COLLECTOR OF CUSTOMS, KARACHI VS Messrs ACHAK ENTERPRISES, KARACHI, 2007 PTD-KARACHI-HIGH-COURT-SINDH 1458 (2007)

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

----S. 25---Import of used dump truck in SKD condition for off-highway use----Classification of such truck under PCT Heading---Such truck would be assessed under PCT Heading 8704.1000, but not under PCT Heading 8704.2100---Principles.

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

----Art. 189---Issue taken to Supreme Court and decided at such level---Such controversy deemed to have been laid to rest---Principles.

Once the issues are taken to the Apex Court and decided at that level, then the controversy must be deemed to have been laid to rest. Judgments of Supreme Court are binding on all the judicial and administrative forums in the country.

Raja Muhammad Iqbal for the Applicant along with Zulfiqar Sarwar Khara, Appraisement Officer Customs..

Shah Muhammad, proprietor of Respondent.

ORDER

In these Reference Applications under section 196 of the Customs Act, 1969 following identical questions have been proposed by the Collector of Customs Appraisement Karachi for the opinion of this Court:-

(i)Whether the learned Tribunal was justified to not consider that case was not decided under section 193 of the Customs Act 1969 by the Collector appeals?

(ii)Whether on the facts and circumstances of the case, the learned Tribunal erred to hold that determination of classification of the impugned vehicle of the respondent, which is quite contrary to the criteria laid down in the explanatory notes of Harmonized Coding System?

(iii)Whether on the facts and circumstances of the case the learned Tribunal erred in law to change the classification fixed by the customs officer in accordance with the pronouncement of apex Court reported in 1994 PTCL case-law at page 553?

(iv)Whether on the facts and circumstances of the case, the learned Tribunal not appreciated that wrong application of classification for the purpose to evade the revenue is an offence under section 32(1), 16 punishable under clause 9, 14 section 156(1) of the Customs Act, 1969?

(v)Whether on facts and circumstances of the case, the learned tribunal erred in holding that old and used SKD condition dump trucks were importable after the S.R.O. 818(I) of 2002 dated 20-11-2002?

(iv)Whether on the facts and circumstances of the case that the impugned order of the learned Tribunal is in accordance with the section 24-A of the General Clauses Act?

At the outset it has been brought to our notice by the respondent that several other Customs Reference Applications, wherein identical questions earlier proposed by the Collector of Customs Appraisement, were dismissed in limine by a Division Bench of this Court by its common order dated 19-9-2006. He has also pointed out that leave to appeal petitions preferred by the appellant before the Honourable Supreme Court of Pakistan against the judgment of this Court were fixed for hearing yesterday and the same have been dismissed by the Honourable apex Court. This position is candidly conceded by the learned counsel for the applicant as well as the officer of the applicant present in Court.

In the light of above noted facts, we have gone through the order dated 19-9-2006 passed by the Division Bench of this Court, whereby earlier Reference Applications of the applicant containing similar questions were dismissed for the following reasons:-

"After perusal of the impugned order, we find that the sole question for consideration before the Tribunal was, the classification of PCT Heading. According to importers the dump trucks for off-highway use in SKD condition were classifiable under PCT Heading 8704.1000 which plea was initially accepted by the Examination Committee of the Customs officials but subsequently, the view was changed by another committee, which came to the conclusion that the off-highway used dump trucks/dumpers in SKD condition were to be assessed under tariff heading 8704.2100. The learned Tribunal examined the issue and after consideration of the points raised before it, came to the conclusion that on the basis of admitted/conceded facts, the past practice and the judgments of Sindh High Court as well as Honourable Supreme Court the correct classification of the tariff heading was 8704.1000."

The learned Tribunal considered all the aspects, their pros and cons and after appreciation of the facts decided the issue. The learned Tribunal has summarized its finding in paras. 18 and 19 of its order, which is reproduced below for the sake of convenience:-

"18. It is evident from the record that:

(a)similar goods had been released by the respondent by assessing them under tariff heading 8704.1000. This fact has all along been admitted by the revenue;

(b)the goods were examined by a committee constituted by the revenue for this purpose and its findings accepted the claim of the appellant that imported vehicles are to be assessed under tariff heading 8704.1000;

(c)the findings of the second examination only differ in respect of speed whereas all other characteristics of the imported vehicle have been found to be corresponding to the characteristics of the vehicles already released;

(d)the factors treated crucial for determination of dumpers as of off-highway dumpers by the Tribunal's earlier decision and upheld by the Supreme Court are the same and correspond to those dumpers which have been released under tariff heading 8704.1000;

(e)another crucial point for consideration is that show-cause notice had been issued after one year of the filing of the bill of entry and this inordinate delay is unexplained;

(f)these factors indicates that at least there was an element of doubt in the mind of assessing officer regarding classification of goods and its benefit should have been given to the appellant particularly in view of the fact that past practice to release the goods was in favour of the appellant;'

(g)the respondent has failed to establish that the imported goods are other than off-highway dumpers. There is no evidence to contradict the appellants declaration and the respondent has tried to stretch the law to deprive the appellant from its rightful claim. It is well settled principle of law that law can neither be stretched nor distorted to give or deny a right to the citizen."

19. This Tribunal vide its order dated 8-2-2005, had already ruled the same.

That order was challenged before the Honourable High Court of Sindh in Special Customs Appeal No.53 of 2005; Collector v. Achack Enterprises, Karachi. Their lordships while upholding the order of the Tribunal observed as under:-

"We have asked Mr. Haider Iqbal Wahniwal the reason for discriminatory treatment in view of the finding of the Tribunal that in 51 cases similar goods were released under PCT Heading 8704.1000. Mr. Haider Iqbal Wahniwal stated that he is not in a position to say whether in 51 cases the goods released were similar, but he can give statement to the extent that goods in 51 other cases were released. Be that as it may, the Tribunal has given a finding of fact that in other 51 cases the goods were similar as in the case of respondents in these appeals and no question has been proposed in these appeals to the effect that this finding of fact is contrary to the evidence on record."

In the above circumstances we are of the opinion that the impugned finding of the Tribunal is not open to any exception and consequently the question of law for consideration in this case is answered in the terms that in the facts and circumstances of these cases the Tribunal was justified in holding that the PCT Heading applicable to the import of dump trucks (consignment imported by the respondents) is 8704.1000..."

A careful consideration of the impugned order and the reasons assigned therein summarized in two paras reproduced above, leads to the conclusion that the learned Tribunal has decided the issue on simple appreciation of facts, admissions/concessions and in the light of earlier judgment of this Court and the Honourable Supreme Court.

We are of the considered opinion that no substantial question of law requiring interpretation arises out of the order of tribunal. It is settled law that once the issues are taken to the apex Court and the issues are decided at that level then the controversy must be laid to rest. The judgments of Honourable Supreme Court are binding on all the judicial and administrative forums in the country. All the points sought to be raised already stand settled and no further opinion is required by this Court.

Following the same view, these Reference Applications are also dismissed in limine for the same reasons.

S.A.K./C-8/KReference dismissed in limine.