Messrs MIA CORPORATION (PVT.) LTD.through Director, Islamabad VS COLLECTOR OF CUSTOMS (APPRAISEMENT), KARACHI, 2006 PTD-KARACHI-HIGH-COURT-SINDH 1624 (2006)

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

----S.32---Final assessment order made in first instance---Final assessment order on account of non-passing of final order after provisional assessment---No distinction existed in S.32. of Customs Act, 1969 between both such orders.

(b) Constitution of Pakistan (1973)---

----Art. 1'99---Matter of evidence---Not be adverted to in Constitutional petition.

Ziaul Hassan of Petitioner

Raja Muhammad Iqbal for Respondents Nos.l to 4 along with Tariq Aziz, Appraising Officer.

Date of hearing: 21st April, 2006.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---In all these petitions it is alleged that the petitioner imported goods which were released in pursuance of provisional assessment order and thereafter no final assessment order was made within time limit specified under section 81 of the Customs Act with the result that provisional assessment attained finality. Their grievance is that the Department now intends to make assessment on basis of valuation ruling under subsection (7) of section 25 of the Customs Act.

2. Declaration is sought to the effect that the intended assessment in terms of the valuation ruling under subsections (7) of section 25 of the Customs Act, is illegal.

3. Mr. Tariq Aziz Appraising Officer has stated that in all these cases the department is not contemplating to make any assessment order under subsection (7) of section 25 of the Customs Act, as the assessments have already attained finality. He has stated that department received information that petitioner at the time of filing Bill of Entry/Goods Declaration made misstatement and misdeclaration and produced fake and forged invoices thereby causing loss to the Revenue and the department has issued notice under section 32 of the Customs Act for retrieving losses which were caused on account of misdeclaration and production of false and fake documents.

4. Initially, Mr. Ziaul Hassan learned counsel for petitioner contended that since the assessments in these cases were made on provisional basis and all such provisional assessments attained finality on account of absence of assessment order within stipulated period, therefore, section 32 of the Customs Act is not attracted. However, after arguing the matter at length with reference to contents of section 32 of the Customs Act, he conceded that section 32 of the Customs Act has not made any distinction in the final assessment order made in the first? instance or final assessment order on account of non-passing of final order after provisional assessment. Mr. Ziaul Hassan learned counsel for petitioner has contended that there is no evidence in possession of the department to show that invoices produced by the petitioner were forged B and fake. He was however, pointed out that this cannot be adverted to in these constitutional petitions, as it is a matter of evidence.

5. Mr. Ziaul Hassan learned counsel finally stated that he is satisfied with the statement made that no fresh assessment order on basis ' of valuation ruling under subsection (7) of section 25 of the Customs Act is intended to be made. He submitted that the petitioner may be provided sufficient opportunity to place its case, before the Adjudicating Officers.

6. Mr. Raja Muhammad Iqbal learned counsel for the respondents Nos.I to 4 has stated that in terms of subsection (4) of section 32 of the Customs Act the representation/explanation submitted by the petitioner in reply to the show-cause notice shall be considered and full opportunity shall be provided to the petitioner of being heard and defending the case.

7. Since sole relief sought in all the petitions is that the declaration be made that value fixed by the respondent No.4 in terms of valuation ruling is illegal and the department representative has stated that no fresh assessment/valuation is contemplated on the basis of Valuation Ruling but the only proceedings initiated by the department is under section 32 of the Customs Act, the petitions are without substance and stand dismissed in limine along with listed applications.

S.A.K./M-57/K?????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.