YAZDANI ENGINEERING INDUSTRY VS APPELLATE TRIBUNAL, 2009 PTD-KARACHI-HIGH-COURT-SINDH 2213 (2005)

Customs Act (IV of 1969)---

----Ss.45(2) & 196---Permission to correct error in import manifest---Appeal to High Court---Name of the appellant was shown in the invoices bill of lading and import permit, however, in the manifest prepared by shipping agent, name other than the appellant was written---On discovery of that mistake, appellant instructed the shipping agent to submit application under S.45(2) of Customs Act, 1969 seeking amendment---Request for amendment was not allowed and the Appellate Tribunal also upheld the refusal of amendment---Appellant had filed appeal to High Court---Validity---In all import documents name of the, appellant was written---Insertion of name of the company other than the appellant was a result of mistake, which fell within the purview of S.45(2) of Customs Act, 1969---Appellate Tribunal was not justified to refuse to allow amendment sought for by the appellant---Appeal was disposed of, copy of the judgment of High Court was sent to the Appellate Tribunal which would modify its order in accordance with the finding of the High Court.

Aiva International v. Assistant Collector of Customs 2004 PTD 997 ref.

Ch. Muhammad Iqbal for the Appellant.

Ahmed Khan Bugti for the Respondents.

ORDER

MUJEEBULLAH SIDDIQUI, J.---This appeal was admitted to consider the following question of law arising out of Order of Customs Excise and Sales Tax Appellate Tribunal, dated 7-7-2004 in Customs Appeal No.K-524 of 2003:--

"Whether in the facts and circumstances of this case the learned Member of the Tribunal erred by not allowing the amendment in IGM in terms of section 45(2) of the Customs Act?"

The facts as alleged by the appellant are that it imported dumping trucks without body in SKD condition. The name of the appellant was shown in the invoices, bill of lading and import permit. However, in the manifest prepared by shipping agent the name of Messrs Burki Trading Company, F-17, Al-Asif Square, Sohrab Goth, Karachi, was written instead of appellant Messrs Yazdani Engineering Industry, Plot No.13-26, Sector C-IV, Karachi Export Processing Zone; Karachi. On discovery of this mistake the appellant instructed the shipping agent to submit application under section 45(2) of the Customs Act seeking amendment. It was prayed that instead of Burki Trading Company, name of the appellant Messrs Yazdani Engineering Industry be allowed to be inserted in the manifest. The request for amendment was not allowed and ultimately the learned Tribunal also upheld the refusal of amendment.

We have heard Mr. Ch. Muhammad Iqbal, learned counsel for the appellant, and Mr. Ahmed Khan Bugti, learned counsel for respondent No.2.

Mr. Ch. Muhammad Iqbal, learned counsel for the appellant has submitted that admittedly name of appellant is shown in the invoice, bill of lading and import permit. By a mistake which is apparent on the face of it, name of consignee was shown in the manifest by the shipping agent as Burki Trading Company instead of appellant Messrs Yazdani Engineering Industry and therefore, the departmental officers ought to have allowed the amendment. He has submitted that the point in issue already stands decided by a Division Bench of this Court in the case of Avia International v. Assistant Collector of Customs 2004 PTD 997 he has submitted that in the cited judgment, authored by one of us (Mujibullah Siddiqui, J.), the scope and parameters of the provision contained in section .45(2) of the Customs Act, 1969 have been considered in depth and it has been held that the ownership of the goods was not dependent on the entry in import manifest, but on the other import documents. He has further been held that if all the import documents were in favour of a person while the name of the consignee was shown to be different in the IGM, it would not be a case of change of ownership but would be a case of error/mistake, albeit subject to the surrounding circumstances in each case, which were to be examined' objectively and not on extraneous considerations. It was further held that where an amendment was sought to the effect that the name of the consignee be substituted and thereafter the assessment proceedings be completed in respect of the consignment in accordance with the law, the departmental officers were required to consider the request objectively and the' refusal of collector of Customs without examination of necessary facts was misdirected and amounted to wrong exercise of jurisdiction, not warranted by law.

Mr. Ch. Muhammad Iqbal has submitted that in view of the ratio of the above-cited judgment the learned Members of the Tribunal have committed error in upholding the view held by the departmental officers and refusing the amendment sought by the appellant.

On the other hand, Mr. Ahmed Khan Bugti has supported the impugned findings of the Tribunal, contending that it is not a mistake or obvious error, but it was a deliberate act and, therefore, the Tribunal was justified in refusing to accede to the request of amendment in the name of consignee. However, he is not able to show that any factual inquiry was, held by the Collector of Customs Import Section (Appraisement) or by any subordinate customs officer for arriving at the conclusion that it was not a mistake on the part of shipping agent, but was a deliberate act with the mala fide intention.

We have carefully considered the contentions raised by the learned counsel for the parties and have perused the material available on record. We are persuaded to agree- with the submission of Mr. Ch. Ghulam Muhammad Iqbal that in the wake of all the import documents is the name of appellant, the insertion of the name of Burki Trading Company in the manifest is a result of obvious mistake, which falls within the purview. of section 45(2) of Customs Act. For the detailed reasons already recorded in the judgment cited above, question of law is answered in affirmative. It is held that the learned Tribunal was in error by refusing to allow the amendment. The appeal stands disposed of accordingly. A copy of this judgment be sent to the Tribunal who shall modify its order in accordance with the findings in this judgment.

H.B.T./Y-9/KAppeal allowed.