Messrs MAKAMA STEEL CRAFTS (PVT.), LTD. through Chief Executive VS COLLECTOR OF CUSTOMS, PESHAWAR and another, 2004 PTD-SUPREME-COURT 741 (2003)

(On appeal from the judgment, dated 25‑6‑2003 of the Peshawar High Court, Peshawar passed in F.A.O. No.63 of 2002).

Customs Act (IV of 1969)‑‑‑

‑‑‑Ss. 16,‑ 18, 19 & 196‑‑‑Imports and Exports (Control) Act (XXXIX of 1950), S. 3(1)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Mis -declaration by importer at the time of import‑‑‑Levy of duty only to the extent of physically verified‑by Customs Authorities‑‑‑New plea, raising of‑‑‑Tin free steel sheets, CRC steel sheets and tin plates were actually imported but the same were declared as Electro galvanized sheets and accordingly, the import duty was paid‑‑‑Customs Authorities after is‑suing show‑cause notice to the importer, imposed penalty‑‑‑Only 10 % of the goods imported having been inspected at the time of import, therefore, Appellate Tribunal reduced the penalty to the extent of 10%‑‑ Order passed by the Appellate Tribunal was maintained by High Court in exercise of appellate jurisdiction‑‑‑Plea raised by the importer was that his application for amendment of memorandum of appeal was wrongly dismissed by the Appellate Court‑‑‑Validity‑‑‑Record as well as the findings of Tribunal and High Court had established that the importer had mis-declared description of the goods and claimed evasion of tax‑‑ Importer, at appellate stage, sought amendment in memorandum of appeal to the extent that the place of S.R.O. No.602, S.R.O. No.643 be substituted‑‑‑Importer, in reply to the show‑cause notice, had not claimed any concession under S.R.G. No.643, thus the amendment was rightly declined‑‑ ‑Supreme Court declined to interfere with the orders passed by Appellate Tribunal and High Court‑‑‑Leave to appeal was refused.

Muhammad Khalid Mehmood Khan, Advocate Supreme Court for Petitioner.

Raja Muhammad Irshad, D.A.‑G. For Respondents

Date of hearing: 12th November, 2003.

JUDGMENT

ABDUL HAMEED DOGAR, J.‑‑‑By this petition for leave to appeal, Messrs Makama Steel Crafts (Pvt.) Ltd. the petitioner calls in question judgment, dated 25‑6‑2003 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby F.A.O. No.63 of 2002 filed by the petitioner was dismissed.

2. The facts leading to the filing of the instant petition are that the petitioner a private limited company had set up an Industrial Unit in Gadoon Amazai, District Swabi, for manufacturing of agricultural implements and automotive vehicles parts. For the import of raw material on concessional rate of Customs Duties and Sales Tax, the petitioner claimed benefits of S.R.O. No.601(1)/83, dated 11‑6‑1983 and S.R.O. No. 643(1)/91. On the report that the petitioner has misdeclared the description of the goods and the petitioner has imported tin free steel sheets, C.R.C. steel sheets and tin plates in the garb of electro galvanized sheets and thereby wrongfully availed the concession under S.R.O. No.602 thus the Customs staff examined and scrutinized the four bills of entry, three of them, dated 2‑4‑1994 and one, dated 31‑7‑1994 and found that the petitioner had in fact imported tin free steel sheets, CRC steel sheets and tin plates and misdeclared as Electro galvanized sheets at the time of filing of bill of entry for bond at Customs House, `Karachi. The petitioner, however, with the connivance of the Customs Clearing Agents, managed to ex‑bond these goods and transported the same to the bonded warehouse of the factory at Gadoon Amazai. On this declaration, a show‑cause notice was issued to the petitioner by Collector, Collectorate of Customs and Central Excise, Peshawar on 13‑5‑1995 mentioning therein that due to above misdeclaration, the petitioner had evaded customs duty to the tune of Rs.10645502, Sales Tax Rs.3885758 and other taxes Rs.505810 and thereby contravened the provisions of sections'16, 18, 19, 20, 25, 26, 30, 32, 45, 49, 79, 88, 104 and 116 of the Customs Act, 1969 (hereinafter referred to as `the Act'), read with section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under clauses (1), (9), (10‑A), (12), (14), (26), (44), (45), (59), (62), (90), (91) and (6) of section 156(1) of the Act and were called upon to show cause within seven days, as to why besides taking penal action, the amount of Rs.1,51,27,073 evaded by them' should not be recovered under the aforesaid provisions of law.

3. Neither anyone appeared on behalf of the petitioner nor any written reply to the above said show‑cause notice was received by the respondent, as such, the matter was decided ex parte vide order, dated 22‑3‑1997, by the Collector, wherein the petitioner was ordered to pay tax mentioned in the show cause with penalty amounting to Rs.7,500,30. A penalty of Rs.50,000 was also imposed upon the Customs clearing Agent as misdeclaration was done with his connivance. The petitioner assailed this order in. appeal before the Customs Central Excise and Sales Tax Appellate Tribunal, Islamabad, (hereinafter referred to as `the Tribunal'), which was allowed and matter was remanded to the Collector for re‑adjudication after providing opportunity to the petitioner to present his case. It was after the remand, the petitioner replied to the show‑cause notice but the Collector again by detailed order, dated 29‑6‑1999 held that since the goods have been consumed it would not be possible to assess and quantify the tin free sheets, CRC steel sheets and tin plates which were imported in consignment and declared as electro galvanized sheet. Since the Customs staff at Karachi had examined only 10% of the consignment and its report related only to the goods so examined, as such., the duty and taxes were directed to be paid on the quantity of the goods which had been reported on each bill of entry for bond at the' Customs House Karachi Rs.7,500,000 was again imposed and so also the penalty as passed in the original order. A fresh inquiry was also ordered into the matter. This order was assailed in appeal before the Tribunal and it was during its pendency the petitioner moved an application for amendment in the memorandum of appeal to the extent that for S.R.O. No. 602, S.R.O. No. 643 be substituted alongwith some other minor amendments. The Tribunal, however, dismissed the appeal on 9‑1‑2002 with the modification holding that the petitioner shall be charged customs duties and taxes on only 10 % on the goods imported through the above mentioned bills of entry whereas on the remaining 90 % of the goods taxes should not be recovered. The penalty on the petitioner was also reduced to Rs. Two millions, whereas on the agent was left intact. It was this decision which was challenged before the learned High Court in F.A.O. No.63 of 2002.

4. We have heard Mr. Muhammad Khalid Mehmood Khan, learned Advocate Supreme Court for the petitioner and Raja Muhammad Irshad, learned .DAG for the respondents and have gone through the record and proceedings of the matter in minute particulars.

5. Learned counsel for the petitioner mainly contended that at the time of in‑bonding and ex‑bonding of the raw material the Customs Officials at Gadoon Amazai examined and did not report any discrepancies with respect to the declaration mentioned in the bills of entry and goods examined by them. Had there been any discrepancy with respect to the declaration, made in the bills of entry, goods would not have been allowed to be transported from Karachi to Gadoon Amazai and it was at that time, a show‑cause notice should have been issued. Since the samples were neither retained at Karachi nor at Gadoon Amazai as such the allegations in the show‑cause notice were not sustainable in law. As regards the concession under S.R.O. No.643, learned counsel claimed that S.R.O. No.602 was wrongly mentioned in the show‑cause notice, thus ensuing proceeding proceeded on wrong premises. It was, therefore, an application for amendment in the memorandum of appeal was moved before the Tribunal which was not allowed and was wrongly dismissed.

6. On the other hand, learned counsel for the respondents mainly contended that .the petitioner tried to make out a new case by moving an application to bring amendments in the memorandum of appeal before the Tribunal claiming the benefits of S.R.O. No.643 at the place of S.R.O. No.602. As no pea was taken by the petitioner in reply to show cause notice, as such, the same was untenable at that belated stage. .He lastly emphasized that the appeal before the High Court under section 196 of the Act, was competent only in respect of any question of law arising out of, the order passed under section 194(b) of the Act by the Tribunal.

7. It has been established from the record as well as from the findings of the Tribunal and the High Court that the petitioner had mis declared description of the goods and claimed evasion of tax under S.R.O. No.602 which fact is evident from the reply to the show‑cause notice wherein he has not claimed any concession under S.R.O. No.643, thus the stance taken by the petitioner at the appellate stage by moving an application for bringing an amendment in the memorandum of appeal to the extent that at the place of S.R.O. No.602, S.R.O. No.643 be substituted was rightly declined. Moreover, only 10% of the total consignment was examined by the Customs staff at Karachi; as such, the petitioner was rightly afforded the benefit of 90 % of the goods by the Tribunal as well as by the learned High Court. The appear before the High Court. Even otherwise, the appeal under section 196 of the Act was not competent as the Tribunal has not referred any question of law arising out of its order to the High Court for determination.

8. For all these reasons, we feel that this is not a fit case for grant of leave to appeal. Accordingly the petition is dismissed and leave refused.

M.H./M-5/SCPetition dismissed.