AG INTERNATIONAL, KARACHI VS DEPUTY COLLECTOR OF CUSTOMS (R&D), MODEL CUSTOMS COLLECTORATE OF APPRAISEMENT (EAST), KARACHI, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1669 (2017)

Customs Act (IV of 1969)---

----Ss. 32, 79 & 80---Mis-declaration of origin of goods---Declaration of goods classifying under H.S. Code 5407.6100---Importer determined liability of duty/taxes accordingly and paid the same at the time of filing of declaration---Declaration was selected for scrutiny and was sent for physical examination---Examination of goods (conducted twice), transpired that the importer had mis-declared the origin of the imported goods and that said goods were banned for import as per the Import Policy---Adjudicating Officer vide order-in-original, found that charges against the importer were established---Examination conducted by department confirmed the declared description and weight of the consignment, however, it was observed that on some bales were found with a label indicating that the consignment was of "Indian" origin---Department, had attended the case in an extremely non-professional manner---First Examination Report clearly showed "Origin Not Shown"---Said report, no doubt, mentioned about a label pasted on some bales showing the origin of the consignment as Indian, but, it pertained to some other container, which did not relate to the importer---Second examination report, also mentioned about the labels, but that time reference to container number was deliberately avoided, which reflected intellectual dishonesty on the part of the department---All the relevant facts as given in both the examination reports, were tallying with those given in the goods declaration by the importer---Adjudicating Authority, had not been able to look into detailed distortion of the facts by the department, by passing a cursory judgment comprising six lines in sheer violation of S.24-A of the General Clauses Act, 1897---Show-cause notice issued to the importer, as well as the impugned order-in-original, being void ab initio, were set aside, in circumstances.

Nadeem Ahmed Mirza, Consultant for Appellant.

Nisar Ahmed, Appraising Officer for Respondent.

Date of hearing: 20th August, 2017.

JUDGEMENT

MUHAMMAD NAZIM SALEEM, MEMBER (TECHNICAL-II), KARACHI.---This Judgment disposes of Customs Appeal No.K-1702/ 2016 filed by the Appellant against Order-in-Original No.560069-09082016, passed by the Additional Collector of Customs Adjudication), Custom House, Karachi.

2.Brief facts of the case as reported in the impugned Order-in-Original are that the Appellant imported a consignment declared to contain 'unfinished grey fabric' weighing 16,800 kgs, from China and filed electronic Goods Declaration bearing Machine Number KAPE-HC-115178-22-02-2016 under section 79(1) of the Customs Act, 1969. They classified, the imported consignment under HS Code 5407.5100 and declared invoice value as US$ 1,680/-. The Appellant determined his liability of duty/ taxes accordingly as Rs.36,647/- and paid the same at the time of filing of Goods Declaration.

3The concerned Assessment Group, in order to verify the Appellant's declaration and to ascertain the amount of duty/ taxes payable thereon, selected the under-reference Goods Declaration for scrutiny under section 80 of the Customs Act, 1969 and sent the same for physical examination. Examination Report revealed that the Appellant's goods declared to be of Chinese origin and shipped from UAE, were actually of Indian Origin. The Examination Report is reproduced hereunder;

"Container No: GATU8497628, GD No: KAPE-HC-115178-22-02-2016 Documents not found. Examined the goods with GD retrieved from the system. Description. Polyester grey undyed/ unfinished fabric for ladies shirting in bales. Net wt approx 16900kgs. Origin not shown. It is pointed out that on some bales a label showing container No. BMOU6036471, quantity 234 ctns and on one bale a cargo stack card pasted which shows the following details: DBC Port Logistics Ltd. CFSJNP Sonari Village, Taluka, Uran, Navi Mumbai - 400 707 India. Export Division Cargo Card, Agency Name: SHREE SAMARTH, Shipping Bill No. 4051497 09/11/15, CHA Name: Motherland Shipping. Export Shed No 03, Cargo Description: Fabric. The quality of all the fabric is same which reflect that whole consignment is of India origin. Group is requested to check all aspects keeping in view the ER to ascertain the origin of the goods. Rep sample drawn and forwarded to CH lab for confirmation of actual desp, HS code and all other aspects. Rep sample also forwarded to group for inspection and further confirmation thereof. 100% wt checked vide PICT wt slip No. 426548 dated 23.02.2016 and found 17190kgs. Wt slip scanned images attached."

4.Being dissatisfied with the above Examination Report, the Appellant approached for second examination which was conducted in joint collaboration of R&D Section of the Collectorate, which confirmed the first Examination Report, in the following terms:

"Container No. GATU8497628, GD No. KAPE-HC-115178-22-02-2016 inspected and examined jointly with (R&D) staff. Description of goods: polyester ladies chiffon undyed fabric packed in bales, net wt: 16900 Kgs approx, it is pointed out that during the course of physical examination of container indicated above, found some label pasted on bales showing address as "dbc port logistics ltd, cfsjnp shonary village, taluka uran, navi mumbai-400 707 India, export division cargo stack card, agency name: shree samarth, shipping bill No. 4051497 09.11.2015, cha name: motherland shipping, export shed No. 03, cargo description: fabric." it is pertinent to mention here that all quality of goods are same as mentioned above, which reflects that this consignment has been shipped from India. Moreover, representative samples of this consignment have already been forwarded to custom house laboratory for test, however, group may check the aspect of importability besides, actual description of the goods (whether dyed or undyed), in the light of test report, check weight 100% vide PICT order vide weight slip No. 426548 dated 23.02.2016 and found weight 17190 kgs. Image."

5.Evidently, Examination (conducted twice) transpired that the Appellant misdeclared the origin of the imported goods, the goods (weighing 16,900 KG) being banned for import under S. No. 363 of Appendix-G of the Import Policy Order, 2013, read with Para-5(B)(iii) ibid. Value of the offending goods is worked out to be Rs.6,682,619/-. The Appellant were called upon to Show-Cause as to why the goods imported through under reference Goods Declaration may not be confiscated, being in violation of the provisions of law and as to why further fine/penalty may not be imposed upon them under the relevant provisions of law.

6.The adjudicating officer vide Order-in-Original No.560069 dated 9.8.2016 held that the charges against the Appellant are established. The operative part of the impugned order reads as under:--

"I have gone through the record of the case and seen the images of the impugned goods and submissions made on behalf of the respondents in writing as well as verbally. The arguments of the representative of the department were also heard. I conclude that the charges levelled in show cause notice stand established and the impugned goods are ordered to be confiscated outrightly without extending any option for redemption of good. Further, a penalty of Rs.100,000/- is imposed on the importer under Clause 9 of section 156 of the Customs Act, 1969."

7.Feeling aggrieved and dissatisfied with the above Order-in-Original, the Appellant filed an Appeal before this Tribunal on the following main grounds:-

(i)The respondent No. 1 and his subordinate are indeed vested with the powers to detain the goods under Section 186 of the Customs Act, 1969 for better appreciation verbatim of the same is reproduced here-in-below:

186: Detention of Goods pending payment of fine or penalty;--(1) When any goods or fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or pending any inquiry or investigation, in respect of any goods such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed.

(2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any goods belonging to the same owner pending of such fine or penalty.

Upon conscientious analysis of section 186, it is abundantly clear that the said section comes into play during the course of imports, meaning thereby if any case has been adjudicated by the competent authority against an importer and through which the authority held the charges established as levelled in the show-cause notice and impose fine and penalty, and the importer has not paid the leviable duty, taxes, fine and penalty. The appropriate officer is empowered to detain the forthcoming goods of the same owner till the time the adjudged amount of duty, taxes, fine and penalty are not paid. The case of appellant is that his goods were lawfully clear by the competent authority and against him no case is pending wherein fine or penalty has been imposed, therefore his consignment could not be detained on any pretext under the provision of section 186 of the Customs Act, 1969 and this stood validated from reported judgment (2015 PTD 560), O.S. Corporation v. FOP and others in which it has been held in categorical terms that "where no fine or penalty has been imposed or is even under consideration the provision of Section 186 are not relevant" and "the authorities acting on a hunch have detained goods at the exit gates even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totally contrary to the provision of the Act, 1969."

(ii)That the respondent No. 1 put on hold/detained the consignment of the appellant on 29.02.2016 014 Such hold tantamount to notional seizure as held by High Court of Sindh in reported judgment (2003 PTD 2821) Syed Muhammad Razi v. Collector of Customs (Appraisement), Karachi and 2 others in the following words:

"A careful consideration of section 168(1) and section 2(rr) leads to the conclusion that the word "possession" is not confined to the physical possession and is inclusive of constructive possession as well. We are further of the considered opinion that the seizure of goods cannot be confined to the cases where an order in writing in this behalf is made but is inclusive of notional seizure as well, meaning thereby, that if the customs officials has not passed any specific order in writing about the seizure of goods but has verbally given instructions or by his conduct has made the release for removal of goods under restraint thereby depriving to the owner of the goods of exercising all the incidents of the right had title and interest in the goods, it would also amount to seizure of goods within contemplation of section 168(2) of the Customs Act.

(iii)That by virtue of notional seizure the provision contained in sections 171 and 168 of the Customs Act, came into operation. Meaning thereby in the case of seizure of goods under section 168 the reason are to be recorded under section 171 and communicated to the person from whose possession the things are seized and the notice under section 180 of the Customs Act, 1969 by the authorities vested with the powers under section 179 ibid is also required to be issued within 2 months of the seizure of the goods subject to extension for further two months based on exceptional circumstances by the Collector of Customs after giving notice to the respective person as per law laid down by the Supreme Court of Pakistan in reported judgment 1999 SCMR 1881 Khalid Mahmood v. Collector of Customs, Custom House, Lahore. In the instant case the initial period of two months stood lapsed on 29.04.2016, no extension either was asked for or accorded by the Collector of Customs, prior to expiry of initial period and this stood validated from the order-in-original itself, which is silent in this regards. Since, no show-cause notice has been issued on or before 29.04.2016 in this case instead on 10.05.2016 rendering it barred by time by 12 days , hence it is without power/jurisdiction, therefore, void and ab initio as held by Superior Court in umpteenth judgment e.g. 1998 MLD 650, 2005 PTD 23, 2003 PTD 2821 and 2007 PTD 2092.

(iv)That in the show-cause notice the respondent No. 3 have invoked the provision of sections 32(1), (2) and 32A of the Customs Act, 1969, which speaks about mis-declaration. The authority to adjudicate cases relating to these sections rest with Collectorate of Customs, Adjudication in terms of SRO 886(I)/2012 dated 18.07.2012. To the contrary, the respondent No. 3 laid hands on the Sovereign Territory of Collectorate of Customs, Adjudication. The said act is transgression of powers and renders the show-cause notice and order-in-original without jurisdiction, void and ab-intio as held in reported judgment PLD 1975 SC 331, S.T. Appeal No. 984/98, S.T. Appeal 72/04, S.T. Appeal 54/09, S.T. Appeal No. 2352/99, S.T. Appeal No.106/03, 2002 CLC 705, 2004 PTD 624, 2004 PTD 3020, 2007 PTD 1895, 2009 PTD (Trib.) 1925, 2005 PTD (Trib.) 135, 2010 PTD (Trib.) 759,2010 PTD (Trib.) 1283, Customs Appeal No.K-44/ 2010 and Customs Appeals Nos. K-435/08 to 455/08, 2010 PTD (Trib) 2523 and K- 638/2010-727/2010.

(v)The expression of section 179 of the Customs Act, 1969 is very clear in regards to determination of the powers of the Adjudicating Authority on the basis of "amount of duty and taxes involved excluding the conveyance." Not "amount of evaded duty and taxes". In this case the amount involved is Rs.36,647.00. The competent authority to adjudicate the case of said amount under clause (vi) of section 179 (1) is Principal Appraiser. To the contrary, respondent No. 3 has issued the show-cause notice and passed order-in-original while usurping the powers of his subordinate. This is not permitted under law, hence, the show-cause notice suffer from lack of powers. Therefore, ab-initio void and so the superstructure built thereupon in the shape of subsequent order as held in Sales Tax Appeal No. 444/03, S.T.A. 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514 , 1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636.

(vi)That it is also imperative for the appellant to add further that neither respondent No. 3 nor any other authority is empowered to issue show-cause notice in the case, where there exist no revenue loss because the leviable duty and taxes after resolution of the dispute, upon receipt of view message an importer invariably pays and obtained delivery. The aspect of determination of importability rest upon the Principal Appraiser, which he determines at the time of passing assessment order under section 80 of the Customs Act, 1969 and Rule 438 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001, in exercise of the powers vested upon him under the said section through Notification No. 371(I)/2002 dated 15.06.2002. (Exhibit "O"). Meaning thereby that he is the only authority to proceed in the matter instead of respondent No.3. It is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. In Serial No. 80 of SRO 371(I)/2002 dated 15.06.2002, rendering the show-cause notice as well as the anticipated to he passed order-in-original without power/jurisdiction, hence null void and ab-initio and this have been held in countless reported judgements by the Superior Judicial Fora, refer to Lt. General (Retd.) Shah Rafi Alam v. Lahore Race Club, 2004 CLD 373 Khalid Qureshi v. UBL 2001 SCMR 103, East West Steamship v. Queen Land Insurance PLD 1963 SC 663, Sahibzada Sharfuddin v. Town Committee 1984 CLC 1517, Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587, Assistant Director v. B.R. Herman Mohata Ltd. PLD 1992 SC 485, Central Insurance v. CBR 1993 SCMR 1232, S.T. Appeal No. 176/2007 M/s. Muller and Phipps Pakistan (Pvt.) Ltd. v. The Collector of Sales Tax Enforcement LTU, Karachi and 2011 PTD (Trib.) 2114 Collector of Customs, Peshawar v. Collector of Customs (Appeals) Peshawar and 2011 PTD (Trib.) 2557 M/s. Wawa Garments Industries (Pvt.) Ltd. v. The Additional Collector of Customs, Export, Karachi and Order in Custom Appeal No. H-510/2008 Dewan Farooque Motors Ltd v. Collector of Customs(Appeal) and 2014 PTD 199 Collector of Customs, Lahore v. South East Trading.

(vii)Notwithstanding, to the referred in above grave illegality, it is worth stating that the respondent No. 3 is not familiar with the Sales Tax Act, 1990 and Income Tax Ordinance, 2001 and this stood validated from the fact that he has invoked Section 11C of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001, without realizing that these are not penal clauses instead charging and machinery Section respectively, charge under section 11(c) can be made by the authority referred therein and section 148 contains the procedure for collection of Income Tax at import stage by the authorities referred therein. Meaning thereby that the said sections are independent under which no charge can be invoked. The authority to take cognizance of the charging section rest with the Officer of Inland Revenue. No show-cause notice can be issued under these sections. Issuance of show-cause notice on the basis of irrelevant sections renders the show-cause notice void and ab-initio and of no legal effect as held in reported judgment judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593, Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs.

(viii) That even otherwise respondent No.3 is not appointed as Officer of Inland Revenue under section 30 of the Sales Tax Act, 1990 and section 207 of the Income Tax Ordinance, 2001 and as such is not empowered to issue show-cause notice and pass order-in-original relating to matters 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. Hence, by issuing show-cause notice with the inclusion of amount of Sales Tax and Income Tax, respondent No. 3 usurped the power of Officer of Inland Revenue to which he is not vested, Rendering the show-cause notice as well as order-in-original being in flagrant violation of law and as such coram non-judice as held in Order in Sales Tax Appeal No. 444/03, S.T.A. 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514,1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112, 2010 PTD 465 and 2010 PTD (Trib.) 1636, 2011 PTD 1Trib.) 110, 2010 PTD (Trib.) 2086, Customs Reference No. 01/2010, 2014 PTD (Trib.) 299, 2004 PTD 801, C.P. No. D-216/2013, 2014 PTD 1963, 2015 PTD 702, 2016 PTD (Trib.) 925, 2016 PTD (Trib.) 969, 2016 PTD (Trib.) 843, 2016 PTD (Trib.) 1008.

(ix)That no mis-declaration in material particular has been made by the Appellant in any aspect and this stood validated from the Invoice, B/L Certificate of Origin, veracity of which has not been disputed by the respondent and declaration to the extent of description, weight and PCT stood validated from transmitted examination report and test reports. No finding of falsity is visible in this entire act of appellant and. Resultant invoking of sections 32(1), (2) and 32A is misplaced. This lapse renders the show-cause notice and order-in-original suffer from legal infirmity and as such of no legal authority, hence, ab-initio and void.

(x)That there exists no illegality in importing goods of China origin from the company of UAE, it is International Trade practice, majority of the buying and selling houses have their offices either in Hong Kong, Singapore or UAE, from where they book orders for their principle for shipment of their product or procure different goods from different countries and supply to their buyers. Since, appellant was not knowing any company in China, beside he was not assure that the goods desired by him shall be of those specification, resultant, he felt appropriate to place order with the company of UAE, which took guarantee of supply of the goods as per specification and within time and on credit basis.

(xi)That appellant has no concern as to whether the seller-ship the goods directly from the Port of China or from UAE after importing in transit in UAE for shipment to Pakistan. The goods imported by the appellant are from UAE and are of China origin and this stood validated from the certificate of origin No. 16C 3307Y0746/0087 dated 24.02.2016, issued by the China Council for Promotion of International Trade and of Dubai Chamber of Commerce bearing No. 15810757 dated 22.02.2015 which the seller mailed him after the respondent without any lawful authority raised the issue of origin and this was due to the % that it was verified by the respondent No. 1 online from the Internet Authentication Centre of China Council of Promotion of International Trade.

(xii)That by submitting the documents of export and their verification, the appellant discharged the initial burden laid upon him and the onus of burden to prove the allegation stood shifted on the shoulders of the respondent Nos. 1 and 3 under Articles 117 and 121 of Qanun-e-Shahadat (10 of 1984) as per laid down law by the Superior Courts of Pakistan namely S.M. Anwar Sethi v South British Insurance Company Ltd. PLD 1975 Kar. 458; Barkat Ali v. The State PLD 1973 Kar. 659; Cross on evidence 1967, 3rd Edn., London Butterworth; A Practical Approach to Evidence by Peter Murphy 1988 3rd Edn. London, Black Stone Press Ltd; The Modern Law of evidence by Adrian Kean 1985, 1st Den. Oxford , Professional Books Ltd; Mst. Safia Begum v. Mst Malkani and another PLD 1965 Lah. 576; Akber Ali v. Ehsan Ellahi PLD 1980 Laho. 145; Government of Pakistan v. Moulvi Ahmed Saeed 1983 CLC 414; Muhammad Sarwar v. Fazal Rehman 1982 CLC 1286 Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325; Eastern Rice Syndicates v. C.B.R. PLD 1959 SC (Pak) 364; The Collector Central Excise and Land Customs v. Imdad Ali 1969 SCMR 708 and M/s. Latif Brothers v. Deputy Collector of Customs, Lahore 1992 SCMR 1083, which the respondents Nos. 1 and 3 miserably failed to discharge.

(xiii) That the said proposition of law was explained with clarity by their Lordship of High Court of Sindh in reported judgment PLD 1996 Karachi 68 Kamran Industries v. Collector of Customs (Exports) and Order of the Custom Tribunal in Customs Appeal No. K-391/04 Mr. Muhammad Mir v. Collector of Customs (Adjudication), Karachi and 2016 PTD 582.

(xiv)That irrespective of the above submission, through which the appellant aptly proved that the goods of his consignment are of China origin and he does not feel obliged to controvert the opinion of the examiner and the respondents in regards to said to be impugned label pasted on one of the bale, existence of which is denied by the appellant in totality. Nevertheless for the sake of argument without conceding, if it is presumed that the labels does exist, even then it has no nexus with the appellant goods and this stood validated from the varied facts, it refers to container No. BMOU-6036471, 180 bales and 13289.85 kgs. Whereas, the appellant container No. is JATU8497628 stuffed with 224 bales of 16800 kgs. Likewise reference to the GD number 4051497 dated 09.11.2015 is also out of context because it pertains to fabric falling under HS Code 5215.015104 of Indian Customs Tariff as against the claimed/assessed HS Code of the appellant 5407.5100, which is in accordance with the HS Code available on the verification of the certificate of origin of China by the Internet Authentication Centre of China Council for Promotion of International Trade. Connecting the goods of appellant with the goods shipped from Nava Shiva, India against the aforesaid GD is manifestly erroneous instead absurd , stood validated from the fact that right from the number of bales to container No. differs from the appellant. Drawing of inference for holding the clearance of the appellant goods is without any cause and lawful authority and speaks volume about high handedness and abuse of powers.

It is therefore prayed that the Appellate Tribunal may please order that the show-cause notice dated 10.05.2016 and order-in-original dated 09.08.2016 issued/ passed are unmindful, whimsical without power/jurisdiction and based on inapt interpretation of the provision of the Acts/ Rules and Ordinance and as such of no legal effect therefore, vacated/set aside.

8.The Respondent Department has filed their counter-objections/ para-wise comments on the Memo. of Appeal filed by the Appellant in terms of section 194-A(4) of the Customs Act, 1969, which are reproduced as under:-

(i)That the contents of para (i) of ground of appeal are misleading incorrect hence denied. It is submitted that the competent Adjudicating Officer after considering written as well as verbal arguments put forth from both sides and all aspects of the case passed the order-in-original by upholding the charges levelled in the Show-Cause Notice whereby the appellant failed to rebut such charges on any plausible grounds. It was proved beyond any doubt that the appellant tried to clear the goods which were other not importable considering the provisions of being banned for import under S.No. 363 of Appendix-G of the import Policy Order, 2013, the Adjudicating officer very rightly passed the order section 186 has no relevance with this case as the goods were out rightly confiscated being not importable. The cited case law has no relevance with this case.

(ii)That the contents of para (ii) of ground of appeal are misleading

incorrect hence denied. The contention of the Appellant is based on misinterpretation of law. Goods were never seized during proceeding of the case therefore the concept of notional seizer is quite misleading. Considering the facts and circumstances of this case the cited case law has no relevance.

(iii)That the contents of para (iii) of ground of appeal are misleading incorrect hence denied. It is submitted that the goods were never seized therefor provisions of sections 171 and 168 are irrelevant Considering the facts and circumstances of this case the cited case law has no relevance.

(iv)That in the light of submissions made above, the contents of para (iv) of ground of appeal are misleading incorrect hence denied. It is submitted that as the importer knowingly and with mala fide attention misdeclared the origin therefore section 32 is very much attracted in the instant case, it is respectfully submitted that under electronics clearance promulgated vide Chapter-XVI A of the Customs Act, 1969, an importer is not only responsible to make declaration of true and correct particulars of the imported goods including origin but also he is responsible to assess and pay his liabilities of duty.taxes as per law and thereafter file his "Goods Declaration (G.D.)" electronically in terms of section 79(1) of the Customs Act, 1969. Most of the consignments are allowed release as per importer's self-assessment and declaration, without manual check, however, under selectivity criteria few consignments ai$ ought to be checked to verify whether or not correct particulars of the imported goods have been declared and leviable amount of revenue has been paid. In the instant case, it is proved that the Respondent importer had made an attempt to clear the banned goods by deliberately mis-declaring the origin of the imported goods, i.e. declared origin China instead of actual origin India knowingly through self-assessment made under section 79(1) of the Customs Act, 1969. It is also submitted that the provision of section 155-A and Chapter-XVIA of the Act is special enactment. As such, considering the provisions of subsection (1) of section 79 of the Act, particularly in a case of electronic clearance under the Pakistan Customs Computerized System an importer is required to assess/ determine his liabilities of duties and taxes and after payment, file his Goods Declaration (G.D.) with true and accurate declaration of all particulars of the imported goods as essential for correct assessment. It was also submitted that the present amended provision of section 79 of the Customs Act, 1969, is actually a "Self-Assessment" system, and in terms of Section 80 of the Customs Act, 1969, the appellants will only check correctness and legality of such payments, and declaration, under selectivity criteria on random basis. In section 79(1) the words "true declaration", "complete and correct particulars" and "assessing and paying his liability" have a great significance in processing and clearance of imported cargo through electronic clearance system. Thus, according to the definition given in subsection (1) of section 32 of the Customs Act, 1969, read with the amended provision of section 79(1) of the Customs Act, 1969, wrong and lower assessment and deliberate incorrect declaration of any particular of the imported goods, with an intent to evade and pay lesser amount of duties and taxes also constitutes a mis-statement in a matter of customs.

(v)That in the light of submissions made above, the contents of para (v) of ground of appeal are misleading incorrect hence denied. It is submitted that considering the provisions of section 179 of Customs Act, 1969, the adjudicating officer very rightly adjudicate the subject case. Considering the facts and circumstances of this case the cited case law has no relevance.

(vi)That in the light of submissions made above, the contents of para (vi) of ground of appeal are misleading incorrect hence denied. It is submitted that considering the provisions of section 179 of the Customs Act, 1969, the adjudicating officer very rightly issued the Show-Cause Notice and after due hearing adjudicate the subject case. Considering the facts and circumstances of this case the cited case law has no relevance.

(vii)That, the contents of para (vii) of ground of appeal are misleading incorrect hence denied. The provisions of section 3 of the Federal Excise Act, 2005, Section 148 of the Income Tax Ordinance, 2001, Section 6 of the Sales Tax Act, 1990 and Section 32 of the Customs Act, 1969, the customs officers are empowered to recover any tax or duty, which has been short levied at import / clearance stage, within five years. In terms of Section 6, the answering respondents are / were empowered to collect and recover the Sales Tax. The learned counsel of the appellant has deliberately ignored the words "or charge" appeared after customs duty in Section 32 of the Customs Act, 1969. Considering the facts and circumstances of this case the cited case law has no relevance.

(viii) That in the light of submissions made above, the contents of para (viii) of ground of appeal are misleading incorrect hence denied.

(ix)That in the light of submissions made above, the contents of para (ix) of ground of appeal are misleading incorrect hence denied. It is pointed out that examination (conducted twice) transpired that M/s. AG International Karachi misdeclared the origin of the imported good being banned for import under S.No. 363 of Appendix-G of the Import Policy Order, 2013, read with para 5(B)(iii) ibid.

(x)That in the light of submissions made above, the contents of para (x) of ground of appeal are actually admission of the Appellant. The fact is that Appellant was very well aware to the fact the subject imported item is not importable from India there to avoid this confiscation he indirectly shipped the goods from UAE.

(xi)That in the light of submissions made above, the contents of para (xi) of ground of appeal are misleading incorrect hence denied.

(xii)That in the light of submission made above the contents of Para (xii) of grounds of appeal are incorrect hence denied. It is submitted that the subject case has no relevance with Qanun-e-Shahadat, whereas according to the IPO S.No. 363 of Appendix-G of the Import Policy Order, 2013, read with para 5(B)(iii) ibid. Importer goods are not importable from India. Considering the facts and circumstances of this case the cited case law has no relevance.

(xiii) That considering the facts and circumstances of this case the cited case law has no relevance. With this case hence denied.

(xiv) That in the light of submissions made above, the contents of para (xiv) of ground of appeal are misleading incorrect hence denied.

In the light of submissions made above, it is respectfully prayed to kindly dismiss the subject appeal.

9.I have heard arguments of the learned Consultant of the Appellant as well as the learned Representative for the Respondent Department besides examining the relevant record. The case of the Appellant is that they imported a consignment of "Unfinished Polyester Grey Fabric" of Chinese origin, from M/s. London Silk General Trading, LLC, Dubai, U.A.E weighing 1680 K.gs. The consignment was stuffed and despatched in container No.GATU 8497628 against the Invoice No.5080 dated 20.02.2016 with Certificate of Origin No.16C3307Y074600087 dated 24.02.2016. The Examination Report conducted by the staff of the Respondent Department confirmed the declared description and weight of the consignment, however, observed that on some bales showing container number BMOU6036471, a label was pasted indicating that the consignment was of Indian origin. The Respondent Department's plea is exactly the same as aforestated. On the request of the Appellant, the consignment was re-examined in the presence of Examination staff and R&D staff of the Collectorate. The joint Examination Report also observed that a label was pasted on some of the bales showing goods of Indian origin. The Appellant straightaway deny that the above container relates to his consignment. During the course of hearing, the learned Counsel laid tremendous emphasis on this point stating that their consignment was brought in container under GATU8497628 and not in container number BMOU6036471.

10.In my assessment, the Respondent Department has attended this case in an extremely non-professional manner. The first Examination Report clearly shows "Origin Not Shown". No doubt, the said Report mentions about a label pasted on some bales showing the origin of the consignment as India nevertheless it pertains to some other container bearing No.BMOU6036471. More interesting part is that this container shows quantity as 234 cartons whereas the container No.GATU8497628 pertaining to the Appellant's consignment mentions about 'Bales'. For convenience, the first Examination Report is reproduced below:-

"Container No: GATU8497628, GD No: KAPE-HC-115178-22-02-2016 Documents not found. Examined the goods with GD retrieved from the system. Description. Polyester grey undyed/ unfinished fabric for ladies shirting in bales. Net wt approx 16900kgs. Origin not shown. It is pointed out that on some bales a label showing container No. BMOU6036471, quantity 234 ctns and on one bale a cargo stack card pasted which shows the following details: DBC Port Logistics Ltd. CFSJNP Sonari Village, Taluka, Uran, Navi Mumbai - 400 707 India. Export Division Cargo Card, Agency Name: SHREE SAMARTH, Shipping Bill No. 4051497 09/11/15, CHA Name: Motherland Shipping. Export Shed No 03, Cargo Description: Fabric. The quality of all the fabric is same which reflect that whole consignment is of India origin. Group is requested to check all aspects keeping in view the ER to ascertain the origin of the goods. Rep sample drawn and forwarded to CH lab for confirmation of actual desp, HS code and all other aspects. Rep sample also forwarded to group for inspection and further confirmation thereof. 100% wt checked vide PICT wt slip No.426548 dated 23.02.2016 and found 17190kgs. Wt slip scanned images attached."

As above, the Examination Report is categorically referring to another container (BMOU6036471) which does not relate to the Appellant as their consignment is contained in Container Number GATU8497628. The Memo. of Appeal contains certain documents (2 pages) which appear to have been downloaded from the Indian official website generally called ICEGATE. This document is about Container Number BMOU6036471. The other particulars of the document shows Shipping Bill No. & Date, EGM No. & Date (11.03.2015), Seal No.500221 etc. The document also reflects some Hindi script about some "Awrad, South Asia 2011 besides "Government of India, Ministry of Finance Department of Revenue".

11.The position detailed in the preceding para conveniently leads to conclude that a label on some bales showing the consignment of Indian origin belonged to another container to which the Appellant had no concern, however, this shows lack of professionalism on the part of the Respondent Department. More shocking is that the Second Examination Report also mentions about the aforesaid labels, however, this time, reference to container number BMOU6036471 is deliberately avoided which reflects intellectual dishonestly on the part of the Respondent department. One can easily conclude that this was done because a special team of R&D was associated with the Examination process besides the normal examination staff, therefore, they were determined to find out 'something' to frame a case against the Appellant. My aforestated observation is also based on the ground that all the relevant facts as given in both, the Examination Reports were tallying with those given in the Goods Declaration. I have also examined the individual documents including Invoice and the Packing List both dated 09.01.2016 issued by London Silk General Trading L.L.C, Dubai, U.A.E, Bill of Lading, Certificate of Origin (issued Retrospectively) by the ICC, China addressed to the aforementioned party in Dubai another Certificate dated 22.02.2016 issued by the Dubai Chamber of Commerce showing country of origin as China. This Certificate clearly indicates the container number as GATU8497628 relating to the Appellant. Infect, the Respondent Department has not given 'fair trial' to the Appellant as required by Article 10-A of the Constitution of Pakistan. I cannot contain myself from expressing observation that the learned adjudicating authority has not been able to look into above-detailed distortion of facts by the Respondent Department. He has passed a cursory judgment comprising six lines in sheer violation of section 24-A of the General Clauses Act, 1897.

12.In view of the above, I am left with no option but to set aside the show-cause notice dated 10.05.2016 as well as the impugned Order-in-Original (No.560069 dated 09.08.2016) being void ab initio. The Appeal is allowed on its merit.

13.Announced.

HBT/113/Tax (Trib.) Appeal allowed.