COLLECTOR OF CUSTOMS VS BASHIR SONS, 2016 PTD-KARACHI-HIGH-COURT-SINDH 2902 (2016)

Customs Act (IV of 1969)---

----Ss.32(1)(2), 79(1), 80 & 196---Reference---Factual controversy---Concurrent findings of facts by two forums below---Mis-declaration---Physical description---Authorities were aggrieved of concurrent findings of facts made by Collector (Appeals) and Customs Appellate Tribunal with regard to PCT classification of consignment in question---Validity---Questions proposed by authorities were questions of fact and did not give rise to any legal question arising from order passed by Customs Appellate Tribunal---Concurrent findings of fact were recorded by both appellate forums relating to classification of HS Code, which otherwise referred to a factual controversy and only in exceptional cases could give rise to legal controversy---Factual disputes could not be ascertained by High Court while exercising Reference jurisdiction under S. 196 of Customs Act, 1969---Reference was dismissed in circumstances.

Kashif Nazeer for Applicant.

ORDER

AQEEL AHMED ABBASI, J.---Through instant Special Customs Reference Application, following questions have been proposed, which according to learned counsel for the applicant, are questions of law arising from the impugned order dated 18.06.2015 passed by the Customs Appellate Tribunal, Bench-III, Karachi in Customs Appeal No. K-431/2015/6075:--

"(i) Whether the impugned order dated 18.06.2015 of the learned Customs Appellate Tribunal passed order in Customs Appeal No. K-431/2015 is not against the provisions under Sections 32(1), 32(2), 79(1) and Section 80 of the Customs Act, 1969 on the mis-declaration of classification on import of Double Sided Insulation Tape by the respondent?

(ii) Whether on the facts and circumstances of the case the learned Appellate Tribunal erred in law to treat that the change of physical description, the goods found Double Sided Sealing Tape and PCT classification of the goods is not a "mis-declaration within the meaning of Section 32 of the Customs Act, 1969?

(iii) Whether due to the change of the physical description and PCT classification of the goods the importer/respondent is not liable to pay the duty and taxes as per correct and lawful PCT heading of 3919.1090 attracting @ 20% Customs Duty?

(iv) Whether keeping in view the spirit of sections 32 and 80 of the Customs Act, 1969 in this case of patent mis-declaration case of physical description and PCT heading the Appellate Tribunal erred in law to observe that the Classification Committee is not authorized to determine the correct classification?

(v) Whether in view of the established facts and relevant provisions of law, the findings of Chairman of the Appellate Tribunal are not perverse for non-reading and/or mis-reading of the available record to the detriment of revenue and the consequent benefit to the respondent importer on the basis of leniency?"

2.Learned counsel for the applicant has read out the impugned order passed by the Appellate Tribunal in the instant case as well as the order of the Authority below and submits that the Collector (Appeals) and the Customs Appellate Tribunal were not justified to hold that double sided insulation tape imported by the respondent was rightly declared under PCT Heading 3919.1010, as according to learned counsel, it was classifiable under Heading 3919.1090. It has been prayed that questions proposed are questions of law, which may be answered in negative in favour of applicant.

3.We have heard the learned counsel for the applicant, perused the impugned orders passed by the Appellate Tribunal and the Collector (Appeals) and have observed that the findings as recorded by the Collector (Appeals) as well as Customs Appellate Tribunal in the instant case with regard to PCT classification of the consignment imported by the respondent is based on appreciation of facts, whereas, no legal question arises for determination by this Court. It will be advantageous to reproduce the relevant findings of the Collector (Appeals) and the Customs Appellate Tribunal respectively, which read as follows--

Collector (Appeals)

"3. I have examined the case record. The appellants have imported self adhesive double sied tape made of plastic, which is specifically classified under heading 3919.1010. The samples were also presented during hearing. The tape is used for sealing of plastic bags of garments. The respondents on the other hand have been claiming that heading 3919.1010 pertains to insulation tape which is used for electric insulation, therefore it should be classified under heading 3919.1090. The argument by respondents does not carry weight as insulation function is not restricted to electric works only, the insulation can be protection from any harmful effects; which in this case would be saving the garments from dust, liquids etc. it is accordingly ruled that appropriate classification of the goods is 3919.1010 in view of GIR(1) to the HS Code. The assessment is set aside and appeal is allowed.

Customs Appellate Tribunal

6. Both sides have been heard and record perused. The goods imported and declared are 'Double Sided Insulation Tapes' classifiable under PCT heading 3919.1010. The same description and features have been confirmed by the customs examination staff. According to Pakistan Customs Tariff, double Side Insulation Tape' is classifiable under HS Code 3919.1010 and not under 3919.1090 as claimed by the department. The respondent importer also contended that the identical goods had, as a matter of practice, been classified by the department under HS code 3919.1010. The appellant - department did not contest this. It has also been informed by the appellant - department that the public notice bringing about the change in the classification from 3919.1010 to 3919.1090 has not been issued by the Custom House hitherto, as a result of the decision of PCT Committee holding that the goods are classifiable under the latter HS Code.

7. For the above reasons, I find that the goods in this case are appropriately classifiable within HS Code 3919.1010. I therefore find no fault with the impugned order-in-appeal which is hereby upheld and confirmed. The appeal filed by the department is accordingly dismissed without having any merits."

4.From perusal of hereinabove concurrent findings as recorded by the two appellate forums, it appears that the reference filed by the applicant department by proposing above questions as questions of law is misconceived, whereas, before the Customs Appellate Tribunal, the applicant department did not even contest or disputed such factual position as decided by the Collector (Appeals) while holding that the double sided insulation tape imported by the respondent is classifiable under HS Code 3919.1090 and not 3919.1010 as claimed by the department. It has been observed that the applicant department has also not disputed the fact that description and features of the subject goods were duly confirmed by the Customs Examination Staff, whereas as per Pakistan Customs Tariff, "Double sided insulation tape" is classifiable under HS Code 3919.1010.

5.In view of hereinabove facts and circumstances of the case, we do not find any substance in the submissions made by the learned counsel for the applicant, whereas, the questions as proposed hereinabove are questions of fact and do not give rise to any legal question arising from the impugned order passed by the Customs Appellate Tribunal. Moreover, concurrent finding of fact has been recorded by both appellate forums relating to a classification of HS Code, which otherwise refers to a factual controversy and only in exceptional cases can give rise to a legal controversy. The factual dispute as referred through instant reference application cannot be ascertained by this Court while exercising reference jurisdiction under section 196 of the Custom Act, 1969. Accordingly, instant Special Customs Reference Application is dismissed in limine along with listed application.

MH/C-13/Sindh Reference dismissed.