FACO TRADING through Attorney VS FEDERATION OF PAKISTAN through Secretary, Revenue Division, Islamabad
2008 P T D 1216
[Karachi High Court]
Before Mrs. Yasmin Abbasey and Qamaruddin Bohra, JJ
Messrs FACO TRADING through Attorney
Versus
FEDERATION OF PAKISTAN through Secretary, Revenue Division, Islamabad and 2 others
C.P. No.2254 of 2006, decided on 25/03/2008.
Customs Act (IV of 1969)---
----Ss. 25(1), 35, 81 & 194-A---Constitution of Pakistan (1973), Art.199---Constitution petition---Maintainability---Refund claim and duty draw back a mixed question of law and fact---Proper forum for---Subject consignment was to be assessed under which the point for consideration was of refund of differential amount deposited by petitioner for release of his consignment after provisional assessment under S.81 of the Customs Act, 1969 as according to petitioner by virtue of S.25(1) of Customs Act, 1969 the goods had to be assessed on the basis of transaction, and value and not otherwise---Proper forum for seeking relief of refund claim was the Customs Appellate Tribunal and before availing such relief constitutional petition before the High Court was not maintainable---Section 194-A of Customs Act, 1969 would be relevant for the purpose which prescribed that any person or the officer of customs aggrieved by any orders specified in S.194-A could appeal to Appellate Tribunal against such orders---With the omission of 1st Proviso to S.194-A of Customs Act, 1969, jurisdiction for payment of duty drawback lay with the Appellate Tribunal---To assess whether the importer or exporter was entitled to a duty drawback on a particular consignment proper enquiry was required which could not be held in constitutional petition as enquiry relating to duty drawback was a mixed question of law and fact---High Court was not a proper forum to examine and adjudicate upon a question as to whether petitioner was entitled to the refund of post dated cheques.
Ghulam Ahmed Khan for Petitioner.
Raja Muhammad Iqbal for Respondent No.2.
Haider Iqbal Wahniwal for Respondent No.3.
ORDER
MRS. YASMIN ABBASEY, J.---Precisely the facts of the case are that in February, 2006 petitioner imported Ceramic Tiles and Ceramic Wares from China. The goods were presented for the assessment as per transaction value but respondents Nos.2 and 3 i.e. the Collector of Customs (Appraisement) and Collector of Customs, Model Collectorate arbitrary enhanced the declared value. On protest of petitioner, goods were released under section 81 of the Customs Act, 1969 after deposit of post dated cheques for the differential amount of tax. It is stated that respondents Nos.2 and 3 despite the fact that neither the transaction value declared by the petitioner was found to be incorrect nor any evidence was available with the Custom Department clearing similar goods on enhanced value, erratic decision is contrary to law.
Petitioner through Message System Reports was intimated that provisional assessment of subject goods has been finalized by respondent No.3 on 26-5-2006 and the petitioner was asked to seek refund of excess amount provisionally deposited with the respondents. Against this assessment with enhanced rate, petitioner filed an appeal before the Collector of Customs (Appeal). It was disposed of on 5-9-2006 with the observation that:---
"Honourable High Court of Sindh is considering the aforesaid question and it would be in the best interest of justice for me not to attempt an answer to this question. Therefore, I order the matter back to the Model Collectorate for disposal in the light of the order to be received from the Honourable High Court of Sindh. The appeal is disposed of accordingly."
According to petitioner, he came to' know that respondent No.4 through respondents Nos.2 and 3 are attempting to follow a fixed predetermined value of tiles and sanitary wares, which is reproduced by petitioner in para 8 of petition, which read as under:-.
"(i) "Interim Assessable values of tiles W.E.F. 1-4-2004.
(ii) "Valuation ruling 492/200, dated 18-1-2006 (issued allegedly under Fall back Method"';
(iii) "Letter C. No. Misc. /3/05-III-C/3164, dated 29-4-2006" of respondent No.4, which mentioned "Indicative values of Chinese origin ceramic and porcelene tiles";
(iv) "Valuation ruling 594 dated 24-5-2006", (Also issued under alleged fall back method under section 25(9) of Customs Act).
Gatt System of valuation adopted by Pakistan has not been approved by fixed valuation system, therefore, sections 25B and 25(14) of Customs Act, 1969 were omitted. Respondents adopted the self made and hypothetical method of valuation contrary to the provisions of Customs Act and Rules. Value of imported goods cannot be determined with reference to any particular case. Assessment and determination has to be carried out independently in each case as per rules provided in the Act.
Encashment of post dated cheques deposited by the petitioner with respondents of differential amount for release of consignment is illegal and void, hence it is prayed that the respondent No.3 be restrained from encashing the post dated cheques till an opportunity of hearing is provided to the petitioner. It is further prayed that the excess amount deposited be returned and be treated to have been retained on provisional assessment basis under section 81 of Customs Act, 1969.
From perusal of some of the documents filed along with the petition, it is found that the department had assessed or finalized the provisional assessment of imported goods under full back method as provided in section 25(9) of Customs Act, 1969 is contrary to what has been alleged by the petitioner in para. 10 of the memo. of petition of examining the goods under Gatt System of valuation, which has been omitted from the Act late back in June, 2004 and June, 2005.
Apart from the fact that the subject consignment was to be assessed under which particular mode, the point for consideration in the present petition is of refund of differential amount deposited by the petitioner for release of his consignment after provisional assessment under section 81 of Customs Act, 1969, as according to petitioner by virtue of section 25(1) of Customs Act, 1969 the goods had to be assessed on the basis of transaction and value and not otherwise.
In the given circumstances, apart from other legal issues as to be the assessment of goods under section 25(1) or under section 81(3) of Customs Act, 1969, learned counsel for the respondent argued that the proper forum of seeking relief of refund claim is the Custom Appellate Tribunal and before availing the opportunity available at the first instance, petition before this Court is not maintainable. Section 194A of Customs Act, 1969 would be relevant for the purpose, which prescribes that any person or an officer of Customs aggrieved by any orders specified in section 194A may appeal to the Appellate Tribunal against such orders, and with the omission of 1st provision to section 194A, jurisdiction for payment of duty drawback lies with the Appellate Tribunal. To assess that the importer or exporter is entitled to' a duty drawback on a particular consignment requires proper enquiry, which cannot be held at this stage as enquiry relating to duty drawback is a mixed question of law and fact.
In view of the foregoing reasons we are of the view that this is not a proper forum to examine and adjudicate upon a question that whether the petitioner is entitled for the refund of post dated cheques.
With these observations petitioner stands dismissed. Petitioner may approach to the. proper forum for his relief.
H.B.T./F-29/KPetition dismissed.