(a) Administration of justice‑‑‑

‑‑‑‑ Law as in force on the date of commission or omission of an act and the date on which a right accrues to a person or liability is incurred, is the relevant law and not the law as in force at the time of hearing of a case at original stage or appellate one‑‑‑Numerous and frequent amendments take place in tax laws, therefore, all the Advocates practising on tax side are specially required to keep them abreast of all changes in law and the law as in force on the date when a tax is to be levied, failing which the miscarriage of justice is bound to occur.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.30 & 79‑‑‑Legislative history of Ss.30 & 79 of the Customs Act, 1969 recorded.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.79(2) [as stood in June/July, 1993]‑‑‑Time for filing of Bill of Entry‑‑‑Scope and principles.

A perusal of subsection (2) of section 79 as it stood in the months of June and July, 1993 shows that a bill of entry under, subsection (1) of section 79, could be presented at any time after the delivery of the manifest. However, under proviso the appropriate officer was empowered, in any special circumstances to permit bill of entry to be presented before the delivery of the manifest. At the relevant time a bill of entry could not be filed before the delivery of manifest, as a matter of right. It could be filed with the permission of the appropriate officer. In the present case no material has been produced and there is nothing on record from which it could be examined whether the bill of entry was filed on 23‑6‑1993 before the delivery of manifest, with the permission of appropriate officer or without the permission of appropriate officer. However, keeping in view the principle that when there is any ambiguity, it is to be resolved in favour of an assessee and not the State, it has been held that when the department has alleged that the bill of entry was filed on 23‑6‑1993 and the concerned group finalised the assessment on the same date, it was filed with the permission of the appropriate officer. Thus, the bill of entry was lawfully filed on 23‑6‑1993.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.30 [as stood in 1993] & 79‑‑‑Exemption from Iqra Surcharge‑‑ Value of and rate of duty payable on imported goods declared for home consumption under S.79 of the Customs Act, 1969 on the date on which a bill of entry was presented under S.79‑‑‑Scope and principles.

Provisions of section 30 of the Customs Act, 1969, as it stood in the year 1993 provide that the value of, and the rate of duty payable to any imported goods was to be taken at the value and the rate of duty in force in case of goods declared for home consumption under section 79, on the date on which a bill of entry was presented under that section. However, the first proviso dealt with the situation as in the present case. A bare perusal of the first proviso to section 30 as it stood in the year 1993 shows that the issue under consideration is fully clinched with this provision. According to proviso where a bill of entry has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of section 30 shall be the date on which the manifest of the conveyance is delivered. It is admitted position that in the present case the bill of entry was filed in advance of the arrival of conveyance on 23‑6‑1993 but the manifest was delivered on 8‑7‑1993. Thus, the relevant date for the purposes of section 30 was 8‑7‑1993, on which date the manifest of conveyance was delivered. The finalisation of assessment on 23‑6‑1993 by the concerned group of the Custom Department, prior to the arrival of conveyance was totally unwarranted and demonstrated collusion on the part of the importer bringing the case within the purview of subsection (2) of section 32. Collector had thus rightly issued the show‑cause notice and had passed the order for the retrieval of the taxes short‑levied. The penalty was also not open to any exception. It is also pertinent to note that the importer had not filed any written reply in response to the show‑cause notice issued by the Collector with the result that the allegations in the show -cause notice had gone un-rebutted which clearly amounts to admission of the facts alleged in the show‑cause notice. The Tribunal has clearly misdirected in coming to the contrary conclusion while allowing the appeal. The Tribunal has not considered the law as it prevailed at the relevant time. Tribunal has committed an error in observing that the version put‑forth by the importer before the Tribunal was more logical, weighty, well‑founded, well‑substantiated and definitely in line with the spirit and contents of the governing notification. Without adverting to the provisions contained in section 30 of the Customs Act, the Members of the Tribunal have formed opinion that the bill of entry was filed on 23‑6‑1993 and therefore, the importer became entitled to exemption from payment of Iqra Surcharge. There is another gross mistake on the part of Members of the Tribunal. Without properly appreciating the facts, in the light of the provision contained in section 30, they have observed that the act alleged on the part of importer does not fall within the provisions of section 32(2) of the Customs Act and at the best it falls within the purview of section 32(3) and which became barred by limitation. All these observations have been made out of total ignorance of the relevant provisions of law and non‑appreciation of facts. First, the collusion of the Customs Officials is apparent on the face of record. The assessment was made on 23‑6‑1993, before the arrival of the conveyance, in flagrant violation of the provisions contained in the first proviso to section 30. Secondly, the show‑cause notice was not barred even under sub section (3) of section 32, as at the relevant time the period of limitation provided in subsection (3) of section 32 was six months from the relevant date. The assessment was completed on 23‑6‑1993; while the show‑cause notice was issued on 24‑8‑1993 i.e. after two months of the relevant date. The Members of the Tribunal had passed strictures against the Customs Officials, which were totally uncalled for and were thus expunged. The impugned order of the Tribunal was not sustainable in law which was set aside. The question of law was answered in negative.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.30 & 79 [as stood in 1993]‑‑‑Iqra Surcharge‑‑‑Exemption, claim of‑‑‑Date for claiming exemption from Iqra Surcharge was not the date when the bill of entry was filed but the date on which the manifest was delivered.

Jawaid Farooqi for Appellant.

S. Mahmood Ali Askari for Respondent.

Date of hearing: 2nd December, 2003.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.‑‑‑This appeal at the instance of the revenue is directed against the order dated 24‑11‑1998 passed by the learned Customs, Central Excise and Sales Tax Appellate 'Tribunal in Appeal No.K‑206 of 1997. The appeal was admitted to consider the following question of law:‑‑

"Whether on the facts and in the circumstances of this case the learned Appellate Tribunal was justified in holding that the crucial date for claiming exemption from Iqra Surcharge was the date when the bill of entry was filed and not the date on which the manifest was delivered?

Succinctly stated the relevant facts are that the respondent imported certain textile/dying machine. The bill of entry was filed in advance on 23‑6‑1993 under section 79(2) of the Customs Act, 1969, claiming exemption from payment of customs‑duty, sales tax and surcharge under S.R.Os. 791(I) of 1991 dated 15‑8‑1991 and 500 (I) of 1988 dated 26‑6‑1991. The exemption claimed was allowed. Subsequently, information was received by the Appraising Intelligence Branch that the respondent in connivance with the clearing agent had got released the machinery without payment of 5% Iqra surcharge. The scrutiny of the documents revealed that the bill of entry was presented on 23‑6‑1993 under section 79(2) of the Customs Act, 1969, before the delivery of manifest. On the same date the concerned group finalized the assessment free of customs duty and sales tax extending benefit under S.R.O. 791(I) of 1991 and S.R.O. 500(I) of 1988. It was found that the exemption from payment of Iqra Surcharge was claimed under S.R.O. 560(I) of 1993 dated 4‑7‑1993 on the basis of bill of entry filed on 23‑6‑1993. It was also discovered that the relevant manifest bearing No. 1371 of 1993 was delivered on 8‑7‑1993 and machine number was allocated on the said date. A show‑cause notice was therefore, issued on 24‑8‑1993 stating the above facts with the version that crucial date for levy of customs duty and other taxes was 8‑7‑1993 on which date the manifest was delivered. Reliance was placed on proviso to section 30 of the Customs Act, 1969. It was further stated in the show‑cause notice that S.R.O. 560(1) of 1993 dated 4‑7‑1993 exempted the payment of Iqra Surcharge on the goods importable free of duty under S.R.O. 791 (I) of 1991, if the bill of entry for home consumption was filed between 14‑6‑1993 to 30‑6‑1993. Since the manifest was filed on 8‑7‑1993 i.e. after 30‑6‑1993, the benefit of S.R.O. 560(I) of 1993 was not available to the respondent and Iqra Surcharge at 5% was chargeable. It was further alleged in the show‑cause notice that the importer in connivance with the clearing agent 'made false statement to avail himself of the benefit of S.R.O. 560(I) of 1991, thereby deliberately causing loss to the Government revenue to the tune of Rs.16,51,834 which was payable by the respondent. It was further stated in the show‑cause notice that a mis-declaration was made which was an offence under section 32 of the Customs Act, 1969 punishable under clause (14) of section 156(i) of the Customs Act, 1969 and the short levy was to be recovered under section 32(2) of the Customs Act. The respondent neither submitted any written explanation nor availed the opportunity of hearing, therefore, the Collector proceeded ex-parte holding that under proviso to section 30, the relevant date for determination of rate of duty was the date on which the manifest of the conveyance was delivered. He ultimately held that, the relevant date in the facts and circumstances of this case was 8‑7‑1993 on which date the exemption from payment of Iqra Surcharge was not available. The Collector, therefore, directed the respondent to deposit the short paid taxes amounting to Rs.16,51,834.00. A penalty equal to 20% of the taxes evaded was also imposed on the respondent. A penalty of Rs.50,000 was imposed on the clearing agent for conniving with the importers in evasion of taxes.

Being aggrieved with the punishment given above, the respondent preferred appeal before the learned Customs, Excise and Sales Tax Appellate Tribunal (hereinafter refer to as Tribunal).

It was contended on behalf of the respondent before the Tribunal that the exemption from Iqra Surcharge was available to them in terms of notification No. S.R.O. 560(I) of 1993 dated 4‑7‑1993 read with Notification Nos.791(I) of 1991 dated 15‑8‑1991 and S.R.O. 848(I) of 1991 dated 26‑8‑1991, as the bill of entry was filed on 23‑6‑1993. It was submitted that the Collector has wrongly held that, crucial date for the purpose of rate of date and taxes was 8‑7‑1993, which was an attempt to deny the respondent, which was available to them. It was further contended that the custom officials had thoroughly examined all the necessary documents and therefore, it was unfair to allege on a subsequent date that a misdeclaration was made. It was maintained that nothing was concealed and at best it was a case of misinterpretation but the allegation of misdeclaration was totally unwarranted and uncalled for.

A Division Bench of the learned Tribunal hearing the appeal,' agreed with the contentions of the respondent's representative and held that since the respondent had filed the bill of entry, on 23‑6‑1993, therefore, they became entitled to the exemption from payment of Iqra Surcharge. It was further held that, since no concealment was made by the respondent or his clearing agent, therefore, no misdeclaration was made and at the most it could be a case covered under section 32(3) of the Customs Act, which became barred by limitation. The learned Tribunal ultimately set aside the order passed by the learned Collector.

The clearing agent had also filed appeal against imposition of penalty on him. This appeal was also allowed being consequential in nature.

Being aggrieved with the findings of learned Tribunal, the Department has preferred this second appeal before us.

We have heard Mr. Jawaid Farooqi, learned counsel for the appellant and Mr. S. Mahmood Ali Askari, learned counsel for the respondent.

Mr. Jawaid Farooqi, learned counsel for the appellant has submitted that so far the facts are concerned, they are admitted and the sole point which requires consideration is as to what is the relevant date for the purpose of payment of customs duty and taxes. He has submitted that the respondent presented the bill of entry on 23‑6‑1993 in advance under section 79(2) of the Customs Act. Admittedly the manifest of conveyance was delivered on 8‑7‑1993 and consequently for the purpose, of determination of rate of import duty shall be the date when the manifest of the conveyance is delivered and under explanation to section 30 the manifest means when a machine number is allocated to bill of entry or goods declaration and is registered in the customs record. He has therefore, submitted that the learned Tribunal has erred in holding that the relevant date for the purpose of determination of the customs duty and taxes was filed. He has contended that the learned Tribunal ignored the provisions contained in section 30 of the Customs Act.

On the other hand, Mr. S. Mahmood Ali, learned counsel for the respondent has supported the impugned order of the learned Tribunal.

We have considered the contentions raised by the learned Advocates for the parties and the relevant material available on record.

At the very outset, we would like to express our dismay on the poor assistance provided to us by both the learned Advocates for the parties.

Both the learned Advocates have addressed their arguments on the basis of law as existing in the year 2003. We would like to emphasize that the law as in force on the date of commission or omission of an act and the date on which a right accrues to a person or liability is incurred, is the relevant law and not the law as in force at the time of hearing of a case at original stage or appellate one. As there are numerous and frequent amendments in tax laws. Therefore, all the Advocates practising on tax side are specially required to get them abreast of all changes in law and the law as in force on the date when a tax is to be levied, failing which the miscarriage of justice is bound to occur.

In the present case, both the learned Advocates were totally unaware of the law prevailing in the months of June and July, 1993 when the bill of entry was filed and manifest of conveyance was delivered. The result is that their entire arguments are misdirected. We would further like to observe that, learned Members of the Tribunal also appeared to be unaware of the law prevailing at the relevant time and consequently, they have neither referred to the law prevailing at the relevant time nor have discussed the same and have decided the appeal out of total ignorance. The learned Members of the Tribunal just groped in dark in total ignorance of the law prevailing in the months of June and July, 1993.

In order to correctly appreciate the legal position in the wake of admitted facts, its would be appropriate to reproduce the provisions contained in section 30 and section 79(2) of the Customs Act, as prevailing at present, and in the year 1993.

Law as in force in 2003:‑‑

"Section 30:

Date of determination, of rate of import duty.‑‑‑"The rate of duty applicable to any imported goods shall be the rate of duty in force:‑‑‑

(a) In the case of goods cleared for home consumption under section 79, on the date on which a bill of entry or goods declaration is manifested under that section:

and

(b) In the case of goods cleared from a warehouse under section 104, on the date on which a bill of entry or goods declaration for clearance of such goods is manifested under that section:

Provided that, where a bill of entry or goods declaration has been manifested in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes ~ of this section shall be the date on which the manifest‑of the conveyance is delivered at the port of first entry:

Provided further that, in respect of goods for the clearance of which a bill of entry or goods declaration for clearance has been manifested under section 104, and the duty is not paid within seven days of the bill of entry or goods declaration being manifested, the rate of duty applicable shall be the rate of duty on the date on which the duty is actually paid:

Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of rate of duty."

Section 79(2)

"A bill of entry or goods declaration under subsection (1) may be presented at any time before or after the delivery of the manifest."

The law as in force in 1993

Section 30

"Date for determination of value and rate of import duty.‑‑‑The value of, and the rate of duty applicable to, any imported goods shall be the value and the rate of duty in force:‑‑‑

(a) In the case of goods cleared for home consumption under section 79, on the date on which a bill of entry is presented under that section; and

(b) In the case of goods, cleared from a warehouse under section 104, on the date on which a bill of entry for clearance of such goods is presented under that section:

Provided that, where a bill of entry has been filed to advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered:

Provided further that, in respect of goods for the clearance of which a bill of entry‑ for clearance has been presented under section 104, whether before or after the commencement of the Finance Ordinance, 1979; and the duty is not paid within seven days of the bill of entry being presented; the value and rate of duty applicable on the date on which the duty is actually paid:

Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of value and rate of duty."

Section' 30 was `substituted by Finance Act, 1998 but the provision yeas not enforced for want of notification under section 1(3) of the Finance Act, 1998. Subsequently, section 30 was substituted in the present form by Finance Act 1999 and was enforced by Notification No.S.R.O. 1375(I) of 1999 dated 28th of December, 1999 issued under section 1(3) of the Finance Act, 1999 with effect from Ist of January, 2000.

Section 79(2) as it stands at present was substituted for the original subsection (2) of section 79 by Finance Act, 1994. The words "or goods declaration" in the above provision as it stands at present were inserted by Finance Act, 2003. Prior to substitution of section 79(2) by Finance Act, 1994, as it stood in the year 1993 read as follows:‑‑

"A bill of entry under subsection (1) may be presented at any time after the delivery of the manifest:

Provided that the appropriate officer may, in any special circumstances, permit a bill of entry to be presented before the delivery of the manifest."

A perusal of subsection (2) of section 79 as it stood in the months of June and July, 1993 shows that a bill of entry under subsection (1) of section 79, could be presented at any time after the delivery of the manifest. However, under proviso the appropriate officer was empowered, in any special circumstances to permit bill of entry to tie presented before the delivery of the manifest. At the relevant time a bill of entry could not be filed before the delivery of manifest, as a matter of right. It could be filed with the permission of the appropriate officer. No material has been produced before us by any of the parties and there is nothing on record from which it could be examined whether the bill of entry was filed on 23‑6‑1993 before the delivery of manifest with the permission of appropriate officer or without the permission or appropriate officer. However, keeping in view the principle that when there is any ambiguity, it is to be resolved in favour of an assessee and not the State, we are inclined to hold that when the Department has alleged in para. 1 of the memo. of appeal that the bill of entry was filed on 23‑6‑1993 and the concerned group finalized the assessment on the same date, it was filed with the permission of the appropriate officer. Thus, it is held that the bill of entry was lawfully filed on 23‑6‑1993.

Now coming to the provisions of section 30 as it stood in the year 1993, we find that the value of, and the rate of duty payable to, any imported goods was to be taken at the value and the sate of duty in force in case of goods declared for home consumption under section 79, on the date on which a bill of entry was presented under that section. However, the first proviso dealt with the situation as in the present case. A bare perusal of the first proviso to section 30 as it stood in the year 1993 shows that the issue under consideration is fully clinched with this provision. According to proviso where a bill of entry has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of section 30 shall be the date on which the manifest of the conveyance is delivered. It is admitted position that in the present case the bill of entry was filed in advance of the arrival of conveyance on 23‑6‑1993 but the manifest was delivered on 8‑7‑1993. Thus, the relevant date for the purposes of section 30 was 8‑7‑1993, on which date the manifest of conveyance was delivered. The finalisation of assessment on 23‑6‑1993 by the concerned group of the Custom Department, prior to the arrival of conveyance was totally unwarranted and demonstrated collusion on the part of respondent, bringing the case within the purview of subsection (2) of section 32. The learned Collector had thus rightly issued the show‑cause notice and had passed the order for the, retrieval of the taxes‑short levied. The penalty was also not open to any exception. It is also pertinent to note that the respondent had not filed any written reply in response to the show‑cause notice issued by the Collector with the result that the allegations in the show‑cause notice had gone un‑rebutted which clearly amounts to admission of the facts alleged in the show‑cause notice. The learned Member of the Tribunal have clearly misdirected in coming to the contrary conclusion while allowing the appeal. The learned Members of the Tribunal have not considered the law as it prevailed at the relevant time. They have committed an error in observing that the version put-forth by the respondents before the Tribunal was more logical, weighty, well‑founded, well‑substantiated and definitely in line with the spirit and contents of the governing notification. Without adverting to the provisions contained in section 30 of the Customs Act, the learned Members of the Tribunal have formed opinion that the bill of entry was filed on 23‑6‑1993 and therefore, the respondents became entitled to exemption from payment of Iqra Surcharge. We find another gross mistake on the part of learned Members of the Tribunal. Without properly appreciating the facts, in the light of the provision contained in section 30, they have observed that the act alleged on the part of respondents does not fall within the provisions of section 32(2) of the Customs Act and at the best it falls within the purview of section 32(3) and which became barred by limitation. All these observations have been made out of total ignorance of the relevant provisions of law and non -appreciation of facts. First, the collusion of the Customs Officials is apparent on the face of record. The assessment was made on 23‑6‑1993 before the arrival of the conveyance, in flagrant violation of the provisions contained in the first proviso to section 30. Secondly, the show‑cause notice was not barred even under subsection (3) of section 32, as at the relevant time the period of limitation provided in subsection (3) of section 32 was six months of the relevant date. The assessment was completed on 23‑6‑1993, while the show‑cause notice was issued on 24‑8‑1993 i.e. after two months of the relevant date. The learned Members of the Tribunal have passed stricture's against the Customs Officials, which are totally uncalled for and are hereby expunged. The impugned order of the learned Tribunal is not sustainable in law which is hereby set aside. The question of law reproduced in the earlier part of this judgment is answered in negative.

The appeal is allowed as above.

A copy of this judgment be sent to the Tribunal with the direction to pass appropriate order necessary to dispose of the case conformably to this judgment.

M.B.A./C‑89/K Order accordingly.