COLLECTOR OF CUSTOMS, KARACHI VS Messrs ALI ENTERPRISES, KARACHI, 2006 PTD-KARACHI-HIGH-COURT-SINDH 651 (2005)

Customs Act (IV of 1969)---

----Ss. 16, 32(1)(2)(14), 156(1) & 196---Import Policy Order, 2005, para. 16 read with Appendix G---S.R.O. 2(13)/71/GATT dated 27-2-1973---Commercial Documents Evidence Act (XXX of 1939), S.3---Reference to High Court---"Certificate of origin"---Presumption attached to such certificate, when rebutable---Principles---Reference to High Court is confined to the question of law arising out of Tribunal's order---No provision of law exists under which any evidence collected after the decision of the Tribunal can be brought on the record of the High Court---Jurisdiction of High Court under S.196, Customs Act, 1969 is advisory in nature and the opinion by High Court is to be given on the point of Law only arising out of an order by the Tribunal---Tribunal considers the issues raised before it, and gives finding on the points of fact and law on the basis of material produced before it and points canvassed by the parties---Customs Officers, in the present case, became aware of the provisions of Commercial Documents Act, 1939 after the order of the Tribunal, and they tried to wriggle out of the situation which was not possible, for the reason that after decision of the Tribunal no new evidence could be allowed to be collected---High Court, while dismissing the reference application by the department, on account of the fact that no question of law was involved in the case, observed that in spite of the several directions by the High Court, Central Board of Revenue had not taken any meaningful steps for imparting necessary training in the relevant laws pertaining to the customs duty to the Customs officials.

Haider Iqbal Wahniwal along with Ilyas Ahsan Khan, Appraising Officer for Appellant.

Date of hearing: 19th December, 2005.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The Collector of Customs, Model Customs Collectorate, Custom House, Karachi, has filed this reference application under section 196 of the Customs Act, 1969, proposing the following questions of law arising out of order dated 14-11-2005, passed by the learned Single Member of the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench-I.

1. Whether the learned Member (Technical) was justified to allow release of goods of Indian origin which contravene the provisions of clause (viii) of sub-para. (B) of para. 16 read with Appendix-G of the Import Policy Order, 2005, read with section 16 of the Customs Act, 1969?

2. Whether the Member (Technical) has not erred by giving benefit of doubt to the respondents whereas in the presence of clear physical examination report no iota of doubt exists?

3. Whether the learned Member (Technical) has erred by applying the provisions of (S.R.O. 2(13)/71 GATT; dated 27-2-1973 Exhibit-B), which are for the specific preferential treatment for the specific area/countries and the said S.R.O. is not at all applicable on the respondent's case?

4. Whether the learned Member (Technical) has any justification to accept a "Certificate of Origin" (Exhibit-C) in terms of section 3 of the Commercial Document's Evidence Act, 1969, which has been proved patently false/wrong in the presence of physical examination report, confirming Indian origin of the goods as against what is mentioned in the aforesaid certificate of origin?

5. Whether the learned Member (Technical) was justified to pass orders without taking into consideration that according to Rule 109 of the Customs Rules, 2001, the onus to substantiate the correctness of the declarations, including the origin of the goods, lies with the respondents?

6. Whether the learned Member (Technical) was justified to pass orders for release of the consignment in the presence of admitted fact that on no less than 24 cartons, out of 209 cartons, the inscription about the Indian origin is clearly visible?

7. Whether the impugned order can be termed as discriminative order because consignments of identical facts having similar examination reports of other importers have not been allowed in view of violation of Import Policy Order?

8. Whether owing to mis-declaration of origin and quantity the learned Member (Technical) was justified to allow release of the goods without considering the penal action as warranted by law in terms of sections 16, 32(1), 32(2) and clause (14) of section 156(1) of the Customs Act, 1969?

Heard Mr. Haider Iqbal Wahniwal, learned counsel for the appellant and perused the order of Tribunal. In fact the question for consideration is whether the Tribunal was justified in placing reliance on the certificate of origin issued by the Dubai Chamber of Commerce & Industry, with reference to the provisions contained in section 3 of the Commercial Documents Evidence Act, 1939, read with Item No.18 of Part-I of the Schedule to the said Act.

The relevant facts are that the date of invoice in this case is 10-8-2005. According to show-cause notice, a declaration showing import of imitation jewellery of China origin was filed vide C.R. No.I-HC-11437 dated 16-8-2005. Mr. Haider Iqbal Wahniwal has stated that the consignment arrived at Karachi Port on 23-8-2005. It was examined on 26-8-2005 and it was found that out of 209 packets, 24 were of Indian origin. Certificate of origin was produced by the respondent issued by the Chamber of Commerce & Industry Dubai on 29-8-2005, certifying that the entire goods were of China origin. According to the order of Tribunal it was stated by the departmental representative that the disputed marks showing Indian origin, were less than 5% of the consignment. It is pertinent to note that for the purpose of reference the facts determined by the Tribunal are to be taken as correct and on the basis thereof, the reference is to be considered. No probe is to be made into the facts for the purpose of reference application. Thus, the finding of Tribunal to the effect that the departmental representative conceded before the Tribunal that disputed marks of Indian origin were less than 5% of the consignment and that there was a presumption in respect of remaining goods that country of origin was India, from where the import is banned, is to be accepted, for the reason that finding of fact given by the Tribunal is final:

The Departmental Officer by presuming that entire consignment was banded being of Indian origin prepared contravention report and show-cause notice was issued on 31-8-2005. Order-in-original was passed on 17-9-2005 and the entire consignment was directed to be confiscated outrightly. The appeal preferred before the Collector of Customs was dismissed on 1-10-2005 and the respondent/importer filed appeal before the Tribunal, which was decided on 14-11-2005. the learned Single Member of the Tribunal held that by virtue of the provisions contained in section 3 of the Commercial Documents Evidence Act, 1939, which provides that, "for the purposes of Evidence Act, 1872, and notwithstanding anything contained therein, a Court shall presume within the meaning of that Act that a document specified in Part-I of the Schedule to the Act has been duly made by or under the appropriate authority, was so made and that the statements contained therein are accurate, the presumption of correctness is attached to the Certificate of Origin issued by the Chamber of Commerce and Industry Dubai". In Part-I of the Schedule, Entry No. 18 reads as follows:---

"Certificate of Origin of goods issued (but not merely attested) by recognized Chamber of Commerce or by Pakistan or British Consular Office or Pakistan or British Commissioner or Agent."

The learned Single Member held that no verification was made from Dubai Chamber of Commerce on the point of country of origin whether it was China or India and, therefore, the presumption to the contrary on the part of Departmental Officer was not warranted in law. The orders of the two officers below were set aside and it was held that the respondent/ importer was entitled for Delay and Detention Certificate also.

The appeal against the said order has been filed in this Court on 3-12-2005 and Mr. Haider Iqbal Wahniwal, has informed that a letter has been written by the Collector to the Commercial Consullar, Commercial Section, Consulate General of Pakistan, UAE, on .8th December, 2005 requesting him to get confirmation from the Dubai Chamber of Commerce and Industry, as to how this certificate was issued and whether any declaration was filed by the exporter/shippers at the time of shipment of the goods to Pakistan particularly with reference to origin. It is further stated in the letter that the report is required to defend the case before High Court.

After hearing Mr. Haider Iqbal, and perusal of entire material available on the record, I find that the sole point of contention between the parties is whether the country of origin is China or India. A Certificate of Origin has been issued by the Chamber of Commerce and industry Dubai, to which the presumption of correctness is attached in terms of section 3 of the Commercial Documents Evidence Act, 1939. Of course, the presumption is rebutable but for that purpose the exercise which has been initiated on 8th December, 2005 was required to be initiated when the Certificate of Origin was produced before the Customs Officials or in any case, before the preparation of the contravention report or at least during the pendency of proceedings-in-original before Deputy Collector, because at that time the evidence collected could be produced. The exercise which has been initiated on 8th December, 2005 is of no help to the Customs Department for the simple reason that at present the proceedings are pending in reference before this Court. The reference to this Court is confined to the question of law arising out of the order of Tribunal. There is no provision under which any evidence collected after the decision of the Tribunal can be brought on the record of this Court. The jurisdiction under section 196 of the Customs Act, 1969, is advisory in nature and the opinion by this Court is to be given on the point of law only arising out of an order by the Tribunal. The Tribunal considers the issues raised before it, and gives finding on the points of fact and law .on the basis of material produced before it and points canvassed by the parties.

For the time being, the only point of law which the Tribunal has decided is the scope and connotation of the provisions contained in section 3 of the Commercial Documents Evidence Act, 1939. Mr. Haider Iqbal, is not able to point out any infirmity in the interpretation of the Tribunal in respect of this provision of law. The sole contention is that the presumption under this provision is rebutable. There can be no cavil to the proposition but the question arises whether in this case the Customs officials have taken necessary steps to rebut the presumption provided in law. I find that the Departmental Officers most probably on account of the ignorance of law contained in section 3 of the Commercial Documents Evidence Act, 1939, could not take appropriate steps, for which they' cannot be held responsible, because, in spite of the several directions by this Court, the C.B.R. has not taken any meaningful steps for imparting necessary training in the relevant laws pertaining to the customs duty to the Customs officials. After the order of Tribunal, the Customs officials became aware of the provisions contained in section 3 of the Commercial Documents Evidence Act, 1939, and now they are trying to wriggle out of the situation which is not possible, for the reason that after decision of Tribunal no new evidence can be allowed to be collected. The reason being that the finding of fact given by the Tribunal is final, and if such practice is allowed then there would be no finality to any matter which is more harmful to the tax administration than loss of revenue to the State in a particular case. In the realm of tax administration the certainty is hallmark and if it is distorted the entire environment of investment and commercial and business activity shall be destroyed, seriously affecting the fiscal health of the country.

I have found that no question of law requiring interpretation arises out of the order of Tribunal and consequently, the reference application stands dismissed in limine. I would like to clarify that normally such detailed order is not required to be passed at Katcha Peshi stage, but looking to the lack of knowledge on the part of Customs officials, I have passed such detailed order with the purpose that it may provide guideline to them enabling for better performance in future.

M.B.A./C-2/K???????????????????????????????????????????????????????????????????????? Application dismissed.