The COLLECTOR OF CUSTOMS, through Deputy Collector (Group-VI), MCC VS The RANGEELA INTERNATIONAL 43-G, GULBERG II, LAHORE, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1774 (2017)

(a) Customs Act (IV of 1969)---

----Ss. 32, 79 & 156(1)---Mis-declaration---Consignment comprised of 5110 Kgs of "L.C.D. Computer Monitors" and clearing agent transmitted the Goods Declaration with M.C.C. of Appraisement (M.C.C.E.)---Assessing Officer framed contravention report stating that imported goods were 'T.V.' and not Computer Monitors; that importer had deliberately concealed/declared the description of the imported goods and attempted for getting the imported goods at lower tariff rate for evading legitimate amount of taxes wilfully and with mala fide intention; that said act of the importer attracted the provisions of Ss.32(1)(2) & 79(1) of the Customs Act, 1969, punishable under S.156(1) of the Customs Act, 1969---Collector of Customs Adjudication passed order-in-original, wherein, he on the basis of the report of Expert Company, held that subordinates of Collector of Customs, were unable to establish the charges levelled in show-cause notice against the importer---Collector of Customs, had challenged the vires of said order of Collector of Customs Adjudication in appeal before the Appellate Tribunal---Validity--Claim of Collector of Customs that monitors imported in fact, were T.Vs., had not been validated by the team of technical exparts ---Said experts in their report presented after examination of the sample, had confirmed that the goods imported by the importer, were Monitors and not T.Vs.---Appeal against impugned order-in-original, being without merit and substance, was not maintainable---Collector was directed to issue a delay and detention certificate for submission to respective shipping company and P.I.C.T. for waiver of accumulated container detention/rental and terminal demurrage/storage charges due to needless adjudication---Order accordingly.

(b) Customs Act (IV of 1969)---

----Ss. 194-A & 179---Appeal to Appellate Tribunal---Limitation---Section 194-A of Customs Act, 1969, had prescribed the time limit of 60 days from the date on which the decision or order sought to be appeal against was communicated to the Collector---Appeal filed after lapse of 60 days from the date of which the order under S. 179 of the Customs Act, 1969 was served on the Collector, would be barred by time---Appeal would be deemed to have been properly filed when annexed with challan of one thousand rupees, which was not done in the present appeal---Appeal, not validly and legally filed, was not maintainable---When the law had prescribed method for doing a thing in a particular manner, such provision of law was to be followed in letter and spirit---Attaining the objective of performing or doing of a thing in a manner other than provided by law, would not be permitted.

Amjad Iqbal, A.O. for Appellant.

Nadeem Ahmed Mirza Consultant and Mirza Abeer for Respondents.

Date of hearing: 3rd January, 2017.

ORDER

TAHIR ZIA, MEMBER (JUDICIAL-II).---Through this order, we intend to dispose off Appeal No.K-2135/2016 directed against the Order-in-Original No.588663, dated 20.10.2016 passed by Collector of Customs, Adjudication-II (hereinafter to be referred as respondent No.2).

2.Brief, facts of the case are that Messrs Rangeela International of 43-G, Gulberg-II, Lahore (hereinafter to be referred as respondent No.1) imported a consignment comprising of 5110 kgs of "LCD Computer Monitor" valuing to US$. 15552.00 C&F Karachi and for clearance he delivered the documents to his clearing agent M/s. Usman Enterprises, Karachi (CHAL No. 1970), who transmitted Goods Declaration (here-in-after to be referred as GD) with the MCC of Appraisement-East (here-in-after to be referred as MCCAE) under the provision of Section 79(1) of the Customs Act, 1969 (here-in-after to be referred as Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 (here-in-after to be referred as Rules) under PCT 8528.5100 and as per pre-requisite deposited upfront duty and taxes, amounting to Rs.115,552.00/-, consequent to which was GD numbered KAPE-HC-180222-29062016, upon appearance of GD, the nominated Appraiser of the MCCAE instead of completing the assessment order opted to get the goods examined in terms of section 198 and Rule 435 of the Act/Rules. The official of MCCAE posted at terminal conducted the examination and found the goods in accordance with the declaration and pasted the report so prepared in the reservoir of the GD and which read as "Container No. WHLU-4162253, GD No. KAPE-HC-180222-29062016 Assessment Alert regarding description: documents not found. Examined the goods with GD retrieved from the system. Declared descriptions LCD Computer Monitor size 23 inches mode of packing : 06 units each ctn x 333 ctns + 2 units in 01 ctn = Total 2000 units A sticker pasted on the goods showing 23 inches LCD/LED monitors, another sticker pasted on screen showing V236B J1-PO3. Brand and origin not shown no catalogue found during the course of examination. The number on sticker pasted on sc reen "V236BJ1-PO3" search on Google address http:www.datadisplay-group.com/fileadmin/pdf/ produkte/display/innolux/ V236BJ1-P03_datasheet.PDF which shows V236VJ1-P03 is a 23.6 inches TFT liquid crystal display.TV product with driver ICs & 1CH-LVDS interface. This product supports 1366*768 HD TV format and can display 17.7m color (8-bit/color). It is observed that the units are incomplete being one or more part missing. Accordingly, rep sample drawn and being forwarded to Group for inspection and confirmation whether it is monitor or TV in the light of R/sample. Brand and origin not shown. 100% WT check vide PICT WT Slip No. 472418 dated 30.06.2016 and found 5110 kgs. Wt: Slip scanned images attached." Upon receipt of the said report the assessing officer framed contravention report stating inter-alia, the fact narrated in the examination report and perusal of the sample of the subject monitor reveals "that the same is equipped with the following features RGB Port, channel switch, built-in speaker, HDMI Port Circuit showing model No. TSUM-V59 x 4-Z1 which is for TV channel changing system/cable connector/USB connector along with other system which are confirming that the imported goods are TV correctly classifiable under HS Code 8528.7211 attracting CD @ 20% RD @15%, ST @17% A.S.T @ 3% Rs.= I.T. 6% = instead of HS Code 528.5100 attracting CD 3% =, RD @ 0%, ST @ 17%=, AST=3%, IT @ 9% A, CD @ 1% =, this prove that the importer has deliberately concealed/declared the description of the goods to take an attempt for getting the goods assessed @ lower Tariff rate for evading legitimate amount of taxes to the tune of Rs. 5,051,975/- willfully and with mala fide intention the offending value of the goods is works out to be Rs. 7,388,150/-. The retained sample will be presented by the Group during hearing with the Adjudication Authority. The act of the importer attracts the provision of sections 32(1), (2), 79(1) of the Customs Act, 1969 read with SRO 499/2009 dated 13.06.2009 and with Section 33 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001, punishable under clause (i) of section 156(1) of Customs Act, 1969. Clause 11(c) of section 33 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001 as amended from time to time" and forwarded the same to Principal Appraiser, who after endorsing his stance routed that to Deputy Collector of the Group, who subsequently after giving his assent forwarded the GD to Additional Collector- Law which approved that and routed that to respondent No.2, who transmitted show cause notice dated 16.08.2016 on the basis of the narrated facts and attracted provisions of the Act incorporated in the contravention-report.

3.The respondent No. 1 submitted reply to the show-cause notice and during the course of hearing agitated that how on the basis of the screen of monitor and ports, the appellant subordinate could decide the description i.e. whether it is "Monitor" or "TV". The ports available at the back of monitor, itself confirms without any ambiguity that the imported goods are monitor, further stands validated from the printed metallic affixed sheet reading as 23" LCD/LED Monitor to be read with scanned literature. On the other side the appellant subordinate were of the view that the product in question is TV. Since, the issue was of technical nature and both sides were of divergent views, it was agreed upon that the sample of the goods so imported be forwarded to well known manufacture/assembler of TV's in Pakistan to determine the exact nature/description of the impugned goods. The appellant vide letter dated 02.09.2016 forwarded the sample to Messrs HNR Company (Pvt.) Ltd., C/o of Heir Pakistan Ltd., which through its letter dated 06.10.2016 informed the appellant's subordinate that "the product in current condition can only be used for computer display and it can be called a PC LCD because apparatus of television are not installed/ assembled in it like audio and video connection strips, tuner, USB Port and HDMI Port". Despite confirmation that the goods are monitor, the appellant's subordinates forwarded letter dated 18.10.2016 to the respondent No. 2, stating inter alia that analysis report of M/s. HNR Company is technically flawed and they have not explained the frame ratio, pixels (720P for TV Monitor and also they not explained the resolution of the monitors 920x108p for computer monitor) and (1280x720p for monitors). Therefore, opined that the goods are fitted with all essential TV ports i.e. HD TV/HDMI/AV/RF connector/ SDB/VGA/Ports etc. hence, the monitor is principally designed for LCD TV monitor and thus requested that the case may be decided on merit keeping in view the aforesaid opinion. The respondent No.2 on 20.10.2016 passed order-in-original wherein, he on the basis of the report of Messrs HNR Company (Pvt.) Ltd. held that the appellant's subordinates are unable to established the charges levelled in the show-cause notice. Paras 9 to 11 are relevant, which are reproduced here-in-below for easement.

"9. Core issue was determination of exact physical description of the subject goods to be computer monitor or TV. Both the department and respondent presented their view points to prove their side of the case, which have already given in the preceding paras. Being a highly technical issue it was thought appropriate that the same may be referred to some 3rd party who is expert in such matter. In this regards the department was asked to select some technical experts of its own choice and try to find out the disputed description by seeking his technical opinion. Both sides were also asked to present their view points to the 3rd party before pronouncement of the technical opinion. The department referred the matter to Messrs HNR Company (Pvt.) Ltd., Lahore who are assembler of Haier TVs and other electronic products. Their technical team examined the referred sample and have categorically declared "the product in current condition can only be used for computer display and it can be called PC and CD because apparatus of television are not installed/assembled in it like audio and video connection strips, tuner , USB Port and HDMI Port". Messrs HNR Company (Pvt.) Ltd., Lahore in their letter addressed to the Department has also offered that " in case of further clarification required, you may contact please." The technical opinion expressed by Messrs HNR Company (Pvt.) Ltd., clearly declares that the subject goods to be a PC LCD or a computer display and the company expert did not agree with the Department's contention that these monitors are TVs. However, MCC of Appraisement (East) in its letter C.No. 692/KAPE/DC-VI/2016 dated 18.10.2016 referred above has raised certain objection on the technical opinion communicated by M/s. HNR Company (Pvt) Ltd which cannot be entertain at this stage because department had all the opportunities to raise the same Technical Team of M/s. HNR Company (Pvt) Ltd before or even after the issuance of their technical opinion to get it over turned or amended which it never did and when the Technical opinion has been issued they are now trying to fault with the opinion of experts/specialist of TV assembling. Objection raised by the Department are made the opinion of some generalist Customs Officer devoid of any supporting material and cannot be preferred over the opinion expressed by the team of specialist on the subject and the same are not entertain at this stage.

10.In the light of what has been discussed above the charges mentioned in the Show-Cause Notice and the case is disposed off accordingly.

11.The Assessing Officer is directed to check all other formalities before the release of said consignment."

4.The appellant has challenged the vires of the order by way of the instant appeal, he representative of the appellant argued on the strength of the grounds incorporated in the memo. of appeal and which are enumerated here-in-under:

(i)That the impugned Order-in-Original is bad in law, wrong on facts, unjust inequitable and erroneous and lacks judicious application of mind.

(ii)The examination report and scrutiny of the documents, retrieved from the web-net site of the supplier/manufacturer confirms that the imported Monitors, having features such as RGB Port Channel Switch Buttons Built-in speaker, HDMI Port Circuit showing Model No. TSUMV59x4-ZI (which is, for TV channel changing system, cable connector, USB connector, VGA Port IC for TV and screen of Innolux Model V236BJI-PO3 designed for T.V. is meant for LCD TV and can be used for multipurpose. The PCT heading of 8528.5100, claimed by the importer covers only such monitors which are solely and principally used in an automatic data processing system of PCT heading 84.74.

(iii) That the opinion of HAIER is without any cogent reason/any technical support however, on the basis of the said absurd report the Collector (Adjudication-II) has vacated the show-cause notice vide Order-in-Original No. 588663 dated 20.11.2016 and directed to assess the imported LCD Monitor under PCT heading as declared by the importer. The case has been examined by the Collectorate and raised the following objections on the report submitted by the local assembler.

(a)The goods are fitted with all essential TV hardwares/ICs etc.

(b)The screen is not principally designed for computer monitor because the pixels of computer screen and the pixel of the TV monitor technically never be same.

The item code i.e. V236BJI, found on the goods has been checked from the web-site of the manufacturers, which confirms that the said monitors has been designed for use as TV monitors.

(iv)That, as per Rule 2(a) of the General Rules of interpretation to Pakistan Customs Tariff the goods are more appropriately classifiable under PCT heading 8528.7211, as although the goods were not finished form, but in the present state it had developed the essential character of Television. It is also pertinent to note that as per rule 3(c) of the General Rules of interpretation to Pakistan Customs Tariff, the goods are appropriately classified under PCT heading 8528.7211. The relevant Rule 3(c) is reproduced as under the ready reference.

"Goods which cannot be classified by reference 3(b) they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration."

(v)That the Learned Collector (Adjudication) has erred in fact and law by not considering that the PCT heading 8528.5100, only covers those Monitors which have been principally and solely manufactured/designed for computers whereas the examination of the imported goods and investigation carried out by the appellant Collectorate proves that the imported Monitors are not for principally and solely designed for LCD Monitors for computers, therefore, the imported goods were reassessed to duty/taxes under PCT heading 8528.7211 @ 20% Customs Duty and @ 15% RD as against @3% CD only. By making an attempt of clearing the goods with an evasion of Rs.5,051,975.00 through deliberating wrong self assessment under PCT heading 8528.5100.

5.The respondent No. I submitted memorandum of cross objections dated 29.12.2016 under subsection (4) of section 194-A of the Customs Act, 1969, copy of which was also delivered in advance on 30.12.2016 to the appellant, same has been made part of the record of the case. In addition to the cross objection the consultant of the appellant raised objection on the maintainability of the appeal in terms of subsection (6) of section 194A of the Customs Act, 1969, which express that every appeal filed under section 194A(1) of the Customs Act, 1969 before the Customs Appellate Tribunal be accompanied by a fee of Rupees One thousand only, which is non existent in the appeal. Resultant, the appeal is not validly filed within the stipulated period of 60 days in terms of subsection (3) ibid , therefore, not maintainable.

6.Rival parties heard and case record perused along with the citations relied upon.

7.The subject appeal can be disposed off on the basis of maintainability, which the consultant/advocate of the respondent No.1 raised, for reaching at a just decision, we feel beneficial to reproduce section 194A of the Customs Act, 1969.

"194A- Appeals to the Appellate Tribunal :- (1) Any person or an officer of Customs aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders:-

(a)A decision or order passed by an officer of Customs not below the rank of Additional Collector under section 179.

(ab)An order passed by the Collector (Appeals) under section 193;

(c)An order passed under section 193, as it stood immediately before appointed day;

(d)An order passed by the Board or the collector of Customs under section 195

(e)An order passed in revision by the director General Customs Valuation under section 25D, provided that such appeal shall be heard by a Special Bench consisting of one Technical Member and on Judicial Member.

Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred it subsection (1) where-

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

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

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

(2) Where the Board or Collector of Customs by an order passed by the Collector Appeals, it or as the case may be, he may prefer an appeal to the Appellate Tribunal. Such appeal shall be preferred by an officer, not below the rank of Assistant Collector of Assistant Director so authorized in writing by the Board or the Collector or the Director as the case may be.

(3) Every appeal under this section shall be filed within 60 days from the date on which decision or the order sought to be appealed against is communicated to the Board or the Collector of Customs, or as the case may be, the other party preferring the appeal.

(4) On receipt of notice that an appeal has been preferred under this section, the party again whom appeal has been preferred may, not with standing that he may not have appeal against such order or any part thereof, file within thirty days of the receipt of the notice, a memorandum of cross-objections verified in such a manner as may be specified by the Rules made in this behalf against any part of the order appeal against and such memorandum shall be disposed off by the Appellate Tribunal as if it were an appeal presented within the time specified in subsection (3).

(5) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by the Rules made in this behalf and shall, accept in the case of a memorandum of cross-objection referred to in Subsection (4), be accompanied by a fee of one thousand rupees.

(7) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(8) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Upon bare reading of subsection (1) of Section 194A of the Act, it is clear that an officer of Customs can prefer an appeal against an order passed by the Officer of Customs not below the rank of Additional Collector, with due authority executed in writing as expressed in subsection (2) and the appeal so drafted/presented should be accompanied by a fee of one thousand rupees as enunciated in subsection (6). In the instant case no fee challan confirming deposit of one thousand rupees on account of the appellant is available, instead in the name of respondent No. 1, who has not filed the instant appeal, instead it is Deputy Collector of Customs Group-VI, who preferred the appeal on behalf of Collector of Customs, MCC of Appraisement-East. This vital lapse renders the appeal not validly filed and therefore in-fructuous. This deficiency could not be cured in the absence of availability of enabling subsection in section 194A or any other section in the Act. It is settled proposition of law that if the law had prescribed method for doing a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving and attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted. Section 194A of the Act prescribes the time limit of 60 days within which an appeal is to be filed from the date on which the decision or order sought to be appeal against is communicated to the Collector. This appeal has not been filed in accordance with law and there was contravention and violation of the mandatory provision of law. Resultant, this appeal is nothing but nullity having no legal existence. Filing of the appeal after lapse of 60 days from the date of which the order under section 179 of the Act was served on Collector, the appeal will be barred by time. It would be deem to have been properly filed when annexed with Challan of one thousand rupees, which is not available in the instant appeal. Hence, not validly and legally filed and therefore, is not maintainable under law. We would like to express our extreme dissatisfaction, discontentment and displeasure on the manner in which officer of the Customs Department involved in filing appeal least took due care, instead acted in a most negligent, careless, casual and imprudent manner and despite of clear dictates of law.

8. Notwithstanding, upon perusal of show cause notice and order-in-original, we have observed that the appellant subordinates have opined that the monitors imported by respondent No. 1 are equipped with RGB Port, Channel Switch, Built-in- Speaker, HDMI Port Circuit. This has not been validated by the team of technical experts selected by appellant itself namely M/s. HNR Company (Pvt.) Ltd., Lahore in their report presented after examination of the sample vide dated 06.10.2016, which with clarity confirms that the goods imported by the respondent No. 1 are monitor not TV and which read as, "the product in current condition can only be used for computer display and it can be called a PC LCD because apparatus of television are not installed assembled in it like audio and video connection strips, tuner, USB Port and HDDMI Port" On the strength of which the respondent No.2 passed order dated 20.10.2016. Despite the said fact the subordinate of the appellant in order to get endorsement of his flawed opinion forwarded letter dated 18.10.2016 to respondent No. 2 with the submission that "the report of Messrs HNR Company is technically not correct as they have not explained the framed ratios, pixel (720P) for TV monitors and also they not explained the restoration of monitors (920x1080P for computer monitors) and (1280x720P for TV monitors) and insisted that the monitor be treated as LCD TV Monitors". The respondent No.2 termed the said opinion as an opinion of Generalistic Customs Officers devoid of any supporting material and cannot be preferred over the opinion expressed by the team of specialist on the subject and cannot be entertained at this stage. The appellant on the basis of the opinion of the examiner and assessing officer and email dated 01.11.2016 not related with the instant case filed the instant appeal, which in general terms differentiate between the LCD/LED TV and Monitor i.e. System IC along with memory. If monitor have the main board with Chip IC then it is feasible/possible to transfer into LCD the TV with the addition of the extra component like RF Cable, USB Port headphone Jack and other component like AV input and output. The main Board with the lack of component cannot considered it monitor because the memory IC Chip existing. It can easily be convertible into TV with the up-gradation of software and addition of extra component. The email itself negates the contention of the appellant that the monitor imported by respondent No.1 are by all means TV, whether these are not fitted with vital components namely RF Cable USB Port, headphone Jack and other component like AV input and output, which was not confirmed by the team of technical experts in their report. Monitors can be converted into TV with the up-gradation of software and addition of aforesaid components.

9.That as regard to the opinion of the appellant that "The screen of the monitor imported by respondent is not principally designed for computer monitor because the pixels of computer screen and the pixels of the TV monitor technically never be same" suffers from lack of basic technical knowledge. The goods of respondent No. 1 have 1366 x 768 or WXGA resolution which is a non standard wide screen resolution used commonly in computer monitors and TVs. Mobile phones, TVs and computer monitors available in the market are of 720p resolution, 1080p or FULL HD resolution, 1440p or QHD resolution and 4K or UHD resolution i.e. identical resolutions for Computer LCDs and LCD TVs. The said vital aspect refutes the opinion of the Appellant that a computer monitor can never have the same pixels as of TV. This is fundamentally flawed as pixels are basically small dots that make up a display and are the same whether the display is CRT, LCD, LED, OLED or AMOLED. Pixels are not designed nor custom made for displays and are present in various quantities depending on the resolution of the hardware regardless of size, manufacturer or model. That almost all computer LCDs have the capability of being used as TV when additional components such as TV Tuner, audio and video connection strips, HDMI Port are installed/ affixed, which have been confirmed by Mr. Sohail Ahmed Production Engineer, LED TV Dept, Haier; in the aforesaid email.

10.Notwithstanding, for determining the description of the imported goods, it is mandated upon the appellant's subordinates to examine the goods as those have been arrived at Karachi and presented to the Customs Official for examination or assessment, under section 198 and Rule 435 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 through Goods Declaration filed under Section 79(1) and Rule 433 for assessment under Section 80 and Rule 438 ibid. Therefore, it is incumbent upon the customs officials to examine and assess it "as presented" for levy of duty and taxes, instead of presuming/forming opinion that the monitors imported by respondent No. 1 shall subsequently be converted into TV and sold in the market. This presumption/ apprehension is without any substance as nothing is visible or proved by the appellant or his subordinate through tangible evidence. The correct approach of the appellant and his subordinate would had been to examine and assess the goods "as presented" not on the basis of assumption that after clearance of the goods, it will be modified or given a different shape. It is not the job of Custom Official, to form opinion to such extend, which is not visible or eventuality had surfaced at the time of examination. This type of approach is not appreciable under any circumstances as this is nothing but an exercise and futility and root cause of unwarranted litigation. In such situations this Tribunal and the Superior Judicial Foras judgments are infield with the declaration that the act and commission of the Clearance Collectorate is without lawful authority. The Collectorate instead of reading the judgments in rationale and positive manner ignores those and frame contravention reports for the purpose of adjudication, creating hardship for the importers and depriving the exchequer from collection of levied duty and taxes. In order to abreast the Collectorate about the essence and spirit of Sections 198 and 80 of the Customs Act, 1969, reference is made to the judgment of this Tribunal given in Customs Appeals Nos. 487/ 200,353/01, 731 and 732 of 2001, wherein, the Division Bench held:

"Though originally vehicle were not designed as a dump truck, but by a subsequent change, before their export were brought into the category of dump truck to be classifiable under PCT heading 8704.2210 availing exemption of customs duty and sales tax. The department's contention that the subsequent alteration cannot change the original status of vehicle in the circumstances of the case does not appear to be correct, but it is not the conduct of importer, but of exporter which by alteration has changed the use of vehicle and brought it in the category of dump truck and it is after this change he enter into contract with the importer and invoice dated 05.02.2000 was executed for use Mazda Dumper and not for light commercial truck. So any change took place in the subject item can only be taken at the manufacturing process. The applicability of any PCT heading is always on the finished goods and in the condition brought before assessing authority." (Emphasis supplied)

11.In Special Custom References Nos.88 to 102 filed by Collector of Customs, against the orders of the Appellate Tribunal in Custom Appeals Nos.7678 to 7690/2013 dated 27.10.2013 of the subject appellant, the Hon'ble High Court of Sindh dismissed the references vide order dated 27.08.2014 and which have been reported as 2015 PTD 963 while holding that:

"Custom authorities without any factual or legal basis had disallowed the release of the vehicle in question, merely on the presumption that, importer would not use the imported concrete transit mixer for mixing and transporting of liquid cement; and put subsequently use such vehicles as normal loading trucks for transportation of other goods by removing the welded adopted and fabricated concrete transit mixer --- Customs Authorities, under the law were required to conduct examination, process the Goods Declaration, and to make assessment of the consignment imported "as presented" on the basis of import presentation of Goods Declaration examination and assessment; and not on assumption or suspicion that subsequent to clearance of such consignment, the goods could be used for some other purpose by altering and changing it structure, particularly, when no such eventuality had surface---Such authority if allowed to be exercised by the Customs Authorities, would result in multiplicity of unnecessary litigation; and was likely to defeat the purpose, and implementation of Import Policy --- Nothing had been brought on record, either to show that any of the terms and conditions of para 9 (ii) (v) of the Import Policy Order, 2013 had been violated by the importer, nor it was the case of the department that importer did not require such vehicle for the purpose as defined in the said para of the Import Policy Order, 2013. (Emphasis supplied)

12.It is also of paramount importance to refer to the judgment of this Tribunal dated 05.07.2006, wherein, it was held that "that the impugned vehicle has to be assessed and classified in the form as it had been imported and presented and to be classified in the light of Explanatory Notes to the harmonized commodity description and coding system as is required under Rule 7 of the General Rules for the interpretation of the First Schedule to the Customs Act, 1969." The reliance to the rule 3(c) of the General Rule of Interpretation is also out of context in the case of respondent No.1 because Sub-Rule (a) of Rule (3) is applicable which read as "the heading which provides the most specific description shall be preferred to heading providing a most general description. However, when two or more headings each refer to part only the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific." The goods imported by the respondent No.1 are sold in retail sale as monitor not TV. Therefore, these are to be treated as monitors without any exception.

13.In view of foregoing, the appeal is not maintainable under section 194-A of the Act and even without merit and substance. Therefore fails the judicial scrutiny as such stands dismissed. The appellant is directed to issue a delay and detention certificate in duplicate in terms of section 14-A(2) of the Act for submission respective shipping company and PICT for waiver of accumulated container detention/rental and terminal demurrage/storage charges due to needless adjudication. Order accordingly.

HBT/16/Tax(Trib.) Appeal dismissed.