O.H.O. INTERNATIONAL VS The COLLECTOR OF CUSTOMS (APPEALS), 2014 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2056 (2013)

Customs Act (IV of 1969)---

----Ss.25, 80, 81, 155-Q, 193, 194A & 215---Customs Rules, 2001, R.440---Customs General Order No.12 of 2002, Paras. 44, 66 & 79---Appeal against view message---Maintainability---Appellant imported clear float glass and declared the value of same on lower side---Customs authorities opted to determine the value of imported goods and cleared the consignment provisionally subject to deposit of security---Customs authorities, after few days of provisional clearance, transmitted view message to pay additional amount in addition to the security already deposited---Appellant aggrieved by the transmitted view message preferred an appeal before Collector of Customs (Appeals), which was dismissed---Validity---Assistant/Deputy Collector of Customs of the respective group upon appearance of valuation advice on their desktop in case of automated system and hard copy of advice from the office of Assistant Director of Customs in case of "One Customs Regime" issued view message/notice to the importer---After receipt of reply of the importer and conclusion of personal hearing the Assistant/Deputy Collector of respective group was to pass the final assessment order on the prescribed format and communicate the same electronically online to the importer and that order became an appealable order---In the present case, neither the impugned view message had spelled about passing of assessment order nor it qualified as per the prescribed format---Impugned view message could not be termed as an order transmitted/passed under the respective provisions of the Customs Act, 1969---Collector of Customs (Appeals) had erroneously registered the appeal and passed impugned order in appeal---Appeal filed by appellant before the Collector of Customs (Appeals) was not maintainable---Impugned order in appeal was set aside---Customs authorities were directed to supply the copies of final assessment orders according to law and appellant was given right to file appeal against that very order---Appeal was disposed of accordingly.

Muhabat Hussain Awan for Appellant.

Ghulam Yasin, Principal Appraiser for Respondent No.2.

Nazar Muhammad, Appraising Officer for Respondent No.3.

Date of hearing: 17th July, 2013.

ORDER

GHULAM AHMED, MEMBER (TECHNICAL-II).---By this order, I will dispose of Customs Appeal No. K-428/2013 filed by the appellant against Order-in-Appeals Nos. 4192 to 4252 of 2010 dated 12-8-2010, passed by the Collector of Customs (Appeals), Karachi.

2.Brief facts of the case are that the appellant imported clear float glass through CRN No.1-HC-1391986 dated 26-4-2010 from Guardian Industrial Corporation UAE, since the value declared by the appellant consignments were seem to be on lower side, the respondent No. 2 opted to exercise power vested with him under section 81 of the Customs Act, 1969 read with Rule 439 of Sub-Chapter-III of Chapter-XXI of Customs Rule, 2001 and assessed the goods provisionally for clearance, subject to determination of value by the respondent No.3, the respondent No.2 after completion of clearance under section 83 and Rule 442 of Sub-Chapter-III of Chapter-XXI of the Customs Rules, 2001, referred the good declaration online to the office of respondent No. 3 for determination of the value within the provision of section 25 of the Customs Act, 1969 and Valuation Rules embodied in Chapter of Customs Rules, 2001 as per direction contain in sub-Para (5) of Para 44 of CGO 12/2002 dated 15-6-2002. After lapse of just 17 days from the date of clearance, i.e. 29-4-2010 the respondent No. 2 transmitted view message dated 14-5-2010 to pay additional amount of Rs. 40,452.00 in addition to the security deposited through pay order at the time of clearance vide No.S/9716/29-4-2010. The appellants on the strength of good declaration confirming provisional clearance of the goods and view message dated 14-5-2010 preferred an appeal before respondent No.1 in terms of section 193 of the Customs Act, 1969. Who dismissed, most relevant Para 5 of the order is reproduced here-in-below:--

"I have thoroughly examined the entire case record and given careful consideration to the arguments advanced before me. The evidence on record indicates that the Directorate General had determined customs value of the goods imported in these cases after taking into consideration multiple factors such as international prices of the goods, prices of raw material etc. and the assessment thereof were finalized accordingly. The learned consultant's contention of taking the valuation ruling dated 22-5-2009 as reference is misplaced in as much as the aforesaid ruling deals with the clear float glass of China origin, whereas the goods imported in the instant 61 cases were not of China origin; the value of instant goods cannot be determined by way of making the value of China goods as reference point because China origin goods are known to be inferior in quality and, in any case, such a practice is alien to the provision of law contained in section 25 of the Act read with Rule notified thereunder. Moreover, from the record I observed that appellant had not submitted corroborative documents, either to clearing Collectorate or the Director General, to prove that the declared transaction value were actually the prices on which they had bought the goods under the circumstances, I rule that customs values of the impugned goods have been correctly determined and communicated to the appellant through the automated system operative under PaCCS. The appeal, having no merit, are rejected accordingly."

3.The appellant assailed the order before the Tribunal vide appeal No. 1029/2010, which was decided in favour of appellants No.1 through order dated 20-12-2010 and the said order was applied mutatis mutandi on the cases of the remaining 22 appellant's. The Collector of Customs, MCC of PaCCS filed Special Customs Reference Applications No. 340 to 400/11 under section 196 of the Customs Act, 1969 before the Honourable High Court of Sindh against the said order on the grounds of application of order mutatis mutandi. The Hon'ble High Court of Sindh through order dated 24-4-2013 disposed off the reference application with the observation reproduced here-in-below:--

"We have heard learned counsel for the parties and have considered the decision relied upon by the learned counsel for applicant's. In our view, these decisions are cleared and in view of the same, since those are decision of the learned Division Benches, we are bound to answer the proposed Question No. 1 in favour of the applicant and against the respondent. Accordingly this question is show answered and in view of this position the impugned order is set aside and the matters are remanded to the Appellate Tribunal for considering the case afresh on the merit after giving an opportunity of hearing to the learned Counsel for respective parties we would note that even if common question of law are involved which, of course, can be disposed in the same way , any order made in these matters (now Appeals pending before the Appellate Tribunal) must show on the face of it that the Appellate Tribunal has applied his mind to the fact and circumstances of each case. Needless to say, nothing in this order shall prejudice the case of the applicant department or the present respondent before the Appellate Tribunal."

4.Upon receipt of order of the Hon'ble High Court of Sindh, the appeal was re-number as K-428/2013 and notice was issued for deciding the cases afresh on the merit. Mr. Muhabbat Hussain Awan, Advocate appeared on behalf of the appellant's Mr. Ghulam Yasin, Principal Appraiser for the respondent No.2 and Mr. Nazar Muhammad Appraising Officer for respondent No. 3 on 17-7-2013. The Advocate of the appellant argued the case on the same line as was done on 20-12-2010 and so the representatives of the respondents Nos. 1, 2 and 3.

5.During the course of hearing, the Advocate of the appellant was asked to satisfy the Tribunal as to whether filing of appeal before respondent No.1 on the basis of good declaration confirming provisional clearance of the goods and view message dated 14-5-2010 was valid in terms of sections 155Q and 193 of the Customs Act, 1969. Whereas, representative of the respondent No.3 was asked to supply the copy of advice showing determination of value under sub-Para (5) of Para-44 of CGO 12/2002. Likewise representative of respondents Nos. 1 and 2 was asked to supply the copies of final assessment orders passed after determination of value by the office of respondent No. 3 in terms of section 80 and Rule 440 of Sub-Chapter-III of Chapter-XXI of Customs Rules, 2001 as per direction contain in Para-66 on the format prescribed in Para-79 by the Board. All failed to produce the requisite documents called for as well as the Advocate of the appellant, who has no answer to the maintainability of the appeal before respondent No. 1.

6.The consignment was cleared provisionally under the provision of section 81 and Rule 439 of Act/Rules, after securing the amount of duty and taxes calculated on the basis of ad-hoc value through security are either forwarded electronically or manually to the office of respondent No.3 for determination of value of the said consignment as per direction contained in sub-Para (5) of Para 44 of CGO 12/2002 dated 15-6-2002 and 3(b) of Notification No. 494(I)/2007 dated 9-6-2007 in exercise of the power vested upon them through Notification S.R.O. No. 495(I)/2007 dated 9-6-2007. The office of the respondent No.3 after calling for the documents and providing opportunity to the importer determines the value of the consignment in question and in case of clearance through automated system transmit the determined value on line to the clearance Collectorate and through an advice to the Collectorate operating under the regime of "One Custom".

7.The Assistant/Deputy Collector of the respective group upon appearance of valuation advice on their desktop in case of automated system and hard copy of advice from the office of respondent No.3 in case of "One Custom Regime" issue view message/notice to the importer as per direction contained in Para 66 of CGO 12/2002 dated 15-6-2002 reading inter alia:--

Delay in finalization of final assessment of bill of entry:-

The case of finalization of provisional assessment has been a subject of detailed discussion between the office of the Wafaqi Mohtasib and the Central Board of Revenue.

It has been decided that the provisional assessment should be finalized within four months to be extended by another two months in specific circumstances which should be recorded in writing. It has further been decided that orders of refund shall be made wherever due at the part of the final assessment order which should be speaking one and should contain all the relevant information on the basis of which value of the imported goods has been fixed.

In view of this position, the following instructions are for strict compliance by filed formations:-

(i)All cases of provisional assessment shall be finalized within a period of four months. Where assessment cannot be finalized within four months, owing to exceptional circumstances beyond the control of Custom Houses or Valuation Departments, such period shall be extended by the Collectors, of Customs or the Controller of Valuation, as the case may be, by a further period of two months recording reasoning in writing. Such extension shall also be intimated to the importers.

(ii)Final assessment order shall be speaking one and shall also incorporate all the details and evidence on record on the basis of which value had been fixed or assessment has not finalized. This is necessary to enable the importer to file appeal with the appellate authority if he is not satisfied with the assessment order so made."

(iii)Where on the basis of final assessment any refund is due to the importer, the final assessment order shall also contain order for refund of the said amount and the importers shall not be required to make fresh requests for the refund.

(iv)Keeping in view the time constraint indicated above, refundable amount shall be paid expeditiously.

Collectors/Controller of Valuation shall ensure that these instructions are complied with in letter and spirit.

8.That after receipt of reply of the importer and conclusion of personal hearing the Assistant / Deputy Collector of the respective Group has to pass the final assessment order under sections 80, 81(5) of the Customs Act, 1969 and Rule 440 of Sub-Chapter-III of Chapter-XXI of the Customs Rules, 2001 on the format prescribed in Para 79 of CGO 12/2002 and communicated electronically that online to the importer in terms of section 155Q of the Customs Act, 1969. In case of One Customs Regime serve that as per the expression of section 215 of the Customs Act, 1969 and that order became an appealable order under sections 193 and 194A of the Customs Act, 1969. For better appreciation the direction of Para 79 is reproduced:--

79. Adjudication Orders ---Instructions regarding .. The top of the order-in-original is prescribed as below:--

ANNEX-1

ORDER-IN-ORIGINAL

N.B An appeal against this order lies to the Collector of Customs/Central Board of Revenue, Islamabad, as the case may be, within 30 days from the date of receipt of this order. Such appeal should bear in a court fee stamp of Rs.10 and Rs.25 respectively and be accompanied by a copy of the order bearing a court fee stamp of 50 paisa prescribed under Schedule 1 , item (vi) of the Court Fee Act, 1870.

Name of the Party:-

Subject:-

ORDER

Adjudicating Officer

(Signature and seal)

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ORDER OF THE COLLECTOR OF CUSTOMS/

CENTRAL BOARD OF REVENUE, IN CUSOTMS APPEAL

No. of 200-

N.B. No appeal lies against this order, but if the appellant is dissatisfied with it, he may make an application for revision to the Government of Pakistan within 30 days from the date and receipt of this order.

Any such application should be addressed to the Joint Secretary/Additional Secretary, Ministry of Finance, Government of Pakistan, Islamabad. The application should been Court Fee Stamp worth Rs. 25 and it must be accompanied by this copy or another copy of this order bearing Court Fee Stamp of fifty paisas prescribed under Scheudle-1 , item 6 of the Court Fee Act, 1870.

Name of the party:-

Subject

ORDER

(Collector of Customs)/

Second Secretary

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9.A close examination of the view message dated 14-5-2010, it is observed that it is silent with regard to determination of value under section 25 of the Customs Act, 1969 through an advice by the office of respondent No. 3 in terms of sub-Para (5) of Paras 44 and 3(b) of Notification No. 494(I)/2007 dated 9-6-2007 in exercise of the power vested upon them through Notification No.495(I)/2007 dated 9-6-2007. Neither the said view message spell about passing of final assessment order under sections 80 and 81(5) of the Customs Act, 1969 and Rule 440 of Sub-Chapter-IIII of Chapter-XXI of Customs Rules, 2001 in accordance with the direction of the Board given in Para 66 of CGO 12/2002 dated 15-6-2002, nor it qualify as per to the format prescribed by the Board in Para 79 of the CGO ibid. Resultantly, impugned view message cannot be termed as an order transmitted/ passed under the respective provision of the Act, Rules and Regulation framed there-under and direction of the Board. Hence, appeal against that is not competent under section 193 of the Customs Act, 1969. Therefore, it was erroneous on the part of respondent No.1 to register the appeals and pass orders on those despite not valid in terms of section 193 ibid.

10.In view of the foregoing, I hold that the appeal before respondent No. 1 were not maintainable under section 193 of the Customs Act, 1969 and order so passed by him vide Appeals Nos. 4192 to 4252/2010 dated 12-8-2010 are hereby set-aside being void ab-intio and dismiss the appeals of the appellant's being filed against unlawful order of the respondent No.1. With this I also direct the respondent No.2 to supply the copies of electronic communication in terms of section 155-Q of final assessment orders passed under sections 80 and 81(5) of the Customs Act, 1969 and Rule 440 in compliance of Board direction given in Para 66 and on the prescribed format given in Para 79 of CGO 12/ 2002 dated 15-6-2002 by the competent officer to the appellant's within 30 days of this order for challenging their vires under provisions of section 193 of the Customs Act, 1969, which is their in-alienable right guaranteed under the Constitution of Islamic Republic of Pakistan. The appeal is disposed of in above terms as no order to cost.

11.Order passed accordingly.

JJK/195/Tax(Trib.)Order accordingly.