SALLM SERUJ LTD., AFGHANISTAN VS DEPUTY COLLECTOR CUSTOMS, TFS, NLC,NOWSHERA
2012 P T D (Trib
2012 P T D (Trib.) 1026
[Customs Appellate Tribunal Peshawar Bench]
Before Gulab Shah Afridi, Member (Judicial)
Messrs SALLM SERUJ LTD., AFGHANISTAN and another
versus
DEPUTY COLLECTOR CUSTOMS, TFS, NLC,NOWSHERA and 2 others
Appeal No. Cus. 101/PB of 2011, decided on 27/12/2011.
Customs Act (IV of 1969)---
----Ss. 32, 129, 156(1)(9)(43)(69)(90), 181, 193-A & 194-A---Misdeclaration---Confiscation of non-declared excess quantity of imported goods---Customs staff our examination of imported goods found 25200 yards of imported polyester fabrics in excess of the quantity as declared by the importer in violation of S.129 of the Customs Act, 1969 attracting the provisions of S.32 of the Act---Deputy Collector Customs vide order-in-original ordered outright confiscation of the non-declared excess quantity of polyester fabric---Collector Customs (Appeals) modified order-in-original to the extent that the importer was given an option under 5.181 of Customs Act, 1969 to redeem the confiscated goods against payment of redemption fine---Validity---Goods were loaded on the basis of weightage, which was mentioned in the Bill of Lading as well as in the invoice and not on the basis of measurement---Only thing on the basis of which cage had been based was that there was a difference in the yardage as per physical examination---Once the Customs staff demanded assessment to be made on the basis of weight, then the measurement was not required as was done---No case of misdeclaration, was established in circumstances---No illegality or impropriety had been pointed out---Description of goods was the same as per ATTI, number of packages were the same, weight was the same and the only difference was of yardage---No discrepancy was found in the description of the goods, marks and numbers of package---No ban, restriction on the transit of seized cloth under any notification as required under S.129 of Customs Act, 1969 was imposed---Importer had fulfilled all the requirements and filed the due documents for clearance of the goods wherein no discrepancy with regard to description, quantity and weight was reported---Provisions of Ss.128 & 129 of Customs Act, 1969 were not invokable---Impugned orders were set aside and penalty imposed on the importer as well as redemption fine imposed on goods, was remitted in circumstances.
Danish Ali Qazi for Appellants.
Naseer Khan, Deputy Superintendent Customs for Respondents.
Date of hearing: 27th September, 2011.
JUDGMENT
GULAB SHAH AFRIDI, MEMBER (JUDICIAL).---This appeal filed by Messrs Sallm Seruj Limited and another (appellants herein) is against the Order-in-Appeal No.115 of 2011 dated 26-5-2011 (issued on 23-6-2011) passed by the learned Collector Customs (Appeals), Peshawar.?????????
2. Brief facts of the case are that at the Customs TFS/NLC Amangarh, a consignment of polyester fabrics pertaining to ATTI No.12738 (AT No.12738) dated 26-10-2010, filed by the Messrs Meezan Customs Agency, Peshawar (the Border Agent), on behalf of an Afghan Importer Messrs New Shinwari Ltd, 1st Floor, Al-Madina Market, Jalalabad, Afghanistan, the goods were examined by the customs staff and found 127200 yards foreign origin polyester fabrics instead of 102000 yards as declared in the AT and thus found 25200 yards of polyester fabrics in excess of the quantity (102000 yards) as declared by the party in AT & ATTI mentioned above. This act of misusing the facility of Afghan Transit Trade on the part of the importer as well as the border agent was violation of section 129 of the Customs Act, 1969 attracting the provisions of section 32 ibid, read with Pak-Afghan Transit Trade Agreement 1965, punishable under section 156(1)(9)(43)(64) and (90) of the Customs Act, 1969. Subsequently, on completion of the requisite formalities, the matter was adjudicated upon by the Deputy Collector Customs, TFC, NLC, Amangarh, Nowshera, who vide his Order-in-Original No.4-7 of 2011 dated 22-12-2011, ordered outright confiscation of the non-declared excess quantity of the polyester fabric measuring 20000 yards.
3. Aggrieved of the Order-in-Original, the appellants filed appeal before the Collector Customs (Appeals), Peshawar, who vide his Order?in-Appeal No.115 of 2011, while deciding the appeal ordered as follows: --
"(10) It has been observed that the appellant submitted materially incorrect documents reflecting the yardage as 127200 instead of 102000. The appellant have failed to advance any plausible reason justifying the mis-declaration. They also failed to bring the discrepancy in the knowledge of the concerned customs authorities with a request for submission the revised/correct documents. This act on their part tantamount mala fide intention. The gross mis-declaration in the quantity rendered the appellants for penal action.
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(11) Keeping in view the above facts, overall circumstances of the case and the nature of the consignment i.e., transit goods, a lenient view is taken and the appellant is given an option under Section 181 of the Customs Act, 1969 to redeem the seized/confiscated goods against payment of redemption fine of Rs. 300, 000 (rupees three hundred thousand only) and personal penalty of Rs. 200, 000 (rupees two hundred thousand only) is also imposed under section 156(1)(64) of the Customs Act, 1969. Moreover, the concerned customs staff is directed to make necessary amendment in the transit documents by mentioning the correct yardage therein. The Deputy Collector, Customs Transit Station, NLC, Amangarh, Nowshera is also directed to process the case accordingly and get the consignment cross the border for, its final destination properly. The impugned order is modified to the extent of the appellant. "
?4. Aggrieved of the above Order-in-Appeal No.115 of 2011, the appellants have filed the instant appeal before this Tribunal on the following grounds:--
(i) That impugned order is erred both in law and facts, hence, not sustainable in the eyes of law;
(ii) That impugned order is bad in law as instead of deciding the appellant cause on its own merit, it was decided as mutatis ?mutandis on the basis of some other case which was varying in fact and cause, hence, at original stage, the appellant in fact has been denied the opportunity of adjudication;
(iii) That imposition of penalty of Rs.200, 000 is void ab initio as it is a trite law that appellate forum neither can create a fresh liability nor enhance the liability unless and until a show-cause notice be issued by the appellate forum to the appellant;
(iv) That entire proceedings against the appellant are void ab initio for seizing the lawfully imported goods in transit to Afghanistan for frivolous reasons, thus, impugned order is not legally sustainable;
(v) That under the circumstances where transaction between the consignor and consignee as per international practice has been struck in terms of eight and not in yardage, thus, the yardage written arbitrarily or might be due to inadvertence by the consignor cannot be made as a, basis of initially for the seizure and finally for the confiscation. The reason for being unmindful as the consignor was receiving payment against weight;
(vi) That impugned cause of the Show Cause/seizure/confiscation is highly misconceived as basic agreement of Sale as evident from B/L and Invoice is weight not yard, hence, making out of cause on the basis of yardage is highly misconceived;
(vii) That Invoice No. ZITC-31205 is exactly in conformity with the B/L and the same may be verified from the concerned exporter of China, if deemed appropriate by this honourable authority. Here it is worth to add that appellant importer is a regular importer and per se has never been found involved in any kind of mal- practices;
(viii) That if the B/L and invoice be put in juxtaposition, both have found to be verifying and endorsing each other as the number of Packages in B/L and Invoice are the same i.e. 403 Bales which was found physically at NLC. If, there is any variation, it could be removed, if the consignment seized could have been precisely examined;
(ix) That besides, weight of the seized consignment is 'exactly the same as mentioned in B/L and Invoice and it could, be verified physically by weighing the seized goods from the said container;
(x) That it is not coincidence that the description of the seized goods completely in conformity with the particulars furnished by the Shipper in B/L;
(xi) That besides, in view of the above, the seal of the Container found to be intact, therefore, by no stretch of imagination, it can be assumed that any pilferage has taken place;
(xii) That it was with all these credentials and documents of lawful importation when the said consignment was- seized by the Customs at NLC Amangrah which seizure under the circumstances even prima facie is not sustainable;
(xiii) That under the circumstances, taking all the import documents in totality there is no doubt left that the seized goods are the one which have been imported by bill of lading No. B/L No. YMLUZ232127594 dated 2-10-2010 and cleared vide GD No.
KAPR-AT-12030 dated 16-10-2010;
(xiv) That in view of the above the sections of law invoked in the show cause notice such as inter cilia sections 32, 156(1), (9), (43), (64) and (90) of the Customs Act, 1969, and other sections of law have been inapplicable to the Afghan Transit seized goods;
(xv) That appellants, however, reserve the right to present further arguments verbally or in writing and to present evidence t, prove their case etc.
5. During the course of arguments, learned counsel for the appellant, while reiterating his grounds of appeal, contended that there no ban or restriction of Transit to Afghanistan of the goods,(cloth) ii question, the yardage not declared exactly as the goods were loaded cm the scale of weightage which is mentioned in the Bill of Lading as well as in the invoice. He further submitted that there is no agreement between the two countries i.e., Pakistan and Afghanistan of fixes yardage (quota) to be transit to Afghanistan via Pakistan. He submitted that in the ATTI No.12738 AT No.12738 dated 25/26-10-2010 filed b} the appellant the number of packages (bales) and weight were correctl3 declared. The only thing which was pointed out and on the basis of which the case has been based is that there was a difference in the yardages declared and found as per physical examination. Keeping in view that nothing as such has been hidden from the customs, therefore, there is no mis-declaration and mala fide on the part of the importer, neither there is any tax evasion as no duty and taxes are involved and there is no loss to the Government Exchequer and prayed that the order passed by the fora below may be set aside and the excess cloth may be restored to the appellant for transit to Afghanistan. He also prayed that the personal penalty imposed on the appellant may be remitted as no notice is served upon the appellant by the Collector (Appeals) under Section 193-A of the Customs Act, 1969. The counsel also relied on the judgment of this Tribunal passed by the learned Member (Technical) in Appeal No.Cus.02/PB/2011 dated 28-2-2011 of the similar nature and facts of the case.
6. On the other hand, the Departmental Representative contended that there is a big difference in between the declared quantity and the quantity pointed out in the physical examination by the Customs staff, hence the act of the appellant come within the ambit of misdeclaration, therefore, the order passed by the Deputy Collector Customs, Amangarh and the Collector Customs (Appeals) is according to law and require no interference. He prayed for dismissal of the appeal and maintaining of the impugned orders.
7. I have heard both the parties and have gone through the record of the case. It transpired that the customs staff at Customs Station, NLC, Amangarh, Nowshera examined the consignment pertaining to ATTI No.12738 AT 12738 dated 25, 26-10-2010 filed by Messrs Meezan Customs Agency, Peshawar (Borer Agent) on behalf Messrs New Shinwari Limited, Jalalabad, Afghanistan. During the course of physical examination, it was found that the quantity was 12700 yards whereas, the declared quantity 102000 yards, thus exceeding by 25200 yards then the declared quantity, the exceeding quantity was seized by the Customs staff for violation of section 129 of the Customs Act, 1969 attracting the provisions of section 32 of the Act (ibid). From perusal of the record, a question arises that is there any mis-declaration with mala fide intention? (2) is any payment of duty and taxes are involved payable to the Government Exchequer on the goods in Transit to Afghanistan. The goods were duly declared found as per declaration except that there was difference in yardages meant for a country outside Pakistan and in the Customs Tariff, the measurement of fabrics for the assessment of duty and taxes is "KG" i.e., weight and not meters, once the Customs Tariff demanded assessment to be made on the basis on weight then the measurement of the said fabrics was not required as done by the Customs staff, so there is no case of mis-declaration. Further, the declaration is for the purpose of payment of Customs duty, there is no illegality or impropriety has been pointed out. The record shows the description of goods is the same as per ATTI, number of packages are the same 294, weight is the same and the only difference is of yardage, there is no discrepancy in the description of the goods marks and numbers of packages and weight and further there is no ban, restriction on the transit of seized cloth to Afghanistan under any notification as required under section 129 of the Customs Act, 1969.
8. The importer has fulfilled all the requirements and filed the due documents for clearance of the goods wherein no discrepancy with regard to description, quantity and weight was reported, therefore', sections 128 and 129 of the Act are not invokabte.
9. Since the assessment of the goods is to be made by the afghan customs for the purpose of Customs duty and no payment of duty and taxes are involved in Pakistan. Reliance is placed on the-judgment of this Tribunal passed by the learned Member (Technical) in Appeal No.Cus.02/PB/2011 dated 28-2-2011 of similar nature case.
10. Keeping in view the above position, I allow this appeal, set aside the impugned Order-in-Appeal No.115 of 2011 dated 26-5-2011 and Order-in-Original No.4-7 of 2011 dated 2-2-2011 and remit the personal penalty imposed on the appellant as well as redemption fine imposed on the goods. However, necessary amendments may be made in the ATTI, if at all necessary and actual yardage may be endorsed on the ATTI for onward transportation to its destination (Afghanistan). This appeal stands disposed of accordingly.
H.B.T./74/Tax (Trib.)?????????????????????????????????????????????????????????????????????????? Order accordingly.