COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE OF APPRAISEMENT, KARACHI VS SUPERIOR STEEL, KARACHI
2009 P T D 1239
[Karachi High Court]
Before Muhammad Athar Saeed and Salman Ansari, JJ
COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE OF APPRAISEMENT, KARACHI
Versus
Messrs SUPERIOR STEEL, KARACHI
Special Customs Reference Application No.85 of 2008, decided on 01/04/2009.
Customs Act (IV of 1969)---
----Ss. 32(1), 79(1) & 194-C(3)---Imported goods declared to be of China origin assessed as of Holland origin by Member Technical Appellate Tribunal, sitting singly---Validity---Nothing on record to show that certificate of origin provided by importer was not reliable---Determination of origin of goods to be of Holland on basis of physical inspection was not substantiated with factual evidence---Member Technical of the Tribunal had no jurisdiction to decide such matter---High Court remanded case to Tribunal to decide such matter afresh while observing that if the Tribunal wanted to depart from decision taken by Member Technical, then it would have to give cogent reasons in support of its decisions.
2009 PTD 266; Messrs Zarghoon Zarai Corporation v. Collector of Customs and another in 2006 PTD 534; Collector of Customs, Karachi v. Messrs Ali Enterprises, Karachi 2006 PTD 651; Collector of Customs, Multan v. Muhammad Tasleem 2002 MLD 296 and Messrs Taqiur Rehman, Faisalabad v. Deputy Collector Customs (Import), Dry Port, Faisalabad 2003 PTD 456 ref.
Raja Muhammad Iqbal for Applicant.
Junaid Ghaffar for Respondent.
ORDER
By this Reference Application filed against the order of the Tribunal, dated 14-1-2008 in Customs Appeal No.440 of 2003 the following questions said to be arising out of that order, have been proposed for the opinion of this Court:
(1) Whether in terms of second proviso to subsection (3) of section 194-C of the Customs Act, 1969, a case which involves an important question of law about correct application of the provisions of section 32 and section 156(1) of the Customs Act, 1969, in a case of admitted misdeclaration of origin, can be heard and decided by a single Member (Technical) of the Tribunal?
(2) Whether the Tribunal erred in law by not considering that the entry/declaration made under pre-amended section 79(1) and section 32(1) of the Customs Act, 1969, as a definite declaration?
(3) Whether the Tribunal erred in law in failing to appreciate that under section 32(1) of the Customs Act, 1969, and S.R.O. 374(I)/2002, dated 15-6-2002, the goods found other than the declared origin, i.e. of European origin instead of declared China origin, can be termed as a misdeclaration within the cleaning of section 32(1)?
(4) Whether a document presented before the Customs under section 32(1) and section 79(1) of the Customs Act, 1969, cannot be questioned for its falsity and untrue material particulars?
(5) Whether any invoice, bill of lading, packing list etc., whose particulars are not corresponding with the actually imported goods can be termed as an authentic document?
(6) Whether in the presence of mens rea of evasion and deliberate misdeclaration, attracting the provisions of section 32, is it mandatory for the customs/appellants to accept the contents of an invoice and B/L, in toto, in terms of section 3 of the Commercial Documents Evidence Act, 1939?
(7) Whether the Tribunal erred in law by not considering the proposition of law that in a case of misdeclaration, the provisions of section 32 of the Customs Act, 1969, and allied laws have an overriding effect the provisions of section 3 of the Commercial Documents Evidence Act, 1939?
(8) Whether the Tribunal erred in law in failing to appreciate that in the customs parlance for the confirmation of origin of the goods a "certificate of origin" of true particular, instead of port of shipment, is an authentic document, unless contrary is proved, for the customs assessment purposes?
(9) Whether the Tribunal erred in law in failing to appreciate that the respondent importer sought the assessment/clearance at declared value of US$ 3924.00, declaring the goods as of Chinese origin, whereas the goods were admittedly assessed at US$ 25705.75, as of European origin, resulted into extra collection of revenue to the tune of Rs.13,29,831 cannot be termed as an attempted revenue loss/evasion?
(10) Whether the Tribunal can decide an appeal beyond the maximum period of 150 days provided under subsection (1) of section 194-B of the customs Act, 1969?
(11) Whether the findings of the Tribunal are not perverse for non-reading and/or misreading the record available before the Tribunal'?
At the very outset, Mr. Raja Muhammad Iqbal the learned counsel for the applicant submitted that since this Court has already held that Member Technical sitting singly does not have the power to adjudicate on a matter involving a question of law, therefore, he will only argue question No.1 and, according to him, since the adjudication by the learned Technical Member is a matter involving a question of law, therefore, in accordance with order of this Court reported as 2009 PTD 266 this case should be remanded back to the Tribunal to be fixed before an appropriate Bench.
Mr. Junaid Ghaffar learned counsel for the respondent refuted the allegations of Mr. Raja Muhammad Iqbal and argued that the Tribunal has decided the matter on the factual position of the case and has simply interpreted the law to arrive at a decision on facts and on such adjudication after arriving at the conclusion that the goods were Chain origin and that no evasion of tax had taken place, had allowed the appeal of the respondents.
Mr. Raja Muhammad Iqbal read out the impugned order and after perusal of the that order we realized why the anxiety of Mr. Raja Mohammad Iqbal is only to press question No.2 and not the other questions as in our considered view, none of the other questions Proposed by him arise from the above order.
In support of his contention that the Tribunal has adjudicated only factual position and the matter only involved factual controversy Mr. Junaid Ghaffar took us through the provisions of the Commercial Documents Evidence Act, 1939 and also produced before us the original bill of lading which was sent from China to Dubai and the bill of lading for goods sent form Dubai to Pakistan. He also relied on the judgments of the honourable Supreme Court in the case of Messrs Zarghoon Zarai Corporation v. Collector of Customs and another reported in 2006 PTD 534 and the judgment of learned Single Bench of this Court in the case of Collector of Customs, Karachi v. Messrs Ali Enterprises, Karachi (2006 PTD 651). From a perusal of the above judgments we have seen that it has been held by the Honourable Supreme Court that the question of origin of the goods is a question of fact which cannot be adjudicated by a High Court in its advisory jurisdiction.
Mr. Raja Muhammad Iqbal has relied on S.R.O. 2(13)/71 Gazette and also on the judgments of the Lahore High Court reported in Collector of Customs, Multan v. Muhammad Tasleem (MLD 2002 296) and Messrs Taqiur Rehman, Faisalabad v. Deputy Collector Customs (Import), Dry Port, Faisalabad 2003 PTD 456.
We have examined the case in the light of the arguments. We tend to agree with the learned counsel for the respondent that on the factual position of the case the present applicants have not brought any thing on record to prove that the certificate of origin provided by the present respondent cannot he relied on and only on the alleged physical inspection of goods they reached the conclusion that the goods belonged to Holland but this conclusion is also not substantiated with any factual evidence. However, we feel that some legal clement was involved in the matter and therefore, in accordance with our judgment referred to above. The learned Member Technical did not have the jurisdiction to adjudicate on it. We will, therefore, remand the matter back to the Tribunal to place the same before an appropriate Bench and for arriving at a fresh decision after giving the parties an opportunity or being heard. We will, however, direct the Tribunal that if they want to depart from the decision taken by the learned Member Technical, which, in our opinion, is based on sound reasons, they will have to give cogent reasons in support of their decision.
S.A.K./C-14/KCase remanded.