COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE VS COLLECTOR OF CUSTOMS (APPEALS), 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 502 (2016)

Customs Act (IV of 1969)---

----Ss. 25, 32, 81, 193-A(3) & 194-A---Customs value of goods---Determination--- Mis-declaration--- Remand--- Adjudicating authority finalized the provisional assessment vide Director General's valuation letter---Importer being not satisfied with the decision of adjudicating authority preferred appeal to Collector (Appeals), who set aside the order of adjudicating authority and remanded case to adjudicating authority for finalizing the value strictly in terms of S.25 of the Customs Act, 1969---Collector appeal also remanded the matter to the Adjudicating Authority---Validity---Appellant/importer in the memo of appeal pointed out amendment in S.193-A(3) of the Customs Act, 1969 which pertained to the power of remanding the appeal to the Adjudicating Authority by Collector (Appeals) having been taken away---Appeal filed by the importer was accepted by the Tribunal and valuation with direction that of goods was to be finalized keeping in view Director General valuation's letter---Appeal was accepted, in circumstances.

Imtiaz Elahi for Appellant.

Ehsan Baqir for Respondents.

Date of hearing: 18th April, 2016.

JUDGMENT

IMRAN TARIQ, MEMBER (TECHNICAL).---This judgment shall decide the above mentioned Customs Appeal filed against an Order-in-Appeal No.240/2011 dated 24.05.2011 passed by the Collector of Customs (Appeal), Lahore.

2.Brief facts of the ease are that Messrs Scale Tech Corporation, Lahore imported a consignment comprising of "welding face shield, air compressor, fire extinguisher, welding machine electronic scale load cells" from China and sought clearance thereof vide GD No.HC-7327 dated 22.12.2009 through Messrs The Eastern Commercial Corporation, Customs Clearing Agents, Lahore. The declared values of load cells i.e., capacities 500 Kgs, 1 Tons, 2 Tons, 5 Tons, 30 Tons and 1 Klb were found on lower side as compared to the value mentioned in valuation advice dated 29.07.2009 issued by the Directorate General of Customs Valuation, Karachi. The goods were assessed @ US$ 49.88/Piece (500Kgs), US$ 80.17/Piece (1 Tons), US$ 160. 54/Piece (2 Tons), US$ 187/Piece (5 Tons), US$ 423/Piece (30 Tons) and US$ 2.56/Piece (1 Klb) (total US$ 55421.38) in the light of valuation advice dated 29.07 2009 The Appellants contested the appraised value and requested to release the consignment provisionally under section 81 of the Customs Act, 1969. The request of the party was acceded to and goods were released provisionally under section 81 of the Customs Act, 1969 subject to cash payment on declared value US $ 4729.44 and differential amount of duty and taxes US $ 50691.94 secured in the shape of post dated cheque (good for payment) and the case was referred to Directorate General of Customs Valuation, Karachi.

3.As a consequence of adjudication, the adjudicating officer decided case as under:--

"I have examined the case record and also considered verbal submission of the importer and also perused the Directorate General of Valuation's letter No. 1/12/2010-VIII B/3846 date 07.10.2010. In the light of above position, I hereby order to finalize the provisional assessment in accordance with the values ascertained by the Directorate General of Customs Valuation, Karachi vide letter dated 07.10.2010 @ US $ 46/Piece (500 Kgs), US $140/Piece (1-Tons), US$ 155/Piece (2 Tons), US$ 178/Piece (5 Tons), US$ 194/Piece (30 Tons) & US$ 46/Piece (1 Klb). The importer Messrs Scale Tech Corporation, Lahore directed to pay the differential amount of duty and taxes between US$ 35.340/- which comes to Rs.214,379/- (CD Rs.152,042/-, WHT Rs.31,929/- & FED Rs.30,408/-). The importer is further directed to deposit the short levied amount of duty and taxes Rs.2,14,379/-within 10 days from the receipt of this order failing with post dated cheque shall be encashed without further notice."

4.Being not satisfied the appellant filed appeal before the learned Collector of Customs (Appeals), Lahore who passed the order. The operative part of the order is reproduced as under:--

"Foregoing in view, it is clear that it will be discriminatory to treat the impugned importer otherwise. Accordingly, the impugned assessment order is modified and the authority below is directed to assess the imported goods on the basis of valuation data of KCH during the relevant period. The determination of value be carried out by following scheme and procedure laid down in Section 25 of the Customs Act, 1969 by associating the appellants."

4(sic). Being further aggrieved from the aforesaid order of the learned Collector of Customs (Appeals), Lahore the appellant has filed the instant appeal before this Tribunal on the following grounds:--

i).That assessment of impugned load cell was completed as per valuation advice dated 29.07.2009 issued by the Directorate General of Customs Valuation, Karachi.

ii).That the importer contested the appraised value and requested to release the consignment provisionally under section 81 of the Customs Act, 1969. The request of the party was acceded to and goods were released provisionally under section 81 of the Customs Act, 1969 and the case was referred to the Directorate General of Customs Valuation, Karachi.

iii).That the Directorate General of Customs Valuation, Custom House, Karachi advised this Collectorate to finalize the assess-ment of the instant case vide letter No.1112/2010-VIII B/3846 dated 07.10.2010. Hearing notices were issued to the importer for finalization of provisional assessment Mr. Usman Ghani appeared for hearing on 05.11.2010 and verbally submitted that they again intend to challenge the values determined by the Directorate General of Valuation, Karachi however, the importer failed to provide copy of any review application filed before Director General Valuation, Karachi.

iv).That the assessment was finalized as per valuation advice bearing No. I/12/2010-VIII B/3846 dated 07.10.2010 wherein the Directorate General of Customs Valuation, Karachi has determined the customs value of subject load cells under section 25(9) of the Customs Act, 1969 and advised this Collectorate to finalize assessment accordingly.

v).That provisional assessment finalized as per valuation advice was correct, legally justified and order of Collector (Appeals) setting aside the final assessment order and finalization of assessment afresh is incorrect and in violation of section 193-A(3) of the Customs Act, 1969 wherein the power of Collector (Appeals) to refer back the case to adjudicating authority for re-adjudication or decision has been withdrawn vide the Finance Act, 2007. The contents of subsection (3) of section 193-A of the Customs Act, 1969 before and after amendment vide the Finance Act, 2007 are as under:--

Section 193-A(3) substituted by the Finance Act, 2007. Before substitution 193-A(3) was as under:--

"(3)The Collector (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit, confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such direction as he may think fit (for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary:"

Section 193-A(3) after the Finance Act, 2007:--

"(3) The Collector (Appeals) may, after making such further inquiry as may be necessary pass an order, within [one hundred and twenty days from the date of filing of appeal or within such extended period as the Collector (Appeals) may for reasons to be recorded in writing, extend, confirm, modify or annul the decision or order appeal against:"

Thus, the Collector (Appeals) has remanded the case back to the Collectorate for re-adjudication in utter violation of section 193-A(3) of the Customs Act, 1969.

5.Heard. Record perused.

6.We have carefully considered the submissions made by the learned counsel on both the sides. In the instant case the provisional assessment was finalized vide Director General's Valuation Letter No.1/12/2010-VIII B/3846 date 07.10.2010. However not being satisfied the decision of the Adjudicating Authority the appellant preferred an appeal to Collector (Appeals).

7.The Collector (Appeals) set-aside the order of the Adjudicating Authority and remanded case back to the Adjudicating Authority for finalizing the value strictly in terms of Section 25 of the Customs Act, 1969.

8.In the memo of appeal before this Tribunal the appellant pointed out amendment in Section 193-A(3) as already highlighted in para-4 (v) above. A perusal of this amendment reveals that the powers of remanding back the appeal to the adjudicating authority by Collector Appeals had been taken away in the Finance Act, 2007. This being the case the appeal is accepted and valuation is to be finalized keeping in view Director General's Letter No. 1/12/2010-VIII B/3816 date 07.10.2010. The appeal is accepted. It is further added that the respondent never attended the hearing proceedings in the Tribunal showing complete disinterest.

9.Upshot of the above discussion is that the instant customs appeal is accepted.

10.Parties be informed through registered post A.D or by UMS.

11.File be consigned to record after completion.

HBT/145/Tax(Trib.) Appeal accepted.