COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS HOUSE, KARACHI VS AKHTER HUSSAIN, 2015 PTD-SUPREME-COURT 1882 (2015)

(On appeal against the judgment dated 19-4-2003, passed by the High Court of Sindh, Karachi, in W.P. No. 16 of 2003)

Customs Act (IV of 1969)---

----Ss. 79(1), proviso & 205---Import of consignment---Bill of entry, amendment in---Scope---Upon arrival of consignment importer filed bill of entry along with a request under proviso to S. 79(1) of the Customs Act, 1969, on the back of the bill of entry, for carrying out 100% examination of the consignment for determination of the correct description, quantity, PTC Heading, etc.---Meanwhile the supplier abroad informed the importer that the clearing invoice was not correct and certain items had been missed or indicated incorrectly---Importer immediately applied to the customs authorities seeking amendment in the bill of entry, under S. 205 of the Customs Act, 1969---Customs authorities refused to amend the bill of entry contending that amendment sought in the bill of entry after its filing, fell within the termmis-declaration---Validity---Record showed that at the time of filing bill of entry, importer had made a request in terms of proviso to S.79(1) of the Customs Act, 1969, for examination of the goods, which request was allowed by customs authorities---Record further showed that within the stipulated time a formal application was made seeking amendment of the bill of entry---High Court had correctly allowed importer's application for amendment of bill of entry and directed customs authorities to finalize the goods being perishable---Appeal filed by customs authorities was dismissed accordingly.

Raja Muhammad Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Respondent No.1.

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.2.

Date of hearing: 28th April, 2015.

JUDGMENT

AMIR HANI MUSLIM, J.---This Appeal by leave of the Court is directed against judgment dated 19-4-2003 passed by the High Court of Sindh, Karachi, whereby the Writ Petition filed by the respondent was allowed.

2.The facts necessary for adjudication of the Appeal are that the respondent No.1 imported a consignment of Textile Fabric/ Miscellaneous goods, valuing U.S $ 54039 dated 1-11-2002 and upon arrival of goods, he filed bill of entry dated 15-11-2002, under the first appraisement, seeking clearance of goods on payment of all the leviable dues in accordance with law. Copy of commercial invoice and bill of lading was also produced along with the bill of entry. With the bill of entry, the respondent No.l made a request under proviso to section 79(1) of the Customs Act, 1969 (hereinafter referred to as the Act), on the reverse of the bill of entry, for carrying out 100% examination for determination of correct description, quantity, PTC Heading, Art/Part number etc.

3.The request was allowed by the competent Customs Officer and the entry was marked as "under first appraisement" and goods were examined. A report of such examination was reduced into writing on the back of the bill of entry.

4.After filing the bill of entry by the respondent, he was informed by the supplier abroad, by letter dated 27-11-2002, that while clearing invoice dated 16-11-2002, his staff missed certain items and wrongly indicated the value as U.S $ 18817, whereas the shipment contained same quantity of all items mentioned in the pro forma invoice dated 1-11-2002, valuing U.S $ 54039. The supplier abroad also provided a supplementary invoice dated 25-11-2002 for items, which were not mentioned earlier in the commercial invoice.

5.The respondent No. 1 immediately wrote a letter dated 28-11-2002 to the appellant No.2, seeking amendment in the bill of entry dated 15-11-2002, under section 205 of the Act, in accordance with the supplementary invoice, which was in conformity with the pro forma invoice. Firstly, the appellant No.2 verbally refused to amend the bill of entry, process and clear the goods, whereafter the respondent No.1 addressed many letters for the proposed amendment for home consumption and on payment of duties and taxes leviable under the law. However, vide letter dated 30-12-2002, the appellant No.2 declined the request, on the ground that the request was not in accordance with the Standing Orders 5 of 2002 dated 29-9-2002 and 9 of 2002 dated 6-3-2002.

6.The respondent No.1 impugned the letter dated 30-12-2002 in the Constitutional Petition before the learned High Court, which was allowed, by the impugned judgment, with direction to the appellants Nos.1 and 2 to finalize the entire goods being perishable. The appellants preferred Petition for leave to Appeal before this Court, in which leave was granted, vide order dated 14-10-2003. Hence this Appeal.

7.The learned counsel for the appellants has contended that the impugned judgment is not sustainable at law, as the learned High Court has wrongly held that the Standing Orders Nos.5 and 9 of 2002 were violative of the provisions of section 79 read with section 205 of the Act. He next contended that the Custom Authorities, in terms of C.G.O. 12 of 2002, were empowered to decline the request of the respondent No.1 for amending the bill of entry once it was filed by him. It was further contended that amendment sought in the bill of entry after its filing, falls within the term mis-declaration, which attracts the provisions of section 32 of the Act. He further contended that to cover up his mis-declaration the respondent No.1 sought amendment in the bill of entry, which the law permits, in view of Standing Orders 5 and 9 of 2002.

8.On the other hand, the learned counsel for the respondent No.1 has contended that at the time of filing of bill of entry, a request in terms of proviso to section 79(1) of the Act was made on the back of the bill of entry for carrying out 100% examination for determination of current description, quantity, PTC Heading, Art/Part number etc., which request could not be turned down on the strength of Standing Orders Nos.5 and 9 dated 6-3-2002 and 2-9-2002. He submits that request of the nature is permissible in terms of section 205 of the Act.

9.We have heard the learned counsel for the parties and have perused the record. It is not in dispute that at the time of filing of bill of entry a request in terms of proviso to section 79(1) of the Act was made, which fact is reflected on the back of the bill of entry. Within the stipulated time, a formal application was also made seeking amendment of the bill of entry. This fact is reflected from the record of the Customs Authorities perused by the learned High Court, which also reflects that permission of the nature was granted by the concerned officer. There is no denial of the fact that request on the back of the bill of entry was made by the respondent No.1 at the time of filing of the bill. The provisions of section 205 permit amendment of bill of entry if such a request is made within the stipulated time by the importer.

10.The learned High Court has dilated upon the issues in depth and has correctly recorded findings against the appellants to which no exception can be drawn.

11.We for the aforesaid reasons, do not find any infirmity in the impugned judgment of the learned High Court, which could warrant interference by this Court. This Appeal is accordingly dismissed with no order as to costs.

MWA/C-5/SCAppeal dismissed.