ALM TRADERS through Manager VS COLLECTOR OF CUSTOMS, COLLECTORATE, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 362 (2008)

Customs Act (IV of 1969)---

----Ss.18, 25, 27 & 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Making untrue statement with regard to imported goods---Petitioner/importer challenged the contravention report by the Customs Appraiser---Petitioner who filed its goods declaration vide G.D., had claimed that he had imported old and used computer system, parts and accessories, its value was declared and was offered for fist examination under first appraisement---Petitioner also offered payment of duty under Ss.18 & 27 of Customs Act, 1969---Department, however, ignored its request and prepared a contravention report against said G.D.---Validity---Department had directly initiated proceedings which should have been started at a later stage after determination of criminal intent on the part of the petitioner Provisions of S.32 of Customs Act, 1969 would come into operation when the circumstances would establish that importer was intentionally concealing facts of its import . and was not bringing on record itemized details for proper appraisement---In the present case, an offer was made by the petitioner being that it unaware of the complete details, was willing for proper appraisement of the goods and was also ready to pay taxes---Said offer had been treated as an act of concealing the value of the goods---Petitioner having requested for normal appraisement in normal circum stances, which had been treated as an attempt to defraud the Department, same required indulgence of the High Court---Constitutional petition was allowed in the manner that contravention-report against G.D., was set aside and Customs Authorities were directed to appraise the value under S.25 of the Customs Act, 1969.

Mian Abid Ahmad for Appellant.

Rana Abdul Hamid, Addl. A.-G. for Respondents.

Date of hearing: 10th January, 2008.

JUDGMENT

KH. FAROOQ SAEED, J.---This petition is against an order through which a contravention report prepared by Custom Appraiser has been challenged.

2. The petitioner filed his goods declaration vide GD No.8584, dated 4-12-2007 and claimed that he had imported old and used computer system, parts and accessories from U.K. Its value was declared at U.S. Dollars 12500 and was also offered for first examination under first appraisement. The petitioner inter alia also offered payment of duty under section 18 read with section 27 of Customs Act, 1969. The department however, ignored the request and prepared a contravention report which was prepared by Ashfaq Mahmood Appraiser against the above said GD, dated 4-12-2007. The said contravention report is challenged inter alia on the basis of following arguments:--

(1) That the petitioner voluntarily offered for payment of taxes and duties under section 18 read with section 27 of Customs Act, 1969 and he was not having complete information for the declaration of the goods. The concept of contra vention starts where there is an intended misdeclaration or wrong declaration. Since the petitioner had made no declaration at all there was no reason for going into such a severe penalization.

(2) The report impugned also lacks complete detail and description of the various items and its itemized value.

(3) That criminal intend which is condition precedent for taking action like this has also not been established which is against the provisions of section 32 of the Act. Further that the requirements as has been provided under section 25 of the Customs Act has totally been ignored. Reliance has been placed on various judgments of this Court which will be discussed at later part of this judgment.

3. Learned Addl. Advocate-General on behalf of department claims that petitioner has rightly been charged and contravention report was prepared for improper compliance of the legal requirements. Petitioner had not given details of the imported items so as to determine the value on the basis of customs computerized data was well as determination of PCT headings. He therefore, urged that no interference should be made through this writ petition.

4. Heard, Record Perused. It appears from the above discussion that the department has directly initiated the proceedings which should have been started at a later stage after determination of criminal intend on the part of the petitioner. Section 32 comes into operation when the circumstances establish that the importer is intentionally concealing the facts of his import and is not bringing on record itemized details for proper appraisement. In this case an offer was made along with import documents that the petitioner being unaware of the complete details is willing for proper appraisement of the goods and is also ready to pay taxes. This offer has been treated as an act of concealing the value of the goods. This is statedly normal practice and the department had been clearing goods on such an offers after applying provisions of section 25 of the Act. Learned counsel for the petitioner has referred two judgments wherein direction is to determine value of goods under section 25(6) of the Act. This Court had directed for proper appraisement of the value of the goods imported for determination of the correct custom duty on the basis thereof as the jurisdiction therein had been exercised unlawfully. Since in this case the situation is obvious, the petitioner requested for normal appraisement in normal circumstance, which has been treated as an attempt to defraud the department, hence the same requires indulgence of this Court.

5. This Court, therefore, relies upon the findings given in Writ Petition No.12024 of 2005 in case titled Messrs Royal Impex v. A.C. Customs and Writ Petition No.13078 of 2006 in case titled Messrs Chiniot Enterprises v. Collector of Customs, wherein it has been directed that the goods of petitioner may be valued under section 25 of the Customs Act, 1969 and should be released after normal appraisement of the value as per law and rules thereof.

6. This petition, therefore, is allowed in the manner that the contravention report against G.D. No.8584, dated 4-12-2007 is set aside and custom authorities are directed to appraise the value under section 25 of the Act.

H.B.T./A-241/LPetition accepted.