COLLECTOR OF CUSTOMS VS SPORTS ONE INTERNATIONAL TRADING COMPANY, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2471 (2017)

Customs Act (IV of 1969)---

----Ss. 25 & 81---Customs value of goods---Determination---Importer imported declaration, showing rate of unit value US $ 1.00/Kg.; whereas assessment was made at the rate of US $ 6.00/Kg. by adjudicating authority---Being aggrieved and dissatisfied with the order-in-original by adjudication authority, importer filed appeal before Collector of Customs (Appeal), who set aside the order-in-original, holding that requisite order under S.81(5) of the Customs Act, 1969, having been passed after a lapse of one year and seven months, provisional determination had become final---Order-in-appeal by Collector of Customs (Appellate Authority) had rightly and justifiably been passed---Present appeal, did not contain substantial grounds for its consideration---In absence of any reason to interfere with order passed vide impugned order-in-appeal, same was dismissed being devoid of any merit and substance.

Abdul Rasheed, P.A. for Appellant.

M.H. Awan and Suraiya Sarwar for Respondents.

Date of hearing: 11th July,2017.

JUDGMENT

TAHIR ZIA, MEMBER (JUDICIAL-II).---By this order, I intend to dispose of Customs Appeal No.K-105/2017 filed by the appellant against the Order-in-Appeal No.1269/2016 dated 28.09.2016, passed by the Collector of Customs (Appeals), Karachi.

2.Brief facts of the case as are that the appellant imported a consignment of "Food Supplement Assorted Flavour (Vanila, Banana, Chocolate, Strawberry)" and filed Goods Declaration bearing No. KPPIHC-23942 dated 07.11.2014 declared rate of unit value US $ 1.00/kg whereas the same were assessed at the rate of unit value of US$ 6.00/kg. The hearing in the case was fixed and held on 28.09.2016. Mr. Muhabat Hussain Awan, Advocate appeared on behalf of the appellant while Mr. Fawad and Mr. Muhammad/Umer, Appraising Officers, appeared for the Model Customs Collectorate of Port Muhammad Bin Qasim, Karachi. The learned counsel reiterated the arguments given in the memo of appeal, which are reproduced as under:--

i)That the Deputy Director Valuation has not adopted sequential methods of Valuation as provided under section 25 of the Customs Act, 1969 and determined the value under section 25(9) of the Customs Act, 1969 ignoring the subsections (1) to (8) of Section 25 of the Customs Act, 1969. The value of the imported goods was available in computerized data base.

ii)That the procedure for determination of customs value has been discussed in a judgment C.P. No. 2678/09 Jabbar v. Federation of Pakistan and others issued by the Honorable High Court of Sindh at Karachi, although this is prejudiced before the Honorable Supreme Court of Pakistan but there is no dispute regarding the procedure laid down in the said judgment.

iii)That the case in question has not been decided in accordance with the procedure laid down in above observations hence, the determination of transaction value is not fair, therefore, it requires to be set aside in the interest of justice and equity.

3.Being aggrieved and dissatisfied with the above Order-in-Original, the respondent No.1 filed an appeal before the Collector of Customs (Appeals), Karachi, who decided the appeal vide Order-in-Appeal No.1507/2016 dated 09.11.2016. Operative part of the said order-in-appeal is reproduced hereunder:--

"I have examined the case record. At the outset it is noted that GD was processed provisionally under section 81 of the Customs Act, 1969 on 29.01.2015. In accordance / with section 81(2), final determination of payable duty / taxes was required to be made within six months of the date of provisional determination. The requisite order under section 81(5) has been passed after a lapse of one year and seven months, therefore provisional determination has become final. The assessment order dated 27.08.2016 is not legally sustainable, hence set aside. The appeal is successful."

4.Being aggrieved and dissatisfied with above Order-in-Appeal, the appellant department has filed instant appeal before this Tribunal on the grounds, which are reproduced as under:--

A.That impugned order is bad in law, unjust and lacks judicial application of mind.

B.That the learned Collector (Appeals) failed to appreciate that the value of the goods imported by the appellant has been finalized in accordance with law and rules framed thereunder. Strict compliance of Section 25 of the Customs Act, 1969 was made and the order passed by the authority was correct and liable to be up held.

C.That the learned Collector without touching the merits of the order passed; set aside the same on the ground of technicality. The order is therefore not maintainable and is liable to be struck down.

D.That the learned Collector ought to have appreciated that the value of the goods have been finally determined and an order in this regard has been passed. However the learned Collector instead of appreciating the determination of value done by the authorities, passed the impugned order rejecting the valuation done by the competent authorities.

E.That even if the order passed by the learned Collector is for the sake of arguments deemed to be correct, even then the appeal filed by the appellant cannot be allowed in toto as in terms of Explanation to Section 81 of the Customs Act, 1969, the provisional determination has become final and the bank guarantee/ PDC are liable to be encashed.

F.That the learned Collector (Appeals) failed to appreciate the meaning of provisional assessment as has been given in the Act of 1969 and passed the impugned order on the basis of his assumption, resulting in mis-carriage of justice.

G.That the learned Collector failed to appreciate that as per "Explanation" provided in Section 81 of the Customs Act, 1969, Provisional Assessment means "the amount of duties paid or secured against Bank Guarantee or post-dated checque. "The order is therefore contrary to the statue and as such liable to be set aside.

H.That as per Section 81(4) of the Customs Act, 1969 where final determination is not made within the specified time, the provisional determination, in absence of any new evidence shall become final. In view of the referred provision of law, the provisional determination has become final and the appellant is not liable to return the amount of duty and taxes secured by way of bank guarantee / post-dated cheques.

I.That if the order passed by the learned Collector is deemed to be correct even in that case the assessment shall be finalized at the rate at which the provisional determination had been made and the Bank Guarantee / post-dated cheques deposited by the respondent at the time of provisional assessment are liable to be en-cashed by the appellant.

J.That in view of "Explanation" provided in Section 81 of the Customs Act, 1969 there shall be no other definition of "Provisional Assessment" can be made and any explanation other than the one which is provided in Section 81 of the Act of 1969 shall be void and illegal.

K.That the order passed by the learned Collector (Appeals) is not in accordance with law and is liable to be set aside.

L.That the learned Collector (Appeals) has no power to interpret / define / modify "Provisional Assessment" which is contrary to the Explanation provided in Section 81 of the Customs Act, 1969.

M.That the powers to struck down / modify / define any provision of law lies with the Honorable High Court and the learned Collector is not empowered to do so.

N.That the act of learned Collector "Appeals" amounts to interfering within the powers of Honorable High Court, the order passed by the learned Collector is liable to be set aside.

O.That the impugned order is perverse, illegal void ab initio and against the provisions of Customs Act, 1969.

P.The appellant crave leave to urge fresh and additional pounds at the time of hearing.

5.The representative of the appellant department further argued that on the basis of above said grounds and facts, the instant appeal may kindly be accepted and the Order passed by the respondent No.2 may kindly be set aside in the interest of justice.

6.The respondent's counsel has submitted cross objections in reply to the memo. of appeal, which are placed on record. The counsel for the respondent No.1 further submitted that the Order passed by the respondent No.2 is correct in facts and law, which is required to be upheld.

7.I have given due consideration to the submissions made by the appellant and also considered the observations of Collector of Customs (Appeals), Karachi. I am of the considered view that impugned Order-in-Appeal rightly and justifiably been passed and that instant appeal does not contain substantial grounds for its consideration, therefore, find no reason to interfere with the orders passed vide impugned Order-in-Appeal and hence dismiss the present appeal being devoid of any merit and substance.

8.Order passed and announced accordingly.

HBT/81/Tax(Trib.) Appeal dismissed.