GENUINE IMPORT IMPEX through Proprietor VS DEPUTY COLLECTOR CUSTOMS, (APPRAISEMENT GROUP-III), LAHORE, 2009 PTD-LAHORE-HIGH-COURT-LAHORE 263 (2008)

Customs Act (IV of 1969)---

----Ss. 25, 25A & 25-I---Constitution of Pakistan (1973), Art.199---Constitutional petition---Determination of customs value of goods---Third reappraisal of goods by customs department and following a valuation ruling which was set aside by High Court---High Court recorded its displeasure and made observations on the issue and cancelled the appraisement order on the basis of valuation ruling with remarks that department was allowed to reappraise the same in strict compliance of law and procedure provided in S.25, Customs Act, 1969.

Mian Abdul Ghaffar and Malik Muhammad Arshad for Petitioner.

Ehsan Ullah Cheema for Respondents.

ORDER

KHAWAJA FAROOQ SAEED, J.---Brief facts leading institution of the present writ petition are that petitioner is engaged in the business of import of Hardware goods. He imported a consignment of Steel Files of different sizes from Indonesia on the basis of pro forma invoice, dated 28-10-2007. On arrival of the consignment at Dry Port, Lahore, petitioner filed G.D. (goods declaration) on 29-1-2008 claiming assessment on the basis of transaction value in terms of section 25(1) of the Customs Act, 1969. The respondents after examination of the goods sent the samples to Pakistan Standards and Quality Control Authority (PSQCA Laboratory) on 3-3-2008. The samples on analysis by the said laboratory were reported to be Cutting Tool Steel (High Carbon) on the basis of which the goods were assessed value thereof was enhanced to U.S$ 18831.00 against the declared value of U.S$ 9048.50 and assessment was finalized on 26-3-2008 by respondents Nos. 1 and 2.

2. However, the consignment was not released and under the garb of a market inquiry the same was re-assessed on 28-3-2008 at U.S$ 44,597.00. The petitioner un-willingly accepted the new assessed value but the consignment was again not released. It was re-appraised for the third time on the basis of certain evidence which statedly have no relevance to the goods imported by the petitioner. The value now fixed is U.S$ 1,38,123.00. The petitioner objected to the same and made a request for provisional release of the goods on the basis of second assessment and subject to furnishing of post dated cheque covering the differential between second and third value of assessment. The same was allowed.

3. The legal Advisor of the Department has filed preliminary objections, which inter alia says:--

(a) That the petitioner has not come with clean hands before this Court.

(b) That the declared value of the goods imported is less than in put.

(c) That the valuation is a mixed question of law and facts, hence writ petition is not maintainable.

(d) That the declared value being very low the provisions of subsection (8) (computed value) of section 25 is invoked.

(e) That the entire import trade is involved in group under invoicing for which forged, fabricated and concocted import invoices are submitted besides, foreign exchange remittances of the C&F price of the goods are not indicated.

(f) That the petitioner has a right to file review petition before the competent authority under section 25-D, besides, he is not waiting to avail the other legal remedy in terms of appeal under section 193 of the Customs Act, 1969. Finally the prayer which has subsequently, been supported with the arguments remains that the valuation is a mixed question of law. For the reason of massive mis-declarations the department may be allowed to adjudicate the matter under whatever law becomes applicable.

3. The petitioner counsel brought the attention of this Court to paras.6 and 7 wherein the department has admitted the contents of para.7 of the petitioner's writ petition. The relevant para. 7 is follows:--

"para.7. That the contents of para.7, as narrated, are admitted to the extent that assessment referred to under para.6 above was superseded on the basis of Valuation Ruling, dated 4-7-2007 US$ 224,263.60 (C&$ 8.80 per Kg.) instead declared invoice price, which has been set aside by this Honourable Court vide judgment Order, dated 23-5-2008 passed in W.P. No.2415 of 2007."

4. This Court readily agrees that the valuation ruling, dated 4-7-2007 having been set aside by this Court, there is no reason for 3rd re-appraisal of the value of the consignment. Three consecutive separate appraisements speak of the incompetency or something otherwise on the part of the department. It has never been a secret that there is an unfortunate trend of under-invoicing and the present development in laws is to control and find methods of curbing it. The customs authorities are not applying the said methods as the same involves effort and exercise. They are continuing with their old methods of determining the value which were more based upon the estimates and are mostly of subjective nature. Section 25 and subsequently, 25-A were introduced to bring out improvement but however, since the same have not been complied with in strict sense, the desired results could not be achieved. It is true that the acceptance by the petitioner of the two separate appraisements creates doubt about his conduct but, however, the departmental officer if allowed to take the advantage of their inefficiency they shall play havoc with the assessment process. After having second appraisement resorting to the 3rd on the basis of a valuation ruling, which has already been set aside by this Court, amounts-to disrespect for the direction of the higher forums. I leave this for the departmental hierarchy to look into this aspect for the time being, so as to how, consignment has continuously been re-appraised. However, this Court records it displeasure for following a valuation ruling which has been set aside by this Court.

5. Coming to the main issue, the department itself while sub mitting comments before this Court in its prayer part have made the same request which the petitioner has requested. The same reads as follows:--

"This Honourable Court may permit the department to adjudicate the matter under whatever law becomes applicable on the admitted or proved facts, law has to be given effect whether or not it has been relied upon by a party in order to meet the ends of justice, hence, this petition merits to be disposed of as unsubstantiated by the petitioner."

This Court, therefore, agree with the petitioner and cancel the appraisement order on the basis of valuation ruling, dated 4-7-2007. However, the department is allowed to re-appraise the same in strict compliance of law and procedure provided is section 25 as per its own request.

6. This obviously means disposal of the writ petition in the manner and to the extent mentioned hereinabove.

M.B.A./G-50/LOrder accordingly.