AMAN & AMIN TRADING CO. through Proprietor VS DEPUTY COLLECTOR OF CUSTOMS, APPRAISING INTELLIGENCE BRANCH, KARACHI
2008 P T D 459
[Karachi High Court]
Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ
Messrs AMAN & AMIN TRADING CO. through Proprietor
Versus
DEPUTY COLLECTOR OF CUSTOMS, APPRAISING INTELLIGENCE BRANCH, KARACHI
SPl. Cus. Ref. A. No.295 and C.M.A. No. 1374 of 2007, decided 28th September, 2007.
Customs Act (IV of 1969)---
----S.194-C(3)(4) [as amended by Finance Act (IV of 2007)] & S.196---Appeal to High Court---Valuation of disputed goods imported by appellant---Dismissal of appeal by Single Member of Tribunal for lack of jurisdiction---Validity---Plea that in view of. provisions of S.194-C(3)(4) of Customs Act, 1969 as amended by Finance Act, 2007 w.e.f. 1-7-2007, such matter could be heard by Single Member of Tribunal, who had no jurisdiction to proceed with matter at the time of passing impugned order---Validity---Such amendment had no retrospective applicability so as to rectify such jurisdictional defect in impugned order---By virtue of such amendment, Single Member of Tribunal had jurisdiction to proceed with appeal looking to controversy involved therein---High Court set aside impugned order and remanded case to Tribunal for re-hearing of appeal within specified time.
Junaid Ghaffar for Applicant.
Raja Muhammad Iqbal for Respondent.
ORDER
By this reference application, under section 196 of the Customs Act, 1969, following questions have been proposed by the applicant for the opinion of this Court:-
"(a) Whether in the facts and the circumstances of the case the learned Customs Tribunal was justified in hearing the matter singly for a valuation dispute in total disregard to the provisions of section 194-C(3) of the Customs Act 1969?
(b) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in upholding the allegation of misdeclaration and imposition of fine and penalty despite the fact that the unit of measure had been declared in the Goods Declaration according to the First Schedule to the Customs Act, 1969 and found to be correct admittedly?
(c) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in upholding that difference in weight was liable to imposition of fine and penalty despite the fact that the assessment was being made on unit/No. of pieces as prescribed under the Act?
(d) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in upholding that the confiscation and release against redemption fine made under clause (9) of section 156(1) of the Customs Act 1969 was correct despite the fact that the show-cause notice was issued for violation of section 32 punishable under clause (14) of section 156(1) of the Act ibid?
(e) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in holding that there would have been loss of duty and taxes to the Government due to difference in weight despite the fact that the law required that the assessment is to be made on the basis of No unit which was admittedly found correct?
(f) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in upholding the fine and penalty on the applicant despite the fact the element of "Mens rea" was missing in the case?
(g) Whether in the facts and the circumstances of the case the Customs Tribunal was justified in holding that the assessment made on the basis of "fair value provided by group" was in accordance with the provisions of section 25 of the Customs Act, 1969?"
2. At the outset learned counsel for the applicant, in the context of question No. (a) proposed in the reference application has read section 194-C(3)(4) of the Customs Act, 1969 and vehemently contended that from the bare reading of the impugned order dated, 16-4-2007 passed by learned Single Member of Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-II it is evident that dispute, inter alia, involved in the appeal before him was regarding the valuation of the disputed goods imported by the applicant, as highlighted in Para-7 of the said order, therefore, at the relevant time the learned Single Member had no jurisdiction to proceed with the matter. He further contended that though after the amendment in the relevant section 194-C(3)(4) by the Finance Act, 2007 w.e.f 1st July, 2007, now this matter could be heard and decide afresh by the learned Single Member on merits, but due to lack of jurisdiction of learned. Single Member to proceed with the matter at the relevant time the question No.(a) proposed in this Reference application may be answered in the negative and the case may be remanded for fresh decision of appeal on merits and in accordance with law.
3. Mr. Raja Muhammad Iqbal learned counsel for the respondent is' unable to controvert the above contention that the question/dispute has regards the valuation of the goods, as discussed in para.7 of the impugned order, was involved in the matter therefore, at the relevant time, in terms of section 194-C(3)(4), the learned Single Member of the Tribunal had no jurisdiction to proceed with the matter.
4. We have considered the submissions of the learned counsel and perused the material placed on record, particularly the provision of section 194-C(3)(4) before its amendment vide Finance Act, 2007 and thereafter and noticed that at the time of passing of impugned order the learned Single Member of Customs, Excise and Sales Tax Appellate Tribunal had no jurisdiction to proceed with the matter while sitting as single Member of the Bench, as one of the controversy involved in the appeal was about the dispute of valuation. Moreover, the relevant amendment brought through Finance Act, 2007 has no retrospective applicability so as to rectify such jurisdictional defect in the impugned order dated 16-4-2007.
5. This being the position and following our earlier view, contained in the order dated 30-8-2067 passed in Special Customs Appeal No.53 of 2007, we answer the question No. (a) in the negative and consequently set aside the impugner order dated 16-4-2007 and remand the case to the Customs, Excise and Sales Tax Appellate Tribunal Karachi for re- hearing of the appeal. We may clarify that after the amendment in section 194-C by virtue of Finance Act, 2007 w.e.f. 1-7-2007 the learned Single Member of the Tribunal has now the jurisdiction to proceed with the appeal looking to the controversy involved therein.
6. In the above terms, this reference application is disposed of since this reference application has been disposed of on purely technical ground, therefore, in order to avoid any further delay, the Tribunal is directed to hear and decide the case of the present applicant within two(2) months from the date of communication of this order.
S.A.K./A-143/KCase remanded.