MAXI INC. VS FEDERATION OF PAKISTAN, 2011 PTD-LAHORE-HIGH-COURT-LAHORE 1117 (2010)

Customs Act (IV of 1969)---

----Ss. 19-A, 25, 25-A, 25-D & 194-A(1)(e)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Determination of customs value of imported goods---Impugned valuation advice, having been affirmed in review by Director General Valuation, petitioner had filed constitutional petition---Validity---Right of appeal was provided to the petitioner under S.194-A(1)(e) of Customs Act, 1969---On the claimed date of knowledge/receipt of impugned order an alternate remedy of appeal was available to the petitioner and impugned order was within the limitation period for availing said remedy---Petition having failed to avail said alternate remedy of appeal, constitutional petition was not maintainable---Contention of counsellor the petitioner that provisions of S.19-A of Customs Act, 1969, were outside the purview of the scrutiny that could be undertaken by Director General in exercise of his review jurisdiction under S.25-D of the Customs Act, 1969 was repelled as said point about S. 19-A Customs Act, 1969 was neither the sole nor the operative ground of, impugned order---Objection regarding the type and level of market inquiry and the types of imported goods that were allegedly subject to a valuation advice, were not made out from the terms of the relevant statutory provisions in S.25 of the Customs Act, 1969---Valuation advice must be based on the price/value of similar goods in the market and indeed the wholesale price of imported goods, was closer to their import value, rather than their retail price in the market---Valuation advice was not confined to one import, but to contemporaneous import which could not be issued for each import that was made---Constitutional petition was dismissed.

Mian Abdul Ghaffar for Petitioner.

Sultan Mehmood for Customs Department.

Majid Anwar, Advocate for respondents Nos.4, 5 and 6.

ORDER

UMAR ATA BANDIAL, J.---The goods of the petitioner company imported vide GD No.2646 dated 12-12-2008 were assessed to duty and taxes on the basis of valuation advice dated 18-10-2008. The petitioner challenged that valuation before this Court in Writ Petition No.18083 of 2008 which was disposed of vide order dated 22-12-2008 directing departmental, determination of petitioner's objection. Pursuant to the Court's said order the respondent No.2 Director General Valuation has thereafter held review proceedings in the matter and delivered an order dated 29-5-2009 which is challenged in this petition that was filed on 9-7-2010.

2. The learned counsel for the petitioner submits that the impugned order was first received by the petitioner under cover of letter dated 22-6-2010 attached at page 80 of the file. Consequently, submits that this petition is filed tineously and the allegation of laches cannot be raised against the petitioner.

3. The learned counsel for the respondent valuation authorities has at the outset objected that if 22-6-2010 is to be taken as the date of knowledge of the impugned order passed on 29-5-2009 then section 194-A(1)(e) of the Customs Act, 1069 provides a right of appeal to petitioner which has not been exhausted before filing this petition. Consequently, this petition is opposed as being barred by an-available alternate remedy.

4. On the merits of the case the learned counsel for the petitioner has referred to one of the grounds in the impugned order for refusing relief. The impugned valuation advice dated 18-10-2008 is affirmed because the petitioner is alleged to have recovered the disputed amount of duties and taxes from its consumers and therefore was no entitlement to relief on account of section 19(A) of the Customs Act, 1969. Consequently, review of the valuation advice was declined. Submits that the provisions of section 19(A) ibid are outside the purview of the scrutiny that can be undertaken by respondent No.2 in exercise of his review jurisdiction under section 25(D) of the Customs Act, 1969. Further contends that the impugned order by respondent No.2 justifies the valuation advice on the basis of market information collected by departmental authorities. On the other, hand; in the present, case the impugned valuation is not based on the retail pricing of the imported goods but on the price paid by the first wholesaler purchasing similar goods. Consequently, the test adopted is illegal. Also that the petitioner was not associated in any inquiry proceedings. He has lastly argued that a valuation advice may in any event be issued in respect of the imported goods but not for goods subject to import as in the present case.

5. The objection to maintainability of this petition on the ground of an alternate remedy being available has force. On the claimed date of knowledge/receipt of the impugned order the petitioner was within the limitation period for availing remedy that was provided through the Finance Act, 2010. Consequently, the petition is liable to be dismissed for being not maintainable for failure to exhaust alternate remedy.

6. Be that as it may, the impugned order records ground other than section 19(A) of the Customs Act, 1969 to affirm he disputed valuation advice dated 18-10-2008. The relevant discussion in paragraph 6 is reproduced below:--

"Perusal of record further reveals that many importers had paid duties and taxes on the basis of (sic) dated," 18-10-2008. However, the plea of the importer that the impugned valuation ruling was not applied at Peshawar and Rawalpindi dry ports carry, weight. It is amply clear that the Customs value determined under section 25-A ibid is applicable to the goods, imported into the country at any custom station. Therefore, the Director Valuation Karachi should take up the matter with Collector Customs Peshawar and Collector of Customs Rawalpindi for initiating appropriate action against the defaulting importers and staff. Regarding the applicant's case, the respondent stated that the proceedings culminating in issuance of the impugned valuation ruling were attended by the importers Association namely Messrs Pakistan Stationers Association and Writing Instruments Manufacturers Group. The respondent has given detailed explanation for the consideration of section 25(7) of the Customs Act, 1969, which was done in coordination with all the stakeholders and is clearly indicative of the fact that the aforesaid ruling was issued in accordance with the provisions of section 25 of the Customs Act, 1969 which is factually a decision in terms of section 25-A of the Customs Act, 1969, holding as applicability to all the relevant imports for equal treatment. The applicant has also not provided the sales tax paid invoices to justify the differences between the landed cost and their market selling prices. The impact of decrease in price in international market if ally, was not reflected in the selling prices of imported goods in the local market. This position therefore, nullifies the arguments as agitated by the applicant."

7. The merits of the controversy have been considered in detail by respondent No.2 in the impugned order. The point about section 19A of the Custom Act is neither the sole nor the operative ground of the impugned order. The other objection regarding the type and level of market inquiry and the types of imported goods that are allegedly subject to a valuation advice are not made out from the terms of the relevant statutory provisions in section 25 of the Customs Act, 1969. It goes without saying that a valuation advice must be based on the price/value of similar goods in the market and indeed the wholesale price of imported goods is closer to their import value rather than their retail price in the market. Furthermore it is also plain that a valuation advice is not confined to one import but to contemporaneous imports and clearly it cannot be issued for each import that was made. The writ petition has no merit and the same is, accordingly, dismissed.

H.B.T./M-56/LPetition dismissed.