A-ONE FEEDS through Managing Partner VS DEPUTY COLLECTOR, ADJUDICATION-I, KARACHI, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1029 (2008)

Customs Act (IV of 1969)---

----Ss. 9, 25, 59 & 196---Declaring P.C.T. heading---Rate of duty---Exemption from the levy of sales tax---Reference to High Court---Assessee imported a consignment of choline chloride 60%, declaring P.C.T. heading as 2309.9000 attracting customs duty at 25 % claiming exemption from levy of sales tax in terms of serial No.23 to VI Sched. of Sales Tax Act, 1990---Application moved by assessee for amendment in the declaration of P.C.T. heading and rate of duty as 2923.1000 attracting duty at 10% ad valorem, having concurrently been rejected by Deputy Collector and Appellate Tribunal, assessee had filed application for reference to High Court---Question whether the goods imported under the title of choline chloride 60% fell under P.C.T. heading 2923.1000 or 2309.9000 with reference to the components found in the subject consignment, was an academic question and that had been thoroughly discussed in the order in original-Question which had mainly argued by the counsel for assessee was a question of composition of consignment, which being a question of fact, could not be entertained at the reference stage---Assessee being a regular importer of choline chloride getting it cleared under P.C.T. Heading 2309.9000, which had not been rebutted by him at the trial stage, could not back out from his previous statements, just to take benefit of low rate of customs duty under P.C.T. Heading 2923.1000 without any justification---Reference was rejected.

Ammar Yasir for Applicant.

Raja Muhammad Iqbal for Respondent.

ORDER

MRS. YASMIN ABBASEY, J.---Brief facts of the case are that the applicant imported a consignment of Choline Chloride 60% at US$ 725 per M/Ton from India declaring PCT heading as 2309.9000 attracting customs duty at 25% with an exemption from the levy of sales tax in terms of Serial No.23 to VI Schedule of Sales Tax Act, 1990.

On 25-3-2004 applicant/importer moved an application for amendment in the declaration of PCT heading and rate of duty as 2923.1000 attracting customs duty at 10% ad valorem. Application was rejected and it was observed by Deputy Collector Adjudication that the goods fall under PCT heading 2309.9000 as originally declared by the importer and also that it was not importable from India. Against this order of Deputy Collector (Adjudication), appeal was filed before the Customs Appellate Tribunal. Question that whether Choline Chloride 60% falls under which particular heading, it is observed that:--

"It is, therefore, evident that the product Choline Chloride 60% is not a separately defined chemical compound and, therefore, does not fall under PCT heading 2923.1000.

It is, therefore held that in view of the above discussion and relying on the WCO, the imported product is classified under PCT heading 2309.9000 as had been legally claimed by the appellant at the time of filing goods declaration."

So far as the next issue that whether Deputy Collector (Adjudication) was an authorised officer to adjudicate, it was observed that "the contention of the respondent (Department) that the case has to be adjudicated by the competent officer of Adjudication Collectorate in accordance to S.R.O. 337(I)/2002, dated 15-6-2002 because a dispute of differential amount of customs duty had arisen due to assessment of goods under different PCT headings appeals to reason".

It is argued by learned counsel for respondent that the observation of Customs Appellate Tribunal that as the subject chemical has not been separately defined in the tariff under any particular 'PCT heading, therefore, it falls under PCT heading 2309.9000 and that there is sufficient evidence on record that applicant is a regular importer of subject goods and had been continuously clearing it under PCT heading 2309.9000. It appears that evidence produced by department in this respect was not controverted by applicant at the primary stage nor at this forum.

From the above discussion and after perusal of judgment of the two forums below, we are of the view that the question whether the subjected goods falls within which particular PCT heading is a question of fact and cannot be determined at this stage. To say that whether the goods imported under the title of Choline Chloride 60% falls under PCT heading 2923.1000 or 2309.9000 with reference to the components found in the subject consignment is an academic question and that has been thoroughly discussed in the order in original, dated 20-7-2004. On the face of it question No.3, which has mainly been argued by learned counsel for applicant is a question of fact of composition of consignment, hence we are of the view that the same being a question of fact cannot be entertained at this stage. Even otherwise, as discussed above, applicant being a regular importer of Choline Chloride getting it cleared under PCT heading 2309.9000, which has not been rebutted by him at the trial stage, cannot back out from his previous statements, just to take benefit of the low rate of customs duty under PCT Heading 2923.1000 Without any justification.

In view of the foregoing reasons, we find no substance in the reference and the same is hereby rejected.

H.B.T./A-27/KReference rejected.