Rana NADEEM AHMAD VS ASSISTANT COLLECTOR CUSTOMS, DRY PORT MULTAN, 2007 PTD-LAHORE-HIGH-COURT-LAHORE 2485 (2007)

Customs Act (IV of 1969)---

----Ss. 81, 194, & 196---Smuggled vehicle---Provisional assessment of duty @ 25 %---Report of Indus Motor Company confirming seating capacity of vehicle-in-question as six---Vehicle having more than 10 seats was chargeable to duty @ 25 %, while vehicle having less than 10 seats was chargeable to duty @ 225 %---Authority directed appellant to pay duty @ 225 %, which order was. upheld by Tribunal---Plea of appellant was that such report did not relate to vehicle-in-question and could not be made basis in his case; and that he was not provided opportunity to cross-examine its scribe---Validity---Tribunal had not taken into consideration facts of appellant's case, but had considered facts of another case---Appellant was correct in contending that facts stated in impugned judgment did not relate to his case---High Court set aside impugned judgment and remanded case to Tribunal to decide same afresh after hearing parties and taking into consideration the facts of appellant's case.

Quetta Textile Mills Ltd. v. Federation of Pakistan and 2 others 1997 CLC 755; Collector of Customs, Appraisement, Karachi v. Messrs H.M. Abdullah and another 2004 PTD 2993; Messrs Dewan Farooque Motors Ltd., Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and 2 others 2006 PTD 1276; Collector of Customs (Appraisement), Karachi, v. Messrs Auto Mobile Corporation of Pakistan, Karachi 2005 PTD 2116; Messrs Farooq Woollen Mills v. Collector of Customs, Customs Dryport, 5ambrial and 2 others 2004 PTD 795 and Messrs S. Fazal Elahi and Sons v. Deputy Collector Customs and others, Writ Petition No. 3726 of 2006, Messrs Faran Enterprises through Proprietor Muhammad Zaman v. The Appellate Tribunal, Customs, Excise and Sales Tax and another 1999 CLC 735 ref.

Mian Abdul Ghaffar for Appellant.

Ch. Saghir Ahmad Standing Counsel for Respondent.

Date of hearing: 17th April, 2007.

JUDGMENT

IQBAL HAMEED-UR-REHMAN, J.---The instant appeal has been filed under section 196(1) of the Customs Act, 1969 against the judgment, dated 12-1-2005 passed by the Customs, Central Excise and Sales Tax Appellate Tribunal, Lahore.

2. The brief facts required for the determination of the instant appeal are that the appellant purchased Toyota Hiace Van bearing Chassis No. LH-516-0008715 from open market which was registered in the name of Mst. Rasheeda Begum under Registration No. MNX-494 Later on, when it revealed that the said vehicle was imported without payment of duties and taxes, the appellant requested respondent No.1 seeking permission to make payment of duties and taxes. The request of the appellant was accepted and duties/taxes were assessed provisionally and the appellant was directed to pay an amount of Rs. 59,718 (CD 29,305, Sales Tax Rs.21,908 and Income Tax Rs.4,825) in cash and furnish bank draft for Rs.50,000 as security under section 81 of the Customs Act, 1969. The appellant complied with the said direction on 28-1-2000, pending final assessment. The vehicle-in-question was assessed provisionally @ 25 % of the ascertained value under section 81 ibid. Subsequently, a reference was made to' Messrs Indus Motor Company Ltd., Karachi for confirmation of the seating capacity. The company confirmed that the seating capacity of the vehicle is six. The vehicles fitted with more, than 10 seats were chargeable to customs duties @ 25% while the vehicle having less than 10 seats were chargeable to Customs duties @ 225%. Keeping in view the report of .Messrs Indus Motor Company Ltd., Karachi, the vehicle was classifiable under PCT classification 8703.9020 attracting Customs duty @ 225 % and an amount of Rs.2,67,581 was assessed as Customs duty recoverable from the appellant. On the basis of these facts, the appellant was required to explain as to why the said amount may not be recovered from him. As no one appeared on behalf of the appellant nor any written statement was filed, the case was decided ex parte vide order, dated 25-9-2005 by the Deputy Collector Adjudication. Being aggrieved of the said order, dated 25-9-2005, the appellant .filed appeal under section 194-A(1) of the Customs Act, 1969 before the Customs, Central Excise and Sales Tax Appellate Tribunal, Lahore which was dismissed vide judgment, dated 12-1-2005. Hence, this appeal challenging the original order, dated, dated 25-9-2000 and the judgment, dated 12-1-2005.

3. Instant appeal stood admitted on 11-5-2005. The admitting order reads as under:--

"Question requiring determination in this appeal is as to whether the learned Tribunal was justified to pass the impugned order on the basis of the statement made by the Finance Manager, Indus Motors particularly when no opportunity was given to the appellant to cross-examine the same."

4. Learned counsel for the appellant contends that from the bare perusal of the impugned judgment, it is apparent that the facts stated therein pertain to some other case of one Liaqe Din son of Rakam Din of District Mianwali adjudging the liability of said Liaqe Din as Rs.5,83,737 whereas the liability adjudged by respondent No.2-Deputy Collector Customs Adjudication, Multan against the appellant was Rs.2,67,581. Secondly, the assessment of the vehicle was made on the basis of report submitted by Mr. Farrukh Nazir, Manager Finance, of Messrs Indus Motor Ltd., Karachi which was ambiguous in nature and never disclosed to the appellant nor any opportunity was given to him to cross-examine the same. Thirdly, the provisional assessment made on 26-1-2000 had attained finality after the expiry of 180 days and the appellant was entitled for the return of the security furnished at the time of provisional assessment in term of subsection (4) of section 81 of the Customs Act, 1969. Learned counsel in support of his contentions has relied upon 1997 CLC 755 (Quetta Textile Mills Ltd. v. Federation of Pakistan and 2 others), 2004 PTD 2993 (Collector of Customs, Appraisement, Karachi v. Messrs H.M. Abdullah and another), '2006 PTD 1276 (Messrs Dewan Farooque Motors Ltd., Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and 2 others), 2005 PTD 2116 (Collector of Customs (Appraisement), Karachi, v. Messrs Auto Mobile Corporation of Pakistan, Karachi), 2004 PTD 795 (Messrs Farooq Woollen Mills v. Collector of Customs, Customs Dryport, Sambrial and 2 others), and an unreported judgment passed at the Principal Seat in Writ Petition No. 3726 of 2006 titled, "Messrs S. Fazal Elahi and Sons v. Deputy Collector Customs etc.".

5. On the other hand, learned counsel for the respondents has argued that for the first time, the learned counsel for the appellant has raised the aforesaid contentions. Moreover, this Court in appeal is to adjudicate only on the question of law. Reliance in this regard, has been placed on 1999 CLC 735 (Messrs Faran Enterprise through Proprietor Muhammad Zaman v. The Appellate Tribunal, Customs, Excise and Sales Tax and another).

6. Arguments heard and the impugned order as well as the impugned judgment perused.

7. On perusal of impugned judgment, dated 12-1-2005 with the assistance of the learned counsel for the appellant, we find the contentions raised by him to be correct as the facts stated in the impugned judgment do not relate to the case of the appellant. The first and second paras of the facts, as stated therein, are reproduced hereunder:--

"This appeal is directed against Order-in-Original No.311- A 312/2000 passed by the learned Deputy Collector, Customs, Sales Tax and Central Excise (Adjudication), Multan on 25-9-2000 whereby the appellant was ordered to pay short assessed customs duty and taxes amounting to Rs.5,83,737.

(2) The facts leading to this appeal are that Mr. Liage Din son of Rakam Din resident of Tola Mangli, P/O Tala Mangli Tehsil Essa Khail, District Mianwali bearing N.LC. No.240-92-156841, applied for assessment of vehicle Toyota Hiace Van bearing Chassis number LH6IV-0105516. The seating capacity of subject vehicle Type LH6IRV-QRE was not confirmed, hence the vehicle was assessed provisionally under section 81 of the Customs Act, 1969 and a reference was made to Messrs Indus Motors Company Limited, Karachi for confirmation of the seating capacity. The company confirmed that the seating capacity of the vehicle was six. In view of this report the vehicle was classifiable under PCT Heading 8703.9020 attracting Customs Duty @ 225 % val. Hence an amount of Rs.4,17,818 as customs duty, Rs.70,173 as sales Tax Rs.26,900 as income tax and Rs.68,846 as C.V.T. (total being Rs.5,83,737) was short assessed and was thus recoverable. The appellant was required to explain as to why the aforesaid amount may not be recovered from him. After hearing both the parties, the learned adjudicating officer ordered the appellant to pay short assessed customs duty and taxes amounting to Rs.5,83,737. Hence, this appeal."

Firstly the facts are distinguishable. The Deputy Collector Adjudication has adjudged the amount against the appellant as Rs.2,67,581 vide order, dated 25-9-2000 whereas in the first para of the judgment, dated 12-1-2005, the amount is stated to be Rs.5,83,737. Further in the second para as is apparent, that the learned Tribunal has stated that this appeal. is al' Mr. Liage Din son of Rakam Din resident of Tola Mangli, P/O Tola Mangli Tehsil Essa Khail, District Mianwali bearing NIC, No.240-92-156841, applied for assessment of vehicle Toyota Hiace Van bearing Chassis number LH6IV-0105516 whereas the appeal was tiled by the appellant Rana Nadeem Ahmad son of Shaukat Ali, resident of 3416/9, Bairoon Bohar Gate, Multan in respect of Vehicle of Toyota Hiace Van bearing Chassis No. LH-51-0008715.

8. The discrepancies, mentioned above, are explicit and the learned Appellate Tribunal while deciding the appeal, had not taken into "consideration the facts of the case of the appellant rather the facts of the case of one Liaqe Din son of Rakam Din were considered. Secondly, the contention raised by the appellant that with regard to the assessment being based on the report and subsequent statement of one Farrukh Nazir, Manager Finance of Indus Motor Ltd., Karachi, the appellant had not been afforded an opportunity to cross-examine him.

In view of the above, we find that the learned Appellate Tribunal at the time of deciding the appeal has passed the impugned judgment in a mechanical manner without properly examining the correct facts of the appellant's case which require to be rectified. In the circumstances, we accept this appeal and remand -the case to the Appellate Tribunal to rehear the parties and after taking into consideration the facts of the appellant's case, adjudicate the matter afresh. No order as to costs.

S.A.K./N-65/LCase remanded.