CIT v. NIT 2003 PTD 589.
8. Accordingly, instant reference application is dismissed in limine alongwith listed application, however, with no order as to cost.
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