CLOVER PAKISTAN LTD. through General-Manager Finance VS FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1587 (2008)

Customs Act (IV of 1969)---

----S. 81---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Provisional assessment of duty---Declared transaction value of the goods imported was not accepted by the Collector of Customs, however, after provisional assessment of goods, under S.81 of Customs Act, 1969, by imposing a loading on the transaction value, goods were released subject to furnishing Bank guarantees for differential amount, till the finalization of the assessment---Importer furnished Bank guarantees, but even after expiry of stipulated period of six months with extended period of 90 days totalling to 270 days, assessment had not been finalized by the Customs Department; and without finalization of the assessment, a notice of encashment of Bank guarantees furnished by the importer had been issued by the Assistant Collector of Customs---Before final assessment of duty on the basis of market survey, no notice was issued to the importer for providing him a chance to clarify his point of view---As the provisional assessment was not finalized by the Customs Department within the stipulated period of 270 days, any action taken by Customs Department of encashment of Bank guarantees furnished by the importer for the differential amount for the release of goods, was illegal---Importer was entitled to the refund of said amount.

Collector of Customs (Appraisement), Karachi v. Messrs Auto Mobile Corporation, Karachi 2005 PTD 2116; Messrs Hassan Trading Company, through Manzoor Hussain v. Central Board of Revenue, Government of Pakistan, Islamabad through Chairman and 2 others 2004 PTD 1979; Messrs Farooq Woollen Mills v. Collector of Customs, Customs Dry Port, Sambrial and 2 others 2004 PTD 795; Quetta Textile Mills Ltd. v. Federation of Pakistan and 2 others 1999 CLC 755 and Messrs Sajjad Nabi Dar and Co. v. The Commissioner of Income Tax, Rawalpindi Zone, Rawalpindi PLD 1977 SC 437 ref.

Abdul Ghaffar Khan for Petitioner.

Raja Muhammad Iqbal for Respondents.

ORDER

MRS. YASMIN ABBASEY, J.---Case of the petitioner is that under different contracts he had imported Dabur Vatika Shampoo and had placed Bills of Entry for consumption for the clearance of the goods on the basis of transaction value. It is stated that the declared transaction value of the goods was not accepted by respondent No.2. However, after provisional assessment of them under section 81 of the Customs Act, 1969 by imposing a lodging on the transaction value goods were released subject to furnishing Bank guarantees for differential amount till the finalisation of the assessment.

According to the petitioner, he had' furnished Bank guarantees in all the four cases of this import but even after expiry of stipulated period of six months with extended period of 90 days calculating to 270 days assessment has not been finalized by the Customs Department and without finalisation of the assessment a notice of encashment of bank guarantees furnished by the petitioner has been issued by the Assistant Collector of Customs on 14-2-2002. Reply of the same was submitted by the petitioner on 25-2-2002. It is agitated therein that before final assessment of duty on the basis of market survey no notice was issued to the petitioner for providing them a chance to clarify their point of view. Notice of encashment, dated 14-2-2002 further reveals that it is silent about the final assessment of the value and had just asked the petitioner to make payment. The stipulated period of finalizing the provisional assessment expired much earlier to the issuance of this notice, hence by virtue of section 81 clause (4) of the Customs Act, 1969 if final determination is not made within the period specified in subsection (2), the provisional determination shall in absence of any new evidence be deemed to be the final determination, therefore, any notice of encashment after the expiry of required time is unwarranted. The same view has also been taken in cases of Collector of Customs (Appraisement), Karachi v. Messrs Auto Mobile Corporation, Karachi (2005 PTD 2116), Messrs Hassan Trading Company, through Manzoor Hussain v. Central Board of Revenue, Government of Pakistan, Islamabad through Chairman and 2 others (2004 PTD 1979), Messrs Farooq Woollen Mills v. Collector of Customs, Customs Dry Port, Sambrial and 2 others (2004 PTD 795) and Quetta Textile Mills Ltd. v. Federation of Pakistan and 2 others (1999 CLC 755).

In reply to it, learned counsel for the respondents contended that notice of encashment was issued in February, 2002 and this petition has been filed after lapse of about six years, which amounts to laches. Even otherwise documents on the basis of which final assessment was made cannot be produced as the department destroys its record after three years. But this ground for non-production of evidence in the circumstances of the case, when the Department has initiated proceedings of encashment of bank guarantees again by letter, dated 26-5-2006 is unacceptable. If it is accepted that department has destroyed appellant's record, then it would be assumed that case of appellant was finalized on the basis of value declared by him, or if the position is vice versa then, it is unbelievable that during pendency of matter record was destroyed. Learned counsel for respondents has referred case of Messrs Sajjad Nabi Dar and Co. v. The Commissioner of Income Tax, Rawalpindi Zone, Rawalpindi (PLD 1977 SC 437) but the factual and legal aspects of the case are absolutely different to the present one and is not applicable.

In view of the foregoing reasons, we are of the view that as the provisional assessment was not finalised by the respondent department within the stipulated period of 270 days, therefore, any action taken by them of encashment of bank guarantees furnished by the petitioner for the differential amount for the release of goods is illegal and the petitioner is entitled for the refund of that amount.

Constitutional petition stands disposed of in above terms.

H.B.T./C-8/KOrder accordingly.