COLLECTOR OF CUSTOMS (APPRAISEMENT) VS Messrs SHABAZ INTERNATIONAL
2007 P T D 202
[Karachi High Court]
Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ
COLLECTOR OF CUSTOMS (APPRAISEMENT)
Versus
Messrs SHABAZ INTERNATIONAL
Special Customs Reference Applications Nos.85 and 88 of 2006, decided on 3rd October, 2006.
(a) Customs Act (IV of 1969)---
----S. 196---Constitution of Pakistan (1973), Art. 189---Reference to High Court---Order of Tribunal being based on appreciation of facts, admissions/concessions of Revenue and earlier judgments of High Court and Supreme Court---Validity---Such controversy having been settled by Supreme Court must be laid to rest---Judgment of Supreme Court was binding on all judicial and administrative forums---No question of law requiring interpretation would arise from impugned order---High Court dismissed reference in limine.
(b) Practice and procedure---
----Issue taken to Supreme Court had decided at that level---Effect---Such controversy must be laid to rest.
Raja M. Iqbal for Applicant.
ORDER
The Collector of Customs (Appraisement) Karachi, has proposed the following common questions for our consideration, allegedly arising out of the order of Tribunal:
"(i) Whether on the facts and circumstances of the case, the learned Tribunal erred to hold that determination of classification by the appellant of the impugned vehicle is contrary to the criteria laid down in the explanatory notes of harmonized system?
(ii) 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 at page 553?
(iii) 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 sections 32(1), 32-A, 16 are punishable under clauses (9) and (14) of section 156(1) of the Customs Act, 1969?
(iv) Whether on the facts and circumstances of the case, the learned Tribunal erred in holding that old and used SKD condition dump trucks were freely importable after the S.R.O. 818(I)/2002, dated 20-11-2002?
(v) Whether on the facts and circumstances of the case that the impugned order of the learned Tribunal is in accordance with section 24A of the General Clauses Act?"
Heard Mr. Raja M. Iqbal, learned counsel for the applicant, who has taken us through the impugned order of the learned Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-I.
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 Hon'ble Supreme Court the correct classification of the tariff heading was 8704.1000.
The learned Tribunal considered all the aspects and 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 reproduced below for the sake of convenience:-
"(18). It is evident from the record that:--
(a) similar goods has been released by the respondent had released similar goods 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 indicate that at least there was no 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 appellant's 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 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 summarised 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 judgments of this Court and the Hon'ble 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 Hon'ble 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.
For the foregoing reasons, both the Reference Applications stand dismissed in limine.
S.A.K./26/KReference dismissed.