NAJAM IMPEX, LAHORE through Sole Proprietor VS ASSISTANT COLLECTOR OF CUSTOMS, KARACHI, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1250 (2008)

Customs Act (IV of 1969)---

----Ss. 25, 25-A & 81---Constitution of Pakistan (1973), Art.199---Constitutional petition---Determination of customs value of goods---Power to take over the imported goods---Provisional assessment of duty--Language of S.25 of the Customs Act, 1969 was mandatory which required the department to follow the prescribed procedure step by step for the purpose of determining the value of imported goods and if no result was coming out then it could avail the remedy under S.25-A of Customs Act, 1969 whereunder determination of the import value was to be made on the basis of transaction value, provided that condition provided in subsection (1)(a) of S.25-A was not available---If an importer was crossing subsection (1)(a) of S.25 of Customs Act, 1969 then other subsections of S.25 were to be followed---In the present case Customs Authorities had given the ruling without any reasoning nor they mentioned as to how they had reached that conclusion or to do that whether they had evidence of other imports of more value nor the affected persons had been given any opportunity to be heard---Ruling of the customs authorities, in circumstances, could not be sustained and assessment on its basis was set aside by High Court---Customs authorities were required to issue a notice to all petitioners within 15 days time and would determine the value of goods keeping in view strictly the step provided for its determination in S.25, Customs Act, 1969---Said process was directed to be done within two months and post dated cheques submitted by the petitioners towards the deferential amount would not be encashed by the department until final determination of the customs duty---Constitutional petitions were disposed of accordingly.

Rehan Umar v. Collector of Customs 2006 PTD 909; Khan Trade International v. Assistant Collector Customs 2006 PTD 2807 and Karachi Bulk Storage v. Collector of Customs 2004 PTD 2592 ref.

Salahuddin Ahmed along with Nadeem Ahmed and Rajender Chaberia for Petitioner.

Raja Muhammad Iqbal and Haider Shaikh for Respondent.

ORDER

By this common order, we intend to dispose of all these above mentioned petitions in which the basic grievance of the petitioners is that the Customs Department has failed to follow mandatory provisions of sections 25 and 25-A of the Customs Act and without any rhyme or reason has fixed arbitrary import price, notwithstanding the fact that the import price was supported by all the documents, including invoices from the foreign exporters while there was no contrary evidence.

Mr. Salahuddin Ahmed, learned counsel for the petitioners submit that notwithstanding the above position, favouring the petitioners, the valuation has been determined by the customs on the basic of so-called valuation ruling No.Misc./14/2006-VI-B/7833, dated 27-12-2006. He further submits that the respondents have no right to give such type of blanket ruling without following section 25 and 'even section 25-A of the Act can only be resorted to when there is nothing available to determine the value of imported goods. He submits that there is a much difference between the actual import price of the petitioners and the price which has been given in the alleged ruling and that provisional or final assessment cannot be accepted by the petitioners as the same is contrary to law. He has cited following authorities:---

1. Rehan Umar v. Collector of Customs 2006 PTD 909, 2. Khan Trade International v. Assistant Collector Customs 2006 PTD 2807 and 3. Karachi Bulk Storage v. Collector of Customs 2004 PTD 2592.

On the other hand Mr. Raja Muhammad Iqbal along with Mr. Haider Shaikh, learned counsel for the respondents, submit that the ruling has been prepared just to tackle so many pending imports of or, type. They further submit that the department has given this ruling under section 25-A keeping in view the departmental guidance through a handbook and that there is no wrong in the said ruling which has been determined keeping in view the current value of the similar imported items as per record of the Customs. They further submit that some of the petitioners have also requested for provisional assessment which has been done, and now the cases are pending for final valuation in terms of section 81 of the Customs Act and the Department is bound to determine final value within the given time but since the petitions are pending, therefore, the matter cannot be taken finally. They have further submitted that if the petitioners have any grievance against the valuation department under section 25-A then they can resort to remedy available under section 25-D for review and same can be entertained.

After hearing the learned counsel, we observe that through the comments filed in the petition by the respondent that they have made up their mind to avail the department ruling given in the document, dated 27-12-2006 therefore, no useful purpose will be served if the cases are finally examined under section 81 as the petitioner's request, as has been made here, will not be entertained by the Customs Authority. We have also observed that the language of section 25 of the Customs Act is mandatory and it requires the department to follow step by step for the purpose of determining the value of the imported goods and if there is no result coming out then they may avail the remedy under section 25-A. As per language of the above section the determination of the import value should be on the basis of transaction value, provided that conditions provided in subsection (1)(a) of section 25 are not available. If an importer is crossing subsection (1)(a) then other subsections of section 25 of the Act to be followed. Here in the case, the customs authorities have given the ruling without any reasoning nor it has been mentioned as to how they have reached that conclusion or do they have evidence of other imports on more value nor the affected persons have been given any opportunity to be heard.

In such a situation, above ruling relied upon by the department cannot be sustained and assessment on its basis is set aside. Mr. Raja Muhammad Iqbal, states that in such a situation the petitioners be directed to approach the respondent, so the value of the goods may be determined. Of course, after setting aside the assessment on above ruling, the respondent are required to issue a notice to all the petitioners within 15 days time and will determine the value of goods keeping in view strictly the step provided for its determination in section 25 of the Customs Act. The said process is to be done within two months with further observation on the request of the petitioners, that the post-dated cheques submitted by the petitioners towards the differential amount will not be encashed by the department until final determination of the customs duty.

All the petitions stand disposed of in above terms.

H.B.T./N-12/KOrder accordingly.