COLLECTOR OF CUSTOMS, KARACHI VS Messrs ORIENTAL EXPORT INTERNATIONAL, KARACHI
2007 P T D 45
[Karachi High Court]
Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ
COLLECTOR OF CUSTOMS, KARACHI
Versus
Messrs ORIENTAL EXPORT INTERNATIONAL, KARACHI
Special Customs Reference Application No. 82 and C.M.A. No.1175 of 2006, decided on 25/08/2006.
Customs Act (IV of 1969)---
----Ss.32(1) & 196---Allegation of misdeclaration in Bill of Export regarding weight of consignment---Tribunal finding such charge not based on 100% weightage of consignment---Reference to High Court---Question in reference to High Court was whether whole consignment was weighed or its 25% was weighed---Validity---Tribunal having not decided any question of law, High Court dismissed reference in limine.
Raja M. Iqbal for Applicant.
ORDER
Granted with all just exceptions.
2. The Collector of Customs, Export, has proposed the following questions alleging that they are the questions of law arising out of the order of Tribunal:---
"(1) Whether on the facts and circumstances of the case, the learned Tribunal erred to hold that 25% consignment was weighed
(2) Whether on the facts and circumstances of the case, the learned Tribunal erred in law that mis-declaration of weight and quality is falling under section 32(1) clause 14 of section 156(1) of the Customs Act?"
The relevant portion from the order of Tribunal is reproduced for the sake of convenience:---
"2. Briefly the facts of the case are that the appellant filed a bill of Export No.03530 dated 12-4-2001 for export of 289 packages, containing 42308 meters of 65% polyester, 35% cotton printed fabric to UAE. During the course of physical examination of the consignment the net weight was found to be 9198.75/Kg. instead of 14385.70 Kgs. as declared. The discrepancy was explained by the appellant that they had purchased the impugned fabric on meterage basis and not on weight basis yet a case of misdeclaration against the appellant such that the impugned goods were confiscated and penalty was imposed. The appellant under the threat of revocation of contract with the foreign buyer redeemed the goods on payment of penalty and redemption fine and being unsuccessful at lower fora filed this appeal inter alia, on the following grounds:---
(a) that the consignment was procured from the local supplier on meterge basis;
(b) that discrepancy in weight was an omission inadvertent, unwilful and bona fide in nature;
(c) that as per agreement with trade on detection of discrepancy in the weight necessary amendment in the bill of export should have been allowed instead of making a case of misdeclaration. The burden of proving the same lies with the customs administration on the basis of various case laws on the subject;
(d) that it is mandatory that the show-cause notice must be based on sufficient material to support prima facie case of collusion or wilful misstatement etc., whereas no such grounds were mentioned in the impugned show-cause notice;
(e) that whereas the total export value of the consignment was Rs.43,66,972.70 the total pecuniary advantage to the appellant in the alleged misdeclaration would have been Rs.1,05,591 only which was not so attractive to jeopardize the whole consignment of such higher value;
3. During the course of hearing the appellant has pleaded that their declaration as to the construction of cloth as 65/35, meterage was 42308 meters and number of packages as 289 all were found to be correct. As far the discrepancy in weight, if any, was not ascertained, in correct terms, by weighment of the entire consignment. According to the appellant only a portion to the extent of 25% of the consignment was weighed and the weight of the whole consignment was determined only by extrapolation of the weight of 25% portion. The D.R. present at the time of hearing, after checking his record, could not deny this contention of the appellant. It was therefore, concluded that the charge of misdeclaration of weight was not based on 100% of weighment of the impugned consignment and thus cannot be held to be legally well founded. Accordingly, the impugned order is set aside and the appeal is allowed."
A perusal of the impugned order shows that main contention was whether the whole consignment was weighed or 25% was weighed only. The learned Tribunal has observed that the D.R. present at the time of hearing, after the checking of his record, could not deny this contention of the appellant that the consignment was weighed to the extent of 25% only.
No question of law has been decided by the Tribunal. It is a simple question of fact which has been decided on the basis of concession made by the D.R. before the Tribunal. So far the question No.2 is concerned, it does not arise at all out of the order of Tribunal. The reference application is totally misconceived, which stands dismissed in limine.
S.A.K./C-25/KReference dismissed.