COLLECTOR OF CUSTOMS, KARACHI VS MAZHAR-UL-ISLAM
2011 P T D 2577
2011 P T D 2577
[Sindh High Court]
Before Munib Akhtar and Zahid Hamid, JJ
COLLECTOR OF CUSTOMS, KARACHI
Versus
MAZHAR-UL-ISLAM
Special Customs Reference Application No.39 of 2010, decided on 07/01/2011.
(a) Customs Act (IV of 1969)---
----Ss. 32, 32-A, 79, 168(2) & 180---Seizure of goods for' mis-declaration and short payment of tax---Composite notice to importer after 76 days of such seizure for showing cause for short-levy of duty and civil liability of penalty and confiscation of goods---Importer's plea that show cause notice was time barred as same ought to have been issued within two months of such seizure, thus, all subsequent orders passed on its basis were void ab initio---Validity---Two separate consequences would flow from alleged mis-declaration, one of recovery of short or non-levied duty and other of civil and/or criminal liability to which person guilty of offence might be liable---Section 32 of Customs Act, 1969 dealing with such first consequence provided its own period of limitation for issuance of a show-cause notice---Show-cause notice concerning such first consequence issued in present case was within time as fixed under S. 32 of Customs Act, 1969---Section 180 of Customs Act, 1969 related with such second- consequence of civil liability of penalty and/or confiscation imposable by issuing a show cause notice thereunder without providing any time limit therefor--Section 168(2) of Customs Act, 1969 would apply only if goods had been seized under subsection (1) thereof and no show cause notice had been issued within two months of seizure-Impugned show cause notice could not be regarded as time barred in relation to either alleged short levied duty under S. 32 of Customs Act, 1969 or imposition of civil liability of confiscation and penalty under S. 180 thereof.
Mrs. Afroz Shah v. Pakistan and another 2007 PTD 167; Zeb Traders v. Federation of Pakistan and others 2004 PTD 369; ' Muhammad Razi v. Collector of Customs and others 2003 PTD 2821; Khannan Jan and others v. Deputy Collector and others PTCL 1983 CL 184; Khurram Jamal v. Collector of Customs (Appraisement) 2007 PTD 131; Sikandar and Brothers v. Government of Pakistan and another PLD 1986 Kar. 373 and Joint Secretary, Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and another 1991 SCMR 647 rel.
(b) Customs Act (IV of 1969)---
----Ss. 32(1) & 138---Mis-declaration A, of goods and claim of inadvertence/misdirection, determination of---Scope---For a finding of mis-declaration under S. 32(1) of Customs Act, 1969, all elements specified therein must be found to exist---Documents or statements found to be false in any material particular would negate importer's claim of inadvertence or misdirection---Factual inquiry would be required to establish importer's knowledge or belief about goods declaration made by him to be false in any material particular---Principle.
(c) Customs Act (IV of 1969)---
----S. 196---Reference to High Court---Scope---Findings of fact could not be challenged before High Court.
Shakeel Ahmed along with Ilyas Ahsan for Applicants.
Departmental Representative for Applicant.
Zia-ul-Hasan for Respondent.
Date of hearing: 20th October, 2010.
ORDER
MUNIB AKHTAR, J.---This Customs Reference requires determination of the following questions, said to be questions of law arising out of the impugned order dated 22-12-2009, whereby the Tribunal had allowed the respondent's appeal, being Customs 'Appeal No. K-472 of 2009:--
(1)? Whether the Appellate Tribunal erred in law by holding that in a misdeclaration and short payment of revenue, attracting the provisions of sections 32, 32A and 79 of the Customs Act, 1969 the show-cause notice is to be issued within two months?
(2)? Whether the provisions of section 168 of the Customs Act, 1969 have any overriding effect on the provisions of sections 32, 32.A and 79 of the Customs Act, 1969?
(3)? Whether the provisions of section 138 of the Customs Act, 1969 have any overriding effect on the provisions of sections 32, 32A and 79 of the Customs Act, 1969?
(4)? Whether in terms of section 138 of the Customs Act, 1969 the Collector of Customs is duty bound to allow re-export of the goods in the presence of the fact that misdeclaration and evasion of duty/taxes has already been detected and also the applicant has failed to prove the bona fides?
(5)? Whether the findings of the Tribunal are not perverse for non-reading and/or misreading the record available before the Tribunal?
(6)? On 3-9-2010, learned counsel appearing for the parties were put on notice that the appeal would be heard and finally disposed off at the katcha peshi stage. Subsequently, the appeal was heard on 20-10-2010.
2. The facts, briefly stated, are as follows. The respondent imported a consignment of goods from a Korean seller. The goods declaration was filed on or about 30-1-2009, on self-assessment basis, under the computerized system (i.e., PACCS). The consignment comprised of two items. One item was declared under PCT 4810.2200 as light-weight coated paper, while the other was declared under PCT 3208.1090 (clear covercoat). The goods were selected for physical examination\ and the case of the Department is that the goods were actually blank decal paper which, although classifiable under the same PCT headings, was of a higher value. The examination was carried out on 6-2-2009, and a contravention report prepared on 7-2-2009. The goods were not allowed to be released from the container terminal through which the consignment had come in. A show-cause notice was issued to the respondent on 17-4-2009, stating that a misdeclaration had been made in respect of the goods under sections 32 and 32A of the Customs Act, 1969, and asking him to show cause as to why the differential amount of duty may not be recovered from him, and the goods confiscated and penalty imposed.
3. The respondent's case was, in essence, that the subject consignment had been sent by mistake by the Korean seller. The goods therein contained were actually meant for the seller's customer in Russia, to whom the respondent's goods had been sent by mistake. There had, in other words, been an innocent mix-up. The respondent stated that as soon as he realized what had happened, he had approached the seller, and had also applied to the Customs authorities that the goods be allowed to be re-exported under section 138 of the Customs Act. It appears that subsequently, goods matching the description and declaration as had been made in respect of the subject consignment were imported by the respondent and duly cleared on the payment of duty and other charges. However, in relation to subject consignment, the concerned officer did not accept the plea put forward by the respondent. It was noted that the respondent had applied for re-export of the goods under section 138 only on or about 16-2-2009, i.e., after the goods had been examined, the misdeclaration detected and the contravention report prepared. By means of an order-in-original dated 5-7-2009, the respondent was ordered to pay the differential amount of duty. The goods were confiscated, but the respondent was allowed to redeem them on payment of a fine of 50% of the value thereof. A penalty was also imposed on the respondent.
4. Being aggrieved by the aforesaid decision, the respondent preferred an appeal to the Collector (Appeals), which was however dismissed. The respondent took the matter further to the Tribunal, which by means of the impugned order dated 22-12-2009 allowed the appeal, set aside the orders appealed against and directed that the respondent be allowed to re-export the subject consignment. In the impugned order, the Tribunal identified three issues which required determination. These were as follows:
(i)???????? Whether the subject case is a bona fide case of mis-shipment as claimed by the appellant not involving any. contrivance or colourable exercise on the part of the appellant to escape penal action by customs authorities?
(ii)??????? Whether the subject mis-shipment is covered under the provisions of section 138 of the Customs Act, 1969 and Rules made thereunder?
(iii)?????? Whether the show cause notice dated 17-4-2009 issued to the appellant is time barred in terms of subsection (2) of section 168 of the Customs Act, 1969) read with relevant judgments of the superior judicial fora?
All three of the aforesaid issues were decided in favour of the respondent and against the Department. Being aggrieved by the said decision, the Department has filed the present Reference before this Court.
5. Learned counsel for the Department, ably assisted by the learned departmental representative, assailed the impugned order on a number of grounds. He submitted that the Tribunal completely misread the record. According to him, the respondent had made the application seeking re-export of the goods under section 138 only after the misdeclaration had been detected and the contravention report prepared. In fact, according to learned counsel, the application was made as late as 8-4-2009, i.e., when the respondent realized that the show cause notice was about to be issued. Thus, the application was a mere afterthought and had been moved simply to provide what was patently a flimsy excuse and justification for the misdeclaration. Learned counsel submitted that since the goods were being cleared under PACCS on self-assessment basis, the respondent ought to have realized that something was amiss almost immediately after the goods declaration had been filed, since the goods were not being released. If the respondent had been acting in good faith, he would immediately have made the necessary enquiries, both with the customs authorities and with his seller, and moved the application under section 138 expeditiously. The prolonged delay in the making of the application was itself sufficient to cast doubt on the bona fides of the respondent. In any case, the provisions of section 138 could not override the provisions of sections 32 and 32A in terms of which the misdeclaration had been made and detected.
6. Learned counsel further submitted that the learned Tribunal had also, completely misinterpreted section 168. According to him, the said section was inapplicable in the facts and circumstances of the case. In the alternative, even if the said section were applicable, the fact that the show cause notice was issued more than two months after the detection of the misdeclaration and seizure of the goods did not make it barred by limitation and thus invalidate the proceedings that had been initiated against the respondent.
7. In reply, learned counsel for the respondent submitted that the learned Tribunal had correctly appreciated the record and come to the proper decision both on the law and on the facts. He submitted that the goods had clearly been seized under section 168 and that therefore the Tribunal had correctly concluded that the show-cause notice, having been issued more than two months after the date of the seizure, was barred by limitation. He further contended that the respondent's case was fully covered under section 138, in terms of which he was entitled to re-export the goods on account of a genuine and bona fide mistake resulting from the mix-up of the goods by the Korean seller. He submitted that the Reference, being entirely without merit, ought to be dismissed.
8. We have heard learned counsel for the parties, examined the record with their assistance, and considered the case-law relied upon by the learned Tribunal. We first take up question Nos. 1 and 2 referred to us (which correspond to the third issue decided by the Tribunal) since, if the show cause notice was barred by limitation, then clearly that would be the end of the matter and bring all proceedings, against the respondent to an end. In concluding that the show cause notice was time-barred, the Tribunal relied 'on Mrs. Afroz Shah v. Pakistan and another 2007 PTD 167, Zeb Traders v. Federation of Pakistan and others 2004 PTD 369 and Muhammad Razi v. Collector of Customs and others 2003 PTD 2821, three Division Bench decisions of this Court, and Khannan Jan and others v. Deputy Collector and others PTCL 1983 CL 184, a single Bench decision of the Lahore High Court. On the basis of the same, it was concluded that the show cause notice ought to have been issued within two months of the seizure of the goods. The notice was, as noted above, issued on 17-4-2009, and the ' learned Tribunal held that it was issued after 76 days. The Tribunal held as follows in para 14 of the impugned order:-
"The intention of the legislature appears to be that the period of seizure should not be prolonged and delayed, and the Customs authorities have been bound to issue a show-cause notice for confiscation of goods in question within stipulated period of 02 months. It has been held by the, Superior Courts that where a formal seizure is not affected the date of filing of Bill of Entry will be treated for computing the 02 months' period prescribed for issuance of the show cause notice in section 168 of the Customs Act, 1969. In this case the show-cause notice was not issued within a period of 60 days, therefore, not only the show cause notice is time barred but as a result of this illegality all subsequent proceedings have become void ab initio."
9. Section 168 of the Customs Act, insofar as is presently relevant, provides as follows:--
"168. Seizure of things liable to confiscation.---(1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer:
(2) Where any goods are seized under subsection (1) and no show cause notice in respect thereof is given under section 180 within two - months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized:
Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months:
Provided further that the limitation prescribed under sub-section (2) shall not apply to goods specified under the first proviso to section 181."
Section 2(rr) defines the word "seize" as follows:--
'seize' means to take into custody, physically or otherwise, goods in respect of which some offence has been committed or is believed to have been committed under this Act or the rules, and all cognate words and expressions shall be construed accordingly."
10. When an alleged misdeclaration is made under subsection (1) of section 32, or subsection (1) of section 32A, two consequences can follow. Firstly, and most importantly, if there has been any short or non-levy of duty, a show-cause notice can be issued under subsection (2) of section 32. (The provisions of section 32A are, in all material respects, identical with section 32, and reference will therefore be made only to section 32. All observations will apply equally in- relation to section 32A.) The second consequence of a misdeclaration is that it is also an offence. Section 156 deals with offences and penalties, and clause (14) relates to an offence under section 32 (clause (14A) applies to section 32A). This provides that the person guilty of the offence shall be liable to penalty, the goods shall be liable to confiscation, and on conviction by the Special Judge, the guilty person can be sentenced to imprisonment for the period therein specified. Thus, the offence of misdeclaration, if established, can result in both a civil liability (penalty and confiscation of goods) and a criminal liability (imprisonment). The civil liability can be adjudicated upon, and imposed by, an appropriate officer of Customs after issuance of a show-cause notice under section 180 and complying with the terms thereof.
11. If the goods are liable to confiscation, then they may also be seized under section 168. However, subsection (2) provides that if the show cause notice under section 180 is not issued within two months of the seizure, or within the extended period as stipulated in the first proviso, then the seized goods must be returned. It is now settled law that this is a mandatory requirement, and any continued holding of the goods beyond the stipulated period is completely unlawful. This has been so held, inter alia, in the decisions relied upon by the learned Tribunal and noted in pars 8 supra. Since subsection (2) of section 168 applies only if the goods have been seized under subsection (1) and no show cause notice has been issued within the stipulated period, it is important to understand the proper meaning of "seizure" since that will determine whether the two month period has been breached or not. In Muhammad Razi's case (supra) this Court explained the meaning of "seize" as follows:
"A careful consideration of section 168(1) and section 2(rr) leads to the conclusion that the word 'possession' is not confined to the physical possession and is inclusive of constructive possession .as well. We are further of the considered opinion that the seizure of goods cannot be confined to the cases where an order in writing in this behalf is made but is inclusive of notional seizure as well, meaning thereby, that if the Customs official has not passed any specific order in writing about the seizure of goods but has verbally given instructions or by his conduct has made the release for removal of goods under restraint thereby depriving to the owner of the goods of exercising all the incidents of the right and title and interest in the goods, it would also amount to seizure of goods within contemplation of section 168(2) of the Customs Act."
This decision was also applied in Zeb Traders' case (supra), and in both cases it was held that even a mere blockade of goods was tantamount to seizure. Now in the present case, the goods were to be cleared under the PACCS system from the container terminal at which they were imported. Chapter XXT of the Customs Rules, 2001 deals with matters relating to goods being cleared under PACCS. Rule 556(c)(ii) expressly provides that .the terminal operator "shall not permit entry or exit of any goods, from or to the terminal unless so authorized electronically by PACCS". Quite obviously, once the goods had been examined and the respondent found (according to the customs authorities) to be liable for misdeclaration, no order was going to be made for, their release. Applying the criteria laid down in Muhammad Razi's case (supra) we have no doubt that the goods had been seized within the meaning of section 168 at the latest on 7-2-2009. It may be I noted that this date is expressly stated in the show-cause notice itself as the date of the "detection" (i.e., the "detection" of the alleged misdeclaration). It follows that the show-cause notice had to be issued at the latest by 7-4-2009, i.e., within two months of the seizure, failing which they were liable to be returned/released. (It should be kept in mind that section 168(2) stipulates "two months", and not "sixty days" for the issuance of the show cause notice.) No extension of time was sought as stipulated by the first proviso. Since the show-cause notice was issued on 17-4-2009, it was clearly issued beyond the two-month period stipulated by subsection (2).
12. The crucial question for present purposes is, what consequences flowed from the fact that the show-cause notice was beyond the two-month period? The Tribunal has concluded that the notice was illegal and all proceedings thereunder were void ab initio. We must disagree. As noted above, two separate consequences flow from an alleged misdeclaration. One is the recovery of any short or non-levied duty, and the other is the civil and/or criminal liability 'to which the person guilty of the offence may be liable. Insofar as the first consequence is concerned, it is dealt with in terms of section 32. That section provides for its own period of limitation for the issuance of a show-cause notice. It has nothing to do with the civil liability of penalty and/or confiscation that can be imposed by issuing a show-cause notice under section 180. The show-cause notice in the present case was a composite notice. It asked the respondent to show cause both why the duty allegedly short levied (the first consequence, to which section 32 was applicable) may not be recovered, and also to show cause why the civil liability of penalty and confiscation (the second consequence, to which section 180 was applicable) may not be imposed. Insofar as the first consequence is concerned, the show-cause notice was clearly within the time as stipulated in section 32. It could not therefore, to this extent, be declared as being barred by limitation.
13. Insofar as the second consequence is concerned, the effect of the non-issuance of a show-cause notice within the period stipulated by section 168(Z was clearly explained by a Division Bench decision of this Court in Khurram Jamal v. Collector of Customs (Appraisement) 2007 PTD 131 as follows:--
"...the sole effect of non-issuance of notice under section 180 within a period of two months from the date of seizure is that the person from whose possession the goods are seized becomes entitled to the return of goods. It has no further effect. If the notice is not served within the period of two months it will not vitiate or invalidate the entire proceedings. The civil and criminal liability shall not be washed away only on account of non-service of notice under section 180 within the period specified under subsection (2) of section 168."
The last question that remains to be considered is whether, as the learned Tribunal has concluded, a notice issued under section 180 beyond the period stipulated in section 168(2) becomes time barred. The Lahore High Court, in the Khannan Jan case (supra) appears to have reached this conclusion. However, a Division Bench of this Court came to a contrary conclusion in Sikandar and Brothers v. Government of Pakistan and another PLD 1986 Kar. 373. The relevant facts were as follows. The petitioner imported goods for which the bill of entry was filed on 31-1-1985. The goods were examined and seized on or about the same day, and a criminal case registered against the petitioners for an alleged misdeclaration on 6-3-1985. On 8-4-1985, a show-cause notice was also issued. It was, inter alia, contended by the petitioner that the show cause notice, having been issued after the period of two months stipulated in section 168(2), was barred by limitation' It was held by this Court as follows:-
"??the failure on the part of the Custom Officers to issue notice within the period contemplated by subsection (2) or proviso thereto, of section 163, would certainly clothe the person, from whom the goods have been seized with the right to claim the return of the same but it does not, in our opinion, set at naught the provision of section 180 and will not deprive the customs' officers to issue notice and section 180, the obvious reason that it (section 180) does not prescribe any time limit for issuance of such notice. All that it provides is that no order under the said Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person unless the owner of the goods, if any, or such person is informed in writing under clause (a) is given an opportunity of making a representation under clause (b) and is given a reasonable opportunity of hearing under clause (c). There is nothing in the said section from which an inference can possibly be draw that the said notice 'contemplated by clause (a) of section 180 is subject to the provision contained in section 168 of the said Act. As such, it would not, in our opinion, be proper to import the limitation of two months prescribed by subsection (2) of section 168 (which can be extended for a further period not exceeding two months, vide proviso to the said subsection (2)) into the provision of section 180 of the said Act. Clearly, section 180 does not prescribe any time limit for issuing the show-cause notice and we do not think that it is permissible to go into the intention of the Legislature for not making provision for such a time limit in it. Therefore, it would not be legitimate to curtail the extent and scope of section 180 of the said Act, which, as indicated above, does not contain any time limit for issuance of show-cause notice by saying that in view of the provisions of subsection (2) of section 168, the said notice must be issued within sixty days of the seizure of the goods or within the duly extended period of not more than sixty days thereafter. In that view of the matter, it cannot be maintained that a notice, as required under clause (a) of section 180 of the said Act is illegal, simply because it had not been issued within sixty days or the extended period contemplated by subsection (2) of section 168 of the said Act." (emphasis supplied)
The foregoing decision was expressly approved and applied by the Supreme Court in Joint Secretary, Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and another 1991 SCMR 647. We would in any ease be bound by the Division Bench decision in the Sikandar and Brothers case (supra). The subsequent affirmation of this decision by the Supreme Court (which is, of course, also binding on us) would seem further to indicate that the contrary view expressed by the Lahore High Court in the Khannan Jan case (supra) can no longer, with respect, be regarded as good law to this extent.
14. In view of the foregoing, we are of the view that the show cause notice in the present ease could not be regarded as time barred on any view of the matter, whether in relation to the allegedly short-levied duty (i.e., in relation to section 32) or the imposition of the civil liability of confiscation and penalty (i.e., in relation to section 180), Question No. 1 must therefore be answered in the affirmative and question No. 2 in the negative, i.e., both questions must be answered in favour of the Department and against the respondent.
15. We turn now to consider the remaining three questions, which correspond to the first and second issues decided by the Tribunal. These questions can be conveniently taken up together. Section 138, as presently relevant, provides as follows:-
138. Frustrated cargo how dealt with.---(1) Where any goods are brought into a customs-station by reason of inadvertence, misdirection or untraceability of the consignee, an officer of Customs not below the rank of Additional Collector of Customs may, on application by the person-in-charge of the conveyance which brought such goods or of the consignor of such goods and subject to allow export of such goods without payment of any duties (whether of import or export) chargeable thereon, provided that such goods have remained and are exported under the custody of an officer of customs.
The learned Tribunal, after a detailed consideration of the record, concluded that the plea raised by the respondent of the mix-up of shipments (referred to above) was not an afterthought but a genuine and legitimate reason. The Tribunal also concluded that the facts and circumstances of the case came within the scope of section 138.
16. It will be seen that section 138 is applicable if goods are brought into a customs-station under any one of three conditions: (i) inadvertence, (ii) misdirection, or (iii) the consignee being untraceable. Inadvertence is of course, a term well understood in the law, especially in relation to fiscal statutes. It is, e.g., used in subsection (3) of section 32 itself. Misdirection means, inter alia, being misdirected, and to misdirect means, inter alia, to send to the wrong place. If therefore, the respondent's plea was correct, and there was mix-up by the Korean seller, with the respondent's goods being sent to the Russian customer and vice versa, it would clearly be a case of either inadvertence and/or misdirection within the meaning of section 138. The question raised by the Department however, is whether there can be any inadvertence or misdirection if there has been a misdeclaration. In other words, can section 138 apply to a situation where the facts and circumstances of the case come within the scope of section 32(1)? The answer to this question must, in our view, be in the negative. It is important to keep in mind that all the elements specified in section 32(1) must be found to exist before there' can be a finding of misdeclaration under that provision. Now section 32(1) applies only if, inter alia, a person submits a document or makes a statement "knowing or having reason to believe" that the, said p document or statement is "false in any material particular". Quite obviously, if this is established, it would in most circumstances (though not in all) negative any claim of inadvertence or misdirection. If a person knows or has reason to believe that he is making a false statement in respect of any imported goods, he can hardly claim at the same time that the said goods were imported inadvertently or were misdirected to Pakistan.
17. The key question therefore is whether in the facts and circumstances of the present case, the respondent knew, or had had reason to believe that the goods declaration being made by him was false in any material particular with reference to the subject consignment. The Department would answer this question in the affirmative. As is obvious, the answer to such a question is not normally a pure question of law. It invariably involves a factual inquiry, i.e., an examination of the relevant record to establish whether the person (here the respondent) knew or had reason to believe, or could reasonably be regarded as knowing or having reason to believe, that the goods declaration was false in any material particular. As noted above, the Tribunal carried out a detailed examination of the record, and elaborately recorded its findings in paragraphs 10 and 11 of the impugned order. The Department has, by means of question No.5 of the Reference, challenged those findings as perverse, on account of being a misreading or non-reading of the record. After a careful consideration, we cannot accept that there has been a misreading or non-reading of the record. The Tribunal has carefully considered the entire record in detail. It has exhaustively examined all of the factual aspects of the case. It has taken into account the fact the respondent's actual consignment subsequently did arrive in Pakistan, and was cleared on exactly the same description and declaration as had earlier been made by him. Nothing has been shown as to why or how the Tribunal's findings were perverse. It follows that those findings must be regarded as correct and true. Since findings of fact cannot be challenged before us, the only conclusion that can be drawn is that the respondent did 'not know or have reason to believe, nor could reasonably be regarded as so knowing or believing, that the goods declaration filed by him was false in any material particular in relation to the subject consignment. There was, in other words, no misdeclaration. Since there was no misdeclaration, the only question that remains is whether section 138 was applicable. As already noted, in the facts and circumstances of the case, the goods had clearly been sent to Pakistan inadvertently and/or misdirected to this country instead of the Russian customer, with the respondent's goods being sent to the former. The shipment was therefore frustrated cargo, which was entitled to be re-exported without payment of any duty or other applicable charges.
18. In our view, questions Nos. 3 and 4 need to be reframed in order to bring out more clearly the substance of the issues that have been raised before us, and discussed in the paras herein above. We would therefore reframe these questions as follows:
(3) Whether the provisions of section 138 of the Customs Act, 1969 have any application if there is a clear and undisputed finding of misdeclaration in terms of either section 32(1) or section 32A(1)?
???????????
(4) Whether in the facts and circumstances of the present case, the Tribunal was correct in concluding that there had been no misdeclaration which disentitled the respondent from re-exporting the goods under section 138 of the Customs Act, 1969?
In our view, in the light of the above discussion, question No. 3 is to be answered in the negative, against the respondent and in favour of the Department. However, question No. 4 is to be answered in the affirmative, in favour of the respondent and against the Department.
19. Our answers to the questions referred to us, considered and examined in detail in the paras supra, may be summarized as follows:--
(1)?? Question No. 1. In the affirmative, in favour of the Department and against the respondent.
(2)?? Question No.2. In the negative, in favour of the Department and against the respondent.
(3)?? Question No.3 "(as reframed): in the negative, in favour of the department and against the respondent.
(4)?? Question No.4 (as reframed): In the affirmative, in favour of the respondent and against the Department.
(5)?? Question No.5: In the negative, in favour of the respondent and against the Department.
In view of our answers to Questions Nos. 4 and 5, this Customs Reference must in the end be decided against the Department and in favour of the respondent. Accordingly, the Customs Reference is hereby dismissed.
S.A.K./C-15/K??????????????????????????????????????????????????????????????????????????????????? Reference dismissed.