INDUS STEEL PIPE LTD VS COLLECTOR, CUSTOMS, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1472 (2008)

Customs Act (IV of 1969)---

----Ss. 32(1)(2), 86, 156(1)(62) & 196---Removing imported goods without payment of duty and taxes chargeable thereon---Payment of penalty---Appeal to High Court---Notice was issued to importer alleging that he, having removed imported consignment without payment of duty and taxes chargeable thereon, was to pay twice the amount under S.86 of the Customs Act, 1969 as per bond furnished by him at the time of importation---Grievance of importer was that despite payment of duty and taxes within the required time given in notice, he was held guilty under Ss.32(1)(2) and 86 of Customs Act, 1969 and was asked to pay additional customs duty in terms of S.83-A of Customs Act, 1969 for his failure to pay duty and taxes within prescribed time and manner---Importer was also held liable to pay additional sales tax---Held, in such circumstances it was clause (62) of S. 156(1) of Customs Act, 1969 which was applicable and not clause (90) of said Section-Under clause (62) of S.156(1) of Customs Act, 1969, if any person illegally would take away goods out of any warehouse without payment of duty, he would be liable to penalty not exceeding twenty five thousand rupees---Counsel for authorities was unable to rebut arguments advanced by counsel for importer---Importer's appeal was allowed by the High Court in circumstances.

Collector Customs Pesh. v. Messrs Paper International (Pvt.) Ltd. 2007 SCMR 195 ref.

Ch. Muhammad Iqbal for Appellant.

Shoukat Ali Qureshi for Respondent.

Soofia Saeed, learned Standing Counsel.

JUDGMENT

MRS. YASMIN ABBASEY, J.---Facts of this case are that on 22-9-2005 a notice was received by appellant from Deputy Collector, Collectorate of Customs, Sales Tax and Federal Excise, Hyderabad that the consignment imported by him under in Bond B/E St. No.0917, dated 23-10-2004 has been removed by them without payment of duty and taxes chargeable thereon, as such he was asked to pay twice the amount under section 86 of the Customs Act as per bond furnished by him at the time of importation, within three days from receipt of this notice. In compliance thereof, the appellant paid tax double to the amount payable on the goods vide challan, dated 26-9-2005.

Grievance of the appellant is that in spite of payment of duty and taxes within the required time given in notice, dated 22-9-2005 again a show-cause notice has been served on him on 29-12-2005 alleging to have been committed an act in violation of section 32(1)(2) and 86 of the Customs Act, 1969.

Show-cause notice was examined in the order-in-original and 'de order, dated 2-3-2006 appellant was held guilty of sections 32(1)(2) and 86 of the Customs Act and was asked to pay additional customs duty in terms of section 83-A on account of their failure to pay due taxes within the prescribed time and manner. Appellant was also held liable to pay additional sales tax under section 34 of the Sales Tax Act, 1990 on account of failure to pay due taxes within the time and manner as specified in section 34(1) of the Sales Tax Act, 1990. Penalty equivalent to three times the value of the goods was also imposed for violation of section 32 in terms of clause 14 of section 156(1) of the Customs Act, 1969 with other imposition, detailed in the order in original.

This order was assailed in Customs Appeal No.270 of 2006 before the Collector (Appeals), Customs, Sales Tax and Federal Excise, Hyderabad, who set it aside but again in appeal preferred by the department order of Collector (Appeals), Customs, Sales Tax and Federal Excise, Hyderabad was decided and order in original, dated 2-3-2006 was maintained.

It is argued by learned counsel for appellant that after payment of taxes in compliance of the notice, dated 22-9-2005, the alleged action under section 86 of the Customs Act is illegal and beyond the jurisdiction of the authority concerned. To support his argument, learned counsel for appellant has referred clause (62) of section 156 of the Customs Act, which provides that if any person illegally takes away any goods out of any warehouse without payment of duty, he shall be penalized to an amount not exceeding Rs.5,000 whereas even after realizing the amount much higher than provided under the law appellant is being victimized. A case of Collector Customs Peshawar v. Messrs Paper International (Pvt.) Ltd. (2007 SCMR 195) has been referred, wherein while discussing clauses (62) and (90) of section 156 of the Customs Act, it is observed that:--

"A plain reading of the two clauses juxtaposed, would indicate without difficulty of comprehension for interpretation that to the circumstances of the present case it is clause (62) of the section that applies and not clause (90). It clearly provides that the penalty shall not exceed rupees twenty five thousand and the person concerned can also be tried by the Special Judge Customs. If found guilty he shall be liable to imprisonment for a term not exceeding five years or fine or to both.

In the circumstances, the High Court rightly came to the conclusion that it arrived at. There being no force in the petition, it is hereby dismissed and leave to appeal refused."

Learned counsel for the respondents in spite of his best efforts was unable to rebut the arguments advanced by learned counsel for appellant and to point out the non-applicability of the principle laid down in the above referred case by Hon'ble Supreme Court of Pakistan, in the present case.

In view of the above discussion and the observations made by the Hon'ble Supreme Court of Pakistan, appeal of the appellant is hereby allowed.

These are the reasons for the short order announced on 5-12-2007.

H.B.T./I-5/KAppeal allowe