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

----Ss.32 & 209(3)---Income Tax Ordinance (XXXI of 1979), S.50(5)---Custom Agents Licensing Rules, 1971---S.R.O. 13(1)/1971, dated 8-1-1971---Import of vehicle---Failure of Clearing Agent to mention correct rate of withholding tax in Bill of Entry---Demand of deficient tax from Agent---Plea of Agent was that he was not liable to pay such tax, but its liability was that of importer that neither he nor importer had knowledge of levy of such tax; and that impugned demand was time barred---Validity---Agent would be deemed to be importer---Agent was under an. obligation to know about tax chargeable and leviable on imports---Primary responsibility of Agent was to fill various columns of Bills of Entry in a proper manner and in accordance with prevalent law---Agent's neglect to do so would amount to wilful neglect on his part---Ignorance of law would be no excuse and Agent could not be paid dividend for his ignorance---Such omission on the part of Agent was wilful omission to defraud State Exchequer, thus, period of limitation would be three years under S.32 of Customs Act, 1969-_.--Impugned demand was legal.

(b) Administration of justice---

----Ignorance of law is no excuse, thus, defaulting party cannot be paid dividend for his ignorance.

(c) Natural justice, principles of---

----Party absenting himself to appear before am authority could not claim that he was not provided opportunity of hearing.

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

----Ss.32 & 196---Appeal before High Court---Question of fact---Non payment of withholding tax---Question, whether importer deliberately avoided such payment or same was on account of bona fide mistake, would be a question of fact---Such question could not be entertained in appeal before High Court.

Khawaja Adnan Ahmed for Appellant.

Date of hearing: 8th March, 2005.

ORDER

By this single order we propose to decide Customs Appeal No.174 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc." Customs Appeal No.175 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise & Sales Tax Appellate Tribunal etc." Customs Appeal No.176 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.177 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.178 of 1999 titled "Messrs. Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc." Customs Appeal No.179 of 1999 titled ^"Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.180 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.181 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.182 of 1999 titled ^"Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.183 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.184 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.^", Customs Appeal No.185 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.186 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.187 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", Customs Appeal No.188 of 1999 titled "Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal etc.", as common question of law is involved in all these appeals.

2. Brief facts giving rise to this appeal are that Mushtaq Ahmad imported Toyota Hiace van (used) valuing Rs.1,03,636 and filed bill of entry on 12-10-1995 bearing No.1857, through the appellant. It was revealed in the `post clearance audit' that an amount of Rs.10,060 on account of 4% withholding tax was short paid. The withholding tax was leviable under section 50(5) clauses (a) and (b) of the repealed Income Tax Ordinance, 1979. Show-cause notice issued to the importer was not responded and Order-in-Original No.35 of 1997 dated 1-9-1997 was passed. The appeal against the said order was accepted and the case was remanded back to the original authority for re-examination of the case as the appellant being clearing agent was not specified in the impugned order. The Deputy Collector (Customs) after remand issued notices to the appellant on various dates and finally decided the matter ex parte, as neither the importer nor the appellant appeared before him despite notices.

3. The Deputy Collector passed Order-in-Original No.10 of 1997 on 16-1-1999, holding the appellant liable for payment of 4% withholding tax in the light of Custom Agents Licensing Rules, 1971 clause 18(iv), (vii) and clause (19)(ii), (iii) and (ix), contained in S.R.O. 13(I)1971, dated 8-1-1971. The Order-in-Original was assailed before the Collector of Customs Central Excise and Sales Tax (Appeals), Lahore, in Appeal No.76 of 1999, who rejected/dismissed the appeal, by Order No.V(15)/8499, dated 7-10-1997. Appellant then challenged the order of Collector (Appeals), before the Customs; Excise and Sales Tax Appellate Tribunal. The learned Tribunal by order, dated 21-9-1999 upheld the decision of the Collector (Appeals) and dismissed the appeal. The appellant has now assailed in the instant appeal, under section 196 of the Customs Act, 1969, the order passed by Customs, Central Excise and Sales Tax Appellate Tribunal.

4. Learned counsel for the appellant submits that the question of levy of 4% withholding tax was not in the notice of even the Customs Authorities, at the time, when the bills of entry were filed. The chargeability of 4% withholding tax was clarified and circulated by C.B.R. on 22-11-1995 and that too on the query of Collector of Customs, Karachi. The levy of withholding tax was never in the knowledge of the importer, as well as the appellant and the Customs Department. The appellant, therefore, cannot be held responsible in this respect, as there was no wilful omission on the part of the appellant. He has stated further that the Deputy Collector has proceeded, in the post-remand proceedings, in-gross neglect of the remand order. The case was remanded to pass order, by specifying the contravention, if any, committed by the appellant. No such contravention was specified in the impugned order. It was next contended by the learned counsel that the appellant is not liable to pay the impugned amount of withholding tax on the ground that the show-cause notice was issued under section 50(5) of the Income Tax Ordinance, 1979 and section 32 of the Customs Act, 1969, and the provisions, referred relate to the importer or exporters and the appellant being the agent cannot be taxed. It was lastly contended that the order of Deputy Collector was ex parte and the appellant was condemned unheard.

5. Heard learned counsel for the appellant and perused the record.

6. We do not agree with the justification of the learned counsel of the appellant that the withholding tax was not paid due to the lack of knowledge. The appellant being the clearing agent is under an obligation to know about the tax chargeable and leviable on imports. It is one of his primary responsibilities to fill various columns of bills of entry in a proper manner and in accordance with the law prevalent at the time of filing of the bills of entry. The ignorance of law is no excuse and the appellant cannot be paid dividend for his ignorance.

7. The appellant was issued notices on 9-2-1998, 11-2-1998, 2-5-1998 and 12-8-1998 but the appellant failed to appear despite notices. The remand order was passed in appeal filed by the appellant, in the presence of the appellant. It was the duty of the appellant to approach respondent No.3 and inquired about the post-remand proceedings. The appellant who has absented himself to appear cannot claim that he was not provided 'opportunity of hearing.

8. The clearing agent is deemed to be as importer under the provisions of section 209(3) of the Customs Act, 1969. The relevant part of this subsection is reproduced as under:---

^"209 Liability of principal and agent.

(1) ------------------

(2)------------------

(3) When any person is expressly or impliedly authorized by the owner, importers or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purpose:

Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than wilful act, negligence or default of the agent, such duty shall not be recovered from the agent".

Section 209 ibid explains the liability of the appellant. He, in the capacity of the agent of the importer, is deemed to be the importer, on bare reading of the above provision of law. The provisions of section 32 of the Customs Act, 1969 and section 50(5) of the Income Tax Ordinance, 1979 are fully attracted in the case.

9. The Appellate Tribunal has rightly drawn its conclusion that it was the responsibility of the appellant to fill various columns of bill of entry in a proper manner and neglect to do so, amounts to a wilful neglect on the part of the appellant. Respondent No.2 has dealt with the objection of limitation fairly by holding that the impugned act of omission, failing to mention 4% withholding tax, was wilful omission to defraud the State Exchequer and the period to take action, in this respect, is three years under section 32(2) of the Customs Act, 1969.

10. The question whether the appellant has deliberately avoided the payment of the withholding tax or it was bona fide mistake, is a question of fact and such question cannot be `gone into or entertained in the present appeal.

For the foregoing reasons the appeals being devoid of any merit, are dismissed.

S.A.K./E-18/LAppeals dismissed.