Messrs PAKISTAN DRY BATTERY MANUFACTURERS ASSOCIATION through Vice-Chairman VS FEDERATION OF PAKISTAN
2006 P T D 1119
[Karachi High Court]
Before Gulzar Ahmed, J
Messrs PAKISTAN DRY BATTERY MANUFACTURERS ASSOCIATION through Vice-Chairman and another
Versus
FEDERATION OF PAKISTAN through Secretary, Revenue Division, Islamabad and 9 others
S. No. 551 of 2005, decided on 20/01/2006.
(a) Customs Act (IV of 1969)---
----S. 25---Determination of value of imported goods on basis of valuation advice---Principles.
There is a judicial consensus that it is the function of Customs Authorities to determine value of imported consignment in terms of section 25 of Customs Act, 1969 and the Rules made thereunder. There is no provision in Customs Act, 1969 or its Rules, where Customs Authorities may make or have a fixed predetermined value of imported consignment in the form of valuation advice. issued by an Officer of Customs Department. It matters not whether the valuation advice is made with inquiry or with tise consent of the person affected by the valuation. Apparently, the valuation advice goes contrary to the provisions of section 25(1) of Customs Act, 1969, which provides that the transaction value to be Customs value of imported goods subject to the provisions of this Section and the Rules. If the transaction value as declared by the importer cannot be determined, the provisions of this section and the Rules provide an in-built mechanism for the Customs Authorities to determine the value of imported goods. Fixed valuation of imported goods by way of valuation advice obtained by any means cannot be made the basis for determining the value of imported goods each of which has to be dealt with and processed in accordance with section 25 of Customs Act, 1969 and the Rules and thereunder.
In the present case, the valuation advice between parties may not be taken as conclusive evidence of valuation, and final assessment will he made of imported goods by Customs Authorities in accordance with the provisions of section 25 of Customs Act, 1969 and the Rules after providing clue opportunity to the importer to place material with regard to the value declared by it. It does not appear to be necessary for Customs Authorities to review or revise valuation advice, because it will be an exercise in futility as the reviewed or revised valuation advice again will not be the only basis for arriving at the valuation of imported goods as it valuation still, will have to be made under section 25 of Customs Act, 1969 and the Rules. This is the mandate of law, which has to be fulfilled.
Shoaib Khan v. Collector of Customs Appraisement, Karachi, 2005 PTD 1069; Moon Corporation v. Central Board of Revenue 2004 PTD 2615; Collector of Customs (Exports) v.. Messrs Chemitex Industries (Pvt.) Ltd. 2002 MLD 836; A1-Mughni Trading Company v. Deputy Collector of Customs Lahore, 2005 PTD 2201; Messrs Sohrab Global Marketing (Pvt.) Ltd. v. Deputy Collector of Customs Lahore, 2005 PTD 67; Messrs Yousuf Enterprises v. Collector, 2005 PTD 21; 2005 PTD (Trib.) 617; Messrs Steel Syndicate v. Deputy Collector of Customs, 2005 PTD 1600; Kashif Nasim v. Collector of Customs (Appraisement) Karachi 2005 PTD 1971 and Messrs Kings Pen Company v. Collector of Customs (Appraisement) Karachi 2005 PTD 118 ref.
(b) Customs Act (IV of 1969)---
----S. 25-A---Importer's rights to buy goods---Offer of importer to buy goods neither higher than declared value nor accompanied by pay-order equal to 25% of amount of such value, dues and other taxes leviable thereon---Importer was not entitled to goods as there was no offer on his behalf in terms of S. 25-A(1)(i) of Customs Act, 1969.
Abid S. Zuberi for Plaintiff.
Raja M. Iqbal for Defendants Nos. 2, 3 and 5.
Jawed Farooqui Defendant No. 4.
Shall Siddiqui for Defendants Nos. 6 and 7.
Dates of hearing: 17th, 18th, 19th and 20th January, 2006.
ORDER
GULZAR AHMED, J.---Learned counsel for the parties before commencing the arguments on the listed applications have jointly agreed that the arguments advanced by them will cover the main dispute raised in the suit and as no oral evidence is required to be recorded and whatever documentary evidence that was to be relied upon by them has been placed on the record, and while disposing of the listed applications the main suit may also be disposed of. Consequently I have heard lengthy argument of the learned counsel for disposal of the listed applications as well as the main suit.
Brief facts as alleged in the plaint ire that plaintiff No.1 is a registered Trade Organization and is a representative body of local dry battery cell manufacturers and is a Member of the Federation of Pakistan Chamber of Commerce and Industry while the plaintiff No. 2 is a local manufacturer of dry battery cell. It is alleged that on account of under invoicing and under valuation of imported dry battery cells, the plaintiff No.1 and its members including the plaintiff No.2 are unable to compete with the imported dry battery cells as they are available in the market at cheaper rates and for this reason government is also losing huge amount on account of dues and taxes. It is alleged that this illegality is being committed in collusion by the defendants 2 to 4 who are the officials of Customs with remaining defendant who are importers of dry battery cells which is mala fide and arbitrary. The defendant No.2 vide its letter, dated 7-2-2005 called the plaintiff No.1 and defendants 6, 7 and 8 and others for hearing to consider the valuation of the imported dry battery cells into Pakistan. In this respect the plaintiff No.1 made a representation, dated 15-2-2005 complaining that the dry battery cells being imported in Pakistan arc grossly under invoiced and on this account several units manufacturing dry battery cells have closed down and it is feared that more units may be forced to close down causing loss of jobs and capital investment. On 16-2-2005 meeting was held by the Director of Customs Valuation and PCA the defendant No.2 with the plaintiffs and defendants 6, 7 and 8 who conducted further hearings to finalize the valuation of imported dry battery cells. On the basis of the hearing the defendant No.2 issued a valuation advice, dated 19-3-2005 under section 25 of the Customs Act, 1969 revising the valuation advice, dated 9-3-2004. Subsequently the meeting was convened by Director-General Customs Valuation and PCA on 12-4-2005 on the issue of imported dry battery cells at which the plaintiff's, defendants 6, 7 and 8 and other importers attended. After discussion it was resolved that defendants 6, 7 and 8 will surrender dry battery cells imported by them in terms of section 25-A of the Customs Act, 1969 to the plaintiff No.1 to purchase the same on the valuation as per valuation advice, dated 19-3-2005. The defendant No.6 however, lodged a false complaint, dated 13-4-2005 to the Director-General Customs Valuation and PCA, Islamabad against valuation advice, dated 19-3-2005. The plaintiff No.1 however, through its letter, dated 12-4-2005 conveyed to the defendant No.2 its acceptance of the offer 9f the importers of dry battery cells and requested to provide details of the consignment so that an offer in writing to buy the imported goods sought to be cleared at value declared by the importers could be made by plaintiff No') constituent member in terms of' section 25-A of the Customs Act. Plaintiff received no reply to this letter. Again plaintiff No.1 wrote its letter, dated 15-4-2005 to the defendant No.2 for providing details of the imported consignment. The Deputy Director Valuation, the defendant No.3 through its letter, dated 15-4-2005 addressed to the Deputy Collector of Customs Appraisement-VI, Karachi directed him to process the request of defendant No.1 under section 25-A of the Customs Act and the plaintiff was asked to approach the Deputy Collector of Customs Appraisement. The plaintiff again through its letter, dated 16-4-2005 to the defendant No.2 asked for complete details of' imported dry battery cells but it was also not replied.
It is further alleged that the Deputy Director Valuation through its letter, dated 20-4-2005 called a meeting on 21-4-2005 on the representation of the importers which act was contrary to the decision and legal and vested right of the plaintiff. The plaintiff No.1 through its letter, dated 20-4-2005 informed the defendant No.2 that short notice has been given and that its Chairman is out of town and requested for re-fixing of the meeting in the next week. It is alleged that this short notice was issued to give undue favour to the importers. It is alleged that despite this request of the plaintiff No.1, the meeting was held wherein decision was taken that valuation advice, dated 19-3-2005 is put in abeyance and the goods imported by defendants 6, 7 and 8 and other importers be provisionally assessed under section 81 of the Customs Act, 1969 on the basis of the earlier valuation advice, dated 9-3-2004., It is alleged that the provisional clearance of imported goods is illegal void, ab initio and mala fide as the plaintiff has accepted the offer to buy the goods imported by defendants 5, 6 and 8 and that it is also illegal as it is contrary to the valuation advice, dated 19-3-2005. On 27-4-2005 this suit was filed with the following prayer:
(a) Declare that the consignment of imported dry battery cells can only be cleared on the basis of Valuation Advice, dated 19-3-2005.
(b) Declare the decision taken by the Defendants Nos.2, 3 and 5 in the purported meeting, dated 21-4-2005 keep the Valuation Advice No. Reg. 1/199/2003-VA/1699, dated 19-3-2005 held in abeyance and goods of the Defendants No.6, 7 & 8 and other importers be cleared on the basis of the earlier Valuation Report, dated 9-3-2004 is illegal, mala fide, without jurisdiction and violative of rules .of natural justice and Articles 4, 18, 24 and 25 of the Constitution of Pakistan.
(c) Permanent injunction restraining the defendants Nos. 2, 3, 4, 5, their officers, assigns, representatives and any other person(s) acting through or under them releasing/clearing the goods/ consignments of defendants Nos. 6, 7 and 8 and any other importers, releasing the goods/consignment either provi sionally or otherwise, under the earlier Valuation Advice, dated 9-3-2004.
(d) Mandatory Injunction directing the Defendants 2 to 5 to clear the imported consignment to the Plaintiff under section 25-A of the Customs Act, 1969 as agreed on 12-4-2005.
(e) Any other relief this Hon'ble Court deems fit and proper under the circumstances.
(f) Cost of this suit.
With the plaint an application for injunction being C.M.A. 2940 of 2005 was also filed on which an order, dated 25-4-2005 was passed whereby the operation of the valuation advice, dated 9-3-2004 and the decision, dated 21-4-2005 was suspended. The defendants 2, 3 and 5 have filed a joint written statement while a separate written statement has been filed by defendant No.4. None of the other private defendants have filed their written statement. On 19-9-2005 defendant No.6 filed two separate counter affidavits one in reply to CMA 2940 of 2005 and the other in reply to C.M.A. 6048 of 2005. The Defendant No.7 on the same date filed his counter affidavit to C.M.A. 6048 of 2005. A contempt application being C.M.A. 6304 of 2005 was filed to which counter affidavit has been filed by alleged contemnor namely Jawed Iqbal Butt, Deputy Collector. Appraisement-IV. The Plaintiff No.1 has filed rejoinder affidavit separately in reply to the country affidavits filed to C.M.A. 2940 of 2005 and C.M.A. 6048 of 2005.
Mr. Abid S. Zuberi, learned counsel for the plaintiff has made the following submissions:
(i) That the valuation advice, dated 19-3-2005 is made under section 25 of the Customs Act which is applicable to all imports of dry battery cells from China.
(ii) That there is an agreement between the Plaintiff No.1 and defendants that the plaintiff will purchase the imported consignments under section 25-A of the Customs Act, 1969.
(iii) That the decision, dated 21-4-2005 of the Defendant No.2 of putting the valuation advice, dated 19-3-2005 in abeyance and allowing imported goods to be provisionally assessed under section 81 of the Customs Act, 1969 on the basis of valuation advice, dated 9-3-2004 is illegal.
He has relied upon a judgment, dated 11-11-2005 passed by a Judge of' the Lahore High Court in W.Y. No.15076 of 2005.
On the other hand Mr. Raja M. Iqbal, learned counsel for defendants 2, 3 and 5 has made the following submission:
(i) That Customs Authorities has to undertake valuation of the imported consignment under section 25 of the Customs Act and the Rule made thereunder and that the letter, dated 19-3-2005 which is being referred to as valuation advice related to the valuation of goods which were then imported.
(ii) That orders have been passed in C.P. No.D-394 of 2005 and in C.P. No.D-659 of 2005 allowing the Customs Authorities to make valuation of the imported consignments.
(iii) That the plaintiff and private defendants arc inclusion with each another.
(iv) That section 25-A of the Customs Act does not provide for giving of consignment of importer to some other persons in all situation and there is no agreement for delivery of imported consignment of dry battery cell to the plaintiff.
(v) That though there are directions given in the above noted two constitutional petitions for making assessment of the imported consignment of dry battery cells but it is not being undertaken because of the interim order passed in this suit.
In support of his submission he has relied upon the case of Shoaib Khan v. Collector of Customs Appraisement, Karachi (2005 PTD 1069), the case of Moon Corporation v. Central Board of Revenue, (2004 PTD 2615) and the case of Collector of Customs (Exports) v. Messrs Chemitex Industries (Pvt.) Ltd. (2002 MLD 836).
Mr. Shafi Siddiqui, learned counsel for the defendants 6 and 7 has made the following submissions:
(i) That the suit is not maintainable and the prayers made in it are not grantable in law.
(ii) That the valuation advice, dated 19-3-2005 cannot remain in the field for all times to come and that there is no law to support it.
(iii) That because of the interim order passed in this suit, the Customs Authorities have not taken steps for assessment under section 25(1) of the Customs Act on the imported consignment of the defendants.
(iv) That the plaintiff has failed to comply with its obligation under the alleged agreement.
(v) That fixing of valuation is not possible as every importer places order with his own specification of dry battery cells which have different price and no one yardstick can be fixed for varying types of dry battery cells.
(vi) That some of the members of plaintiff No.1 are themselves indulging in import or dry battery cells.
(vii) That when assessment is made under section 25(1) of the Customs Act by adding 30% on the declared value then only the provisions of section 25-A come into operation.
(viii) That the China Market from where the dry battery cells are imported is very unstable, infirm, volatile and keep on fluctuating and therefore, no fix valuation can be made.
(ix) That in CP-D 394 of 2004, 398 of 2004 and 659 of 2005 Division Benches of this Court has given directions to the Customs Authorities to make assessment under section 25 of the Customs Act and not accepted valuation advice, dated 19-3-2005 for assessment of defendants consignment.
He has relied upon the case of Al-Mughni Trading Company v. Deputy Collector of Customs Lahore, (2005 PTD 2201), Messrs Sohrab Global Marketing (Pvt.) Ltd. v. Deputy Collector of Customs Lahore, (2005 P1'D 67), Messrs Yousuf Enterprises v. Collector (2005 PTD 21). Decision in Customs Appeals Nos. 1668/LB and 1669/LB of 2002, dated 24-5-2004 of the Customs Central Excise and Sales Tax Appellate Tribunal, 2005 PTD (Trio.) 617, Messrs Steel Syndicate v. Deputy Collector of Customs, (2005 PTD 1600), Shoaib Khan v. Collector of' Customs Appraisement Karachi, (2005 PTD 1069) and Kasif Nasim v. Collector of Customs (Appraisement) Karachi (2005 PTD 1971).
I have considered the arguments of the learned counsel and have gone through record.
The main grievance of the plaintiff is that the defendants are not abiding to the valuation advice, dated 19-3-2005 in which the valuation of dry battery cells imported from China was worked out after hearing the plaintiffs as well as the importers and keeping inn view LME (London Metal Exchange) prices of raw material and wholesale market price quoted from Chinese suppliers and that the importers are indulging in undervaluing the consignments of dry battery cells imported by them from China which are being sold at much lower price thus making the dry battery cells manufactured locally uncompetable in the market resulting in threat of closure of the local manufacturing units of dry battery cells. The defendants 2 to 4 have filed their written statements in which the existence of the valuation advice, dated 19-3-2005 is admitted but it is stated that a written representation was received from the Chamber of Commerce and Industries who protested against this valuation and requested to review and revise the same on which meeting was called. The private defendants who have not filed their written statements but have filed counter-affidavits to the plaintiffs applications have taken the stand that the valuation advice, dated 19-3-2005 is neither binding nor it is lawful as the assessment has to be made by the Collector of Customs and further that value of the imported goods under section 25 of the Customs Act cannot be fixed once for all as it is not static rather the prices in the international market keeps on fluctuating every day, every week and every month. The matter therefore, boils down to the question as to whether the valuation advice, dated 19-3-2005 has to be abided by the Customs Authorities for valuation of the imported dry battery cells from China. The question regarding the valuation advice issued by the Customs Authorities has time and again come up in Courts for consideration.
In the first place I will refer to the two Division Bench judgments of this Court, is being the case of Messrs Kings Pen Company v. Collector of Customs (Appraisement) Karachi (2005 PTD 118) wherein it was observed as follows:--
"The petitioner is aggrieved by the provisional assessment of duty on the subject consignment on the basis of annexures "D" and "E". Final assessment has not been done. The advice con tained in letters, dated 25-2-2004 and 9-4-2004 (Annexures "D" & "E") issued by the Collector of Customs valuation, Customs House, Karachi is nothing but an advice which has no binding effect. The final assessment is yet to be made, therefore, the above petitions are disposed of in the following terms:--
While making final assessment, Collector of Customs Appraisement Department will consider the evidence available and the letters referred to above, may not be taken as conclusive evidence of valuation. The final assessment in terms of section 25 of the Customs Act may be done with opportunity to the petitioner to place material to this effect."
In the case of Messrs Steel Syndicate (Supra) a Division Bench of this Court observed as follows:--
(3) Mr. Raja M. Iqbal learned counsel for the respondents has also placed before the copy of order, dated 26-10-2004 passed iii C.P. D-964 of 2004 wherein earlier view was followed by this Bench and petitioner, was disposed of with the following terms:--
"After examining the relevant case record and going through the two orders/judgments cited at the Bar by the learned counsel, we are inclined to dispose of this petition with the observation that final assessment of the petitioner shall be undertaken under section 81(2) of the Customs Act, 1969 by respondents and while making such assessment the Collector of Customs (Appraisement) Department will consider all the evidence available and the letter, dated 23-2-2004 will not be taken as conclusive evidence of valuation. Further the final assessment in terms of section 25 of the Customs Act will be done with proper opportunity to the petitioner to place material to that effect on record."
The petitions were disposed of in terms of the order reproduced above.
It may be noted that Muhammad Mubin Ansari the defendant No.9 had filed Constitutional Petition No. D-659 of 2005, Kashif Nasim the proprietor of Faisal Corporation the defendant No.6 had filed Constitutional Petition No. D-394 of 2005 and Nafis Fatima the proprietor of Nails Enterprises had filed Constitutional Petition No.D-398 of 2005. The plaintiffs were impleaded as respondents 4 and 5 in the latter mentioned two constitutional petitions which were disposed of vide two identical orders, dated 6-5-2005 by a Division Bench of this Court, the operative part of the order is as follows:--
"Without going into the debate as to the provisions/procedure of sections 25 and 25-A and without prejudice to the conditions and rights of the parties in any proceedings/suits and the orders passed we can dispose of this petition as follows:--
In view of the above, the petitioner will approach the concerned official respondents within ten days and to comply with the provisions of subsection (ii) and subsection (i) of section 25-A of the Customs Act, 1969 and deposit the entire amount i.e. admitted and disputed with the Customs Authorities. The Customs Authorities will release the goods of the petitioner and payment as above. The disputed amount deposited will be subject to the ultimate determination of' the value of the concerned authorities in accordance with law and subject to any other legal proceedings between the parties.
In the earlier mentioned constitutional petition a Division Bench of this Court passed an order, dated 22-9-2005 disposing of the petition observing as follows:
"Mr. Sohail Muzaffar, learned counsel for the petitioner has stated that he will be satisfied if a direction is given to the respondent No.1. Collector of Customs (Appraisement) Customs' House, Karachi, to get the valuation of the Consignment finalized in the light of section 25 of the Customs Act, 1969 from the valuation department within 15 days.
The learned Advocates for the respondents have no objection if the direction is issued to the Respondent No.1 as well as Valuation Department to finalize the valuation and determine the assessed value in accordance with the provisions contained in section 25 of the Customs Act, 1969, keeping in view the judgment of this Court in C. P. No. D-394 of 2005, dated 6-5-2005.
The petition is disposed of along with listed applications as not pressed with direction to the Collector of Customs (Appraisement) and Valuation Department to finalize the assessment/valuation within 15 days of receiving the copy of this order in the light of the provisions contained in section 25 of the Customs Act, and keeping in view the judgment of this Court referred to above."
In this petition the petitioner made an application complaining that order, dated 22-9-2005 was obtained through misrepresentation and fraud inasmuch as the contents of the order passed in C.P. No.394 of 2005 were not faithfully reproduced and the fact that a suit on the original side whereby an ad interim injunction had been granted restraining the respondents from effecting valuation was not mentioned. This application of the petitioner was disposed of with the following observation made in the order, dated 11-11-2005.
"There is nothing on record to show that the petitioner had knowledge of the order passed. In any event the entire order passed in C.P. No. 394 of 2005 was available before the Court when the order, dated 22-9-2005 was passed. Therefore, no substantial mispresentation or fraud appears to have been committed by the petitioner.
Nevertheless the parties arc faced with a genuine difficulty inasmuch as the respondents have been directed to finalize valuation by the aforesaid order, dated 22-9-2005. They have been restrained to do so in the order passed by the learned Single Judge in Suit No. 551 of 2005. Indeed the petitioner is interested in early valuation of the consignment. To resolve the difficulty Mr. Abid S. Zuberi undertakes to implead the petitioner as party to the suit and the petitioner would then be at liberty to contest the application for injunction which is expected to be heard and decided without further loss of time within four weeks from today. The direction to carry out valuation in terms of the order, dated 22-9-2005 is extended for a period of 35 days during which time the application in the suit is expected to be decided."
I will now refer to the cases decided by the Lahore High Court on the question of valuation advice. First one is the case of Messrs Sohrab Global Marketing (Pvt.) Ltd. (Supra) wherein it is observed as follows:-
"(6). This Court in W.P. No.7752 of 2004 titled Messrs Siddiq International v. Assistant Collector (Customs) referring to the finding in the cases titled Messrs Al-Huda Enterprises v. Central Board of Revenue and Wasim Khan v. Additional Collector of Customs. W.P. No.4319 of 2000 observed:
"3. That. Central Board of Revenue or any other authorized officer can fix the minimum customs value of goods specified in the First Schedule and Second Schedule through a Notification and impugned letter not being a Notification cannot have any legal effect whatsoever. Accordingly, it is declared to be without jurisdiction.
3-A. Under the provision of subsection (14) of section 25 of the Customs Act, 1969 Central Board of Revenue or any other authorized officer can fix the minimum customs value of goods specified in the First Schedule and Second Schedule only through a Notification.
4. In view of the above the impugned letter and any further proceedings or orders passed thereon are held to be without lawful authority and of' no legal effect."
(7) No distinguishing feature in this case has been shown by the respondents. The respondents have very candidly admitted that the valuation was not finalized through a notification as required by law. The principles and the conclusion recorded in the above referred cases directly applied to this case as well.
(8) This petition is thus accepted with cost. The impugned valuation advice, dated 12-5-2004 and the demand based thereupon is declared to be without lawful authority and of no legal effect."
In the case of Al-Mughni Trading Company (Supra) the question again before the Lahore High Court was about valuation advice, dated 31-7-2004 issued by the Controller of' Customs Valuation which was made the basis for rejecting the declared value of goods imported by the petitioner. The Hon'ble Judge dealing with the matter observed in his judgment:--
"Pursuant to law laid down by this Court in case of Messrs Sohrab Global Marketing (Pvt.) Ltd., v. Deputy Collector of Customs Lahore and others (2005 PTD 67). Reliance upon the valuation advice simpliciter is not a valid basis of assessment of the value of imported goods within the frame work of section 25 of the Customs Act, 1969."
On the basis of the above observation, the learned Judge found that the impugned assessment is based upon material that is not contemplated by law and declared it to be without lawful authority and directed the Customs Authorities to re-assess imported goods in accordance with law in particular the provisions of section 25 of the Customs Act.
As it appears from the above discussion that the Court at Karachi have taken the view that the valuation advice should not be considered the only basis for making of the assessment of the value of the imported goods but it may be considered as a piece of evidence along with other evidence for arriving at the valuation of the imported goods for the purpose of assessment of customs duty etc. On the other hand, the view expressed by the Lahore High Court is that the valuation advise has no sanctity in law and has been declared to be of no legal effect and Customs Authorities' have been directed to make assessment of the imported goods in accordance with the provision of section 25 of the Customs Act. It may also be of advantage to refer to the order, dated 6-5-2005 in C.P. D-394 of 2005 and 398 of 2005 and orders, dated 22-9-2005 and 11-11-2005 in C.P. D-659 of 2005 passed by three different Division Benches of this Court. The question in these three C.Ps also related to the valuation advice for determining value of imported dry battery cells. In the first mentioned order the ultimate determination of value has been left to the concerned authorities in accordance with law while in the latter two orders there is specific directions to the Collector of Customs Appraisement and Valuation Department to finalise the assessment/valuation. The only thing that was noted in these orders was that the determination of value be made subject to the outcome of the decision of this suit/injunction application.
Now, as noted above, there is a judicial consensus that it is the function of the Customs Authorities to determine value of the imported consignment in terms of section 25 of the Customs Act, 1969 and the rules made thereunder. There is no provision in the Customs Act or its rules where the Customs Authorities may make or have a fixed predetermined value of the imported consignment in the form of valuation advice issued by an officer of the Customs Department. It matters not whether the valuation advice is made with inquiry or with the A consent of the persons affected by the valuation. Apparently, the valuation advice goes contrary to the provision of' section 25(1) of' the Customs Act, 1969 which provides that the transaction value to be Customs value of imported goods subject to the provisions of this section and the rules. If the transaction value as declared by the importer cannot be determined, the provisions of' this section and rules provides an in-built mechanism for the Customs Authorities to determine the value of imported goods. Fixed valuation of' the imported goods by way of valuation advice obtained by any means, cannot be made the basis for determining the value of imported goods each of which has to be dealt with and processed in accordance with section 25 of' the Customs Act and the rules made thereunder.
I, therefore, cannot, but reach conclusion that the valuation advice, dated 19-3-2005 which is the bone of contention between the parties may not be taken as conclusive evidence of valuation and final assessment be made of' the imported dry battery cells by the Customs Authorities in accordance with the provision of section 25 of the Customs Act and rules after providing due opportunity to the importer to B place material .with regard to the value declared by it. There does not appear to be need for the Customs Authorities to review or revise valuation advice because it will be an exercise in futility as the reviewed or revised valuation advice again will not be the only basis for arriving at the valuation of the imported goods as its valuation still, will have to be made under section 25 of the Customs Act and the Rules. This is the mandate of' law which has to be fulfilled.
As regards the relief of mandatory injunction of directing the defendants 2 to 5 to clear the imported consignment to the plaintiff under section 25-A of the Customs Act as agreed on 12-4-2005, in this respect reference is made to annexure P-5 to the plaint on which the following writing appears:
"A meeting was convened before the Director-General Val and PCA on 12-4-2005. After discussion it was offered by importers to surrender their imported goods under section 25-A. This offer was accepted by the manufactures Rap. Accordingly the offer C and acceptance is acknowledged as below:-
1.Mr. Ahmed IsmailSd/-
(POMA)12-4-2005
2.Mr. Abdul SattarSd/
(Nasir Trading)12-4-2005
3.Mr. Faisal NashnSd/-
(Faisal Corp)12-4-2005
4.Mr. Ovais JangdaSd/-
(Ovais Trading)12-4-2005"
Subsection (1) of section 25A of the Customs Act provides that if any person makes an offer in writing to buy the imported goods sought to be cleared at value declared by an importer in the bill of entry or goods declaration, the Assistant Collector pr any other higher officer of Customs may order the following without prejudice to any other action against the importer or his authorized agent, namely (i) entertain offer by any other person to buy these goods at substantially higher value than the declared customs value in the bill of entry or goods declaration and payment of customs duties and other levialble taxes thereon, provided such offer is accompanied by a pay order equal to twenty five per cent of the amount of such value and duties and other taxes leviable on imported goods. Admittedly the above document annexure P-5 does not say in precise term that the offer of the plaintiff to buy these goods is substantially higher than the declared value and it is also not accompanied by a pay order equal to 25% of the amount of such value and dues and other taxes leviable on the imported goods. Even the D subsequent letters of the plaintiffs do not comply with the above mentioned conditions of section 25A(1)(i) of the Customs Act. In the face of the above provision of law, there is no offer so far from the plaintiff to the Customs Authorities in terms of section 25A (1)(i) of the Customs Act and therefore, no question arises for the granting of mandatory injunction as is prayed for by the plaintiff.
Keeping in view all the above facts and circumstances and the law applicable to the matter, there is no escape, but to find that the plaintiff suit fails. Consequently, the suit is dismissed. The listed applications at serials Nos. 1, 2, 3, 5 and 6 are also disposed of in the above terms. The interim order, dated 25-4-2005 is hereby recalled.
S.A.K./P-6/KSuit dismissed.