WESTERN COMPUTERS (PVT.) LTD. VS DEPUTY COLLECTOR CUSTOMS (GROUP-IV), LAHORE, 2007 PTD-LAHORE-HIGH-COURT-LAHORE 2453 (2007)

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

----Ss. 81 & 193 [as amended by Finance Act (III of 2003)]---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Order of final assessment---Filial assessment was made before 1-7-2006, when remedy of appeal before Appellate Authority was not available to the petitioner---Constitutional petition was competent.

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

----S. 84(4)---Provisional assessment would attain finality, if final assessment was not made within period of limitation.

Mian Abdul Ghaffar for Petitioner.

Sh. Izhar ul Haq for Respondents.

ORDER

SYED HAMID ALI SHAH, J.---The facts giving rise to the present constitutional petition are that the petitioner imported U.P.S. and other computer parts through bill of entry, dated. 29-9-2004. The petitioner on arrival of the consignment tiled Goods Declaration bearing H.C. 4829, dated 29-9-2004 and in response to the declaration the goods were examined and found in accordance with the declaration. The respondent declined to accept the transactional value of the goods in terms of section 25(1) of the Customs. Act, 1969 (hereinafter to be referred as "Act, 1969") and enhanced the same to US $43040.00. The petitioner disputed the enhancement, which resulted into provisional assessment of the consigmnent under section 81 of the Act, 1969. The respondent directed the petitioner to pay dues and taxes against the declared value-while for the differential value indemnity bond and post, dated cheques were directed to be delivered. The petitioner paid the dues and taxes on the basis of provisional assessment, dated 12-1-2005. The provisional assessment was not finalized within the period of one year and time in this respect was extended for another period of 90 days but the assessment was not finalized even during the extended period i.e. till 12-4-2006. The provisional assessment thus according to the provisions of section 81(4) of the Act, 1969 attained finality on 12-4-2006. The petitioner approached the respondents for discharge of the security and return of the documents submitted as security but surprisingly instead of release of the security the respondent passed the impugned order, dated 19-5-2006 regarding final assessment.

2. Learned counsel for the petitioner contended that legally no order for final assessment could be passed after the expiry of the period of limitation. Learned counsel further contended that the order impugned is ante-dated, which fact is evident from its perusal that the order, dated 19-5-2006 was announced on 6-4-2006 whereas the case was never fixed for 6-4-2006 nor any pronouncement was made on that day. The date of announcement as incorporated in the impugned order is 6-4-2006, which had been written illegally to cross the bar of limitation. Learned counsel has submitted that the impugned order, as per stance of the respondent, is dated 6-4-2006 while in para. 7 of the said order there is a reference to letter, dated 8-4-2006, which was supplied by the Valuation Department of the respondent. If the order was passed on 6-4-2006 then a letter of subsequent date cannot be referred. The Deputy Collector (GR-IV) has signed the order on 7-4-2006 but the other date mentioned is 19-5-2006. Bare perusal of the order shows that the dates have been changed to bring the case into the limitation.

3. Learned counsel for the respondents, on the other hand, has submitted that the petitioner himself admitted in para. 7 of the petition that period for final assessment was enhanced for another 180 days i.e. upto 11-4-2006. He has then submitted that the final assessment order is appealable under section 193 of the Act, 1969, thus the instant petition is not maintainable. Learned counsel further submitted that whether the final assessment was made within the prescribed period or it was ante-dated is the question of fact, which cannot be gone into in the exercise of constitutional jurisdiction.

4. Heard learned counsel for the parties and record perused.

5. The appeal against final assessment was provided through Finance Act (Act III of 2003) on 1-7-2006 wherein section 193 was amended. The final assessment in the instant case was made before 1st July, 2006 and at the relevant time the remedy of appeal was not available to the petitioner. The writ petition in the peculiar circumstances of the case is competent and the objection of the respondent has no force. The perusal of impugned order reflects that it was allegedly announced on 6-4-2006 but the respondents have failed to produce on record any notice or other evidence to show that the case was fixed on 6-4-2006. The assertion of the respondent that the impugned order was passed on 6-4-2006 stands negated by para No.7 of the impugned order, wherein a reference to letter, dated 8-4-2006 has been made. The same reads as under: --

"(7) On 8-4-2006 the Valuation Department vide letter C. No.IV-V PI-25/2005/307, dated 8-4-2006 supplied the valuation data of goods wider consideration for final assessment which was not for the relevant time period and as such the same cannot be applied in terms of Rule 107(a) of Chapter-X (sub-chapter-I) notified vide S.R.O. 450(I)/2001; dated 18-6-2001."

The stance of the respondent is further falsified by the endorsement made at the bottom of the impugned order, which is also reproduced hereunder:--

"C.No.V-CUS/MISC/1242/(IV)/2004/1215, DATED 19-5-2006"

6. The date on which the impugned order is passed will be the date when assessment was finalized and conveyed be 19-5-2006. Since final assessment has not been made within the period of limitation, thus the provisional assessment has attained finality.

7. For the foregoing, this petition is allowed and the respondent are directed to discharge the petitioner from the security, which was furnished for the differential amount and return the relevant documents.

S.A.K./W-10/LPetition accepted.