AYESHA IMPEX VS FEDERATION OF PAKISTAN
2012 P T D 1
2012 P T D 1
[Lahore High Court]
Before Umar Ata Bandial, J
Messrs AYESHA IMPEX
Versus
FEDERATION OF PAKISTAN
Writ Petitions Nos.8931, 17144, 10058, 10057, 10056, 10055, 7845, 7844, 17049, 9335, 10064, 10063, 10062, 10061, 10060, 10059, 18763, 78762, 10070, 10069, 10068, 10067, 10066, 10065, 12360, 12912, 5501, 15493, 14961, 14962, 16026, 16027, 17050, 17051, 17059, 17677, 15789, 18918, 18919, 18493, 25581, 23435, 25226, 25227, 24298, 27209, 18764, 19130, 20228, 21409, 23908, 23909, 23910, 23911, 24111, 26859, 26290, 23235, 26289, 3625, 3626, 22672, 22673 of 2010 and 3732, 3731, 662, 1594, 9287 and 7653 of 2011, heard on 04/05/2011.
Customs Act (IV of 1969)---
----Ss.25, 25-A(4) [as amended by Finance Act (XVI of 2010)]---Customs Rules, 2001, Rr.107(a) & 121---Constitution of Pakistan, Art.199---Constitutional petition---Interpretation of S.25-A, Customs Act, 1969---Determination of customs value of imported goods---Valuation advice dated 23-10-2009 issued under S.25-A of Customs Act, 1969, was made applicable by Assessing Authorities to the consignments of goods imported in April, 2010 under the respective goods declaration filed by the importers---By reliance on said advice, the Assessing Authorities rejected the declared valuation of imported goods and adopted the higher valuation---Validity---Section 25-A of the Customs Act, 1969 was amended during the course of hearing of petition---Section 25-A had conferred power on the valuation authority to pre-determine the valuation of imported goods on the principles laid down in S.25 of the Customs Act, 1969---Valuation advice issued under S.25-A of Customs Act, 1969, was meant to last for 90 days or so as contemplated by provisions of S.25 of the Act and R.107 of Customs Rules, 2001---Valuation ruling must ordinarily be required as valid for a period of ninety days from the date of issuance---Section 25-A(4) had provided that a valuation ruling shall be applicable until and unless revised or rescinded by the competent Authority---Interpretation and application of said subsection (4), was that while the valuation ruling would continue to hold the field unless revised or rescinded, any aggrieved importer had the right to approach the concerned Officer after the ninety days period and he would then have give reasons as towhy the ruling had not been revised or rescinded---Impugned valuation advice and other valuation advice that could have been issued, would survive and continue to have validity for 90 days from the date of their issuance; and thereafter the valuation authorities were under a duty to justify the value to issue a fresh advice; in other words to give grounds to maintain an existing valuation advice.
Sadia Jabbar v. Federation of Pakistan and others C.P. No.2673 of 2009 rel.
Mian Abdul Ghaffar and Raza Ahmad for Petitioners.
Haider Rasool Mirza and Amjad Mahmood Butt and Umar Ahmad Khan for Petitioners in connected petitions.
Sh. Izhar-ul-Haq, Ehsan Ullah Cheema for Respondents/ Directorate of Valuation.
Sarfraz Ahmad Cheema, Ch. Muhammad Zafar Iqbal, Syed Tahir Abbas Rizvi and Irteza Ali Navi for Respondents/Customs Collectorate.
Hafeez Saeed Akhtar for Respondents Nos.3 and 4 (in Writ Petition No.3732 of 2010).
Rao Naseem Hyder Khan for Respondents.
Date of hearing: 4th May, 2011.
JUDGMENT
UMAR ATA BANDIAL, J.---This order shall dispose of Writ Petitions Nos. 17144, 10058, 10057, 10056, 10555, 7845, 7844, 17049, 9335, 10064, 10063, 10062, 10061, 10060, 10059, 18763, 78762, 10070, 10069, 10068, 10067, 10066, 10065, 12360, 12912, 5501, 15493, 14961, 14962, 16026, 16027, 17050, 17051, 17059, 17677, 15789, 18918, 18919, 18493, 25581, 23435, 25226, 25227, 24298, 27209, 18764, 19130, 20228, 21409, 23908, 23909, 23910, 23911, 24111, 26859, 26290, 23235, 26289, 3625, 3626, 22672, 22673 of 2010 and 3732, 3731, 662, 1594, 9287 and 7653 of 2011 involving common question of law.
2.The main question arising for determination in thispetition is whether the impugned valuation advice dated 23-10-2009 issued under section 25-A of the Customs Act, 1969 ("Act") had lost force after the lapse of 90 days of its issuance in terms of sections 25(5) and (6) of the Act read with Rule 107(a) and Rule 121 of the Customs Rules, 2001("Rules"). In the present case,thesaid valuationadvicedated23-10-2009 ("impugned advice") was made applicable by the respondent assessing authorities to the consignments of goods imported by the petitioner in April, 2010 under the respective Goods Declarations ("GDs") filed by the petitioners with the said authorities. By reliance on the impugned advice, the assessing authorities rejected the declared valuation of the imported goods and adopted the higher valuation attributed to the said goods in the impugned advice. Such action has aggrieved the petitioners who have brought the present challenge on grounds of jurisdictional excess and illegality.
3.During the course of hearing in these proceedings, section 25-A of the Act, whereunder the impugned valuation advice had been issued, was amended by the Finance Act, 2010. This led to additional points being raised by the learned counsel for the petitioners. Whilst arguments in the matter were in progress, many of the points raised before the Court have been addressed in a lucid and considered judgmentdated28-2-2011 authored by Munib Akhtar J. for the Division Bench of the Hon'ble Sindh High Court in C.P. No.2673 of 2009 titled Sadia Jabbar v. Federation of Pakistan and others. Most carefully that judgment interprets section 25-A of the Act as conferring a power on the valuation authority to predetermine the valuation of imported goods but on the principles that are laid down in section 25 of the Act. Accordingly, on the question regarding the period of validity of a valuation advice issued under section 25-A ibid that is, inter alia, raised for determination in the present proceedings, it is concluded that a valuation advice issued under section 25-A of the Act is meant to last for 90 days or so as contemplated byprovisions of section 25 of the Act and Rule 107 of the Rules.
4.To understand the rationale of the foregoing finding, it is appropriate to reproduce the relevant passage in the said judgment:--
"As pointed out by learned counsel for the petitioners, the exercise carried out under section 25A is a "determination" and not a mere "fixation"(as was the case, e.g., under section 25B, or subsection (14) of section 25, both omitted from the Act in 2004 and 2005 respectively). The "determination" is a multi-step exercise, at each stage of which there has to be a proper application of mind by the concerned officer. It is therefore appropriate that the ruling should contain sufficient details to show that section 25A has been properly applied. Furthermore, the fact that the determination is subject to revision by the Director-General Valuation under section 25D, and the latter's decision is now appealable to the Appellate Tribunal (seesection 194A(1)(e)), also make it necessary that the valuation ruling should be a speaking order. This is in any case, the requirement of section 24A of the General Clauses Act, 1897. As is clear from the foregoing, a determination under section 25A is no simple thing. It may therefore be helpful for F.B.R. to consider issuing appropriate guidelines under section 223 of the Act to assist the concerned officer, without of course, affecting or usurping the powers statutorily vested in him by section 25A.
..
Two further points must be made. Firstly, it is clear that the section 25A cannot have retrospective effect, i.e., a valuation ruling cannot be issued in relation to goods actually imported, nor can it be applied to imported goods unless it was issued before such importation. As noted above, what section 25A enables is a predetermination of the customs value. Such a determination can only apply in relation to goods not actually imported at the time that the determination is issued. If there is no valuation ruling when the goods are actually imported, it is only section 25 which is applicable. Secondly, a valuation ruling issued under section 25A can, in our view only apply for a certain period and no more. The reason for this lies in the fact that the valuation ruling must be determined using one of the methods of section 25/the Valuation Agreement. Now at least three of those methods, the identical goods method, the similar goods method and the deductive value. method, require the value to be determined "at or about the same time" as the goods being valued. This expression has been defined in Chapter IX of the Rules (in Rule 107) as meaning "within ninety days prior to the importation or within ninety days after the importation of goods being valued". In our view, avaluation ruling must therefore ordinarily be regarded as valid for a period of ninety days from the date of issuance. Subsection (4) of section 25A, added by the Finance Act, 2010 of course now provides that a valuation ruling "shall be applicable until and unless revised or rescinded by the competent authority". In our view, the proper inter-pretation and application of this subsection, in the light of the principles stated in para 10 supra, is that while the valuation ruling will continue to hold the field unless revised or rescinded, any aggrieved importer has the right to approach the concerned officer after the ninety days period mentioned above, and he would then have to give reasons why the ruling has not been revised or rescinded." (underlining supplied)
5.The principles enunciated in the foregoing observations squarely answer the question raised in the present dispute before the Court. The main question regarding the period of validity of a valuation advice under section 25(5) and (6) of the Act read with Rule 107(a) and Rule 121 of the Rules has been elaborately dealt with in the highlighted text in the quoted extract of the judgment. Learned counsel for the respondent customs authorities is not in a position to distinguish or dispute the findings given in the above noted judgment on the points in issue in the present proceedings before the Court. For deciding questions of law that are raised in the present proceedings, the reasoning given in the Sadia Jabar case is adopted with great respect.
6.As a result, the valuation advice impugned herein and other valuation advices challenged in connected matters that may have been issued on different dates, it is held that the same survive and continue to have validity for a duration of 90 days from the date of their issuance. Thereafter the valuation authorities are under a duty to justify the failure to issue a fresh advice, in other words to give grounds to maintain an existing valuation advice.
7.Petitions are allowed in the light of the judgment.
H.B.T/A-210/LPetitions allowe