EAGLE INDUSTRIES (PVT.) LTD. VS FEDERATION OF PAKISTAN, through Secretary, Revenue Division Islamabad, 2017 PTD-ISLAMABAD 361 (2015)

Customs Act (IV of 1969)---

----S. 25-D---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Clearance of goods---Delay in assessment---Factual controversy---Petitioner imported goods in question which were cleared after provisional assessment---Petitioner was aggrieved of delay in finalizing assessment of goods in question---Validity---Petitioner could have filed review petition against valuation ruling as per S. 25-D of Customs Act, 1969 which he did not avail and filed Constitutional petition---Petitioner could not accuse authorities of any delay in finalizing the issue---Authorities provided by the petitioner opportunity of hearing and petitioner himself submitted cheques as guarantee---Petitioner had knowledge of reservations of authorities on his declared value---High Court, under constitutional jurisdiction could not sit as a Court of inquiry to determine factual controversy---No admitted facts and figures were available before High Court about actual valuation of the consignment and value declared by petitioner---High Court, in circumstances, could not determine the actual value---Interference was declined by High Court---Constitutional petition was dismissed in circumstances.

Messrs S.Fazal Elahi and Sons v. Deputy Collector 2007 PTD 2119; Messrs Crescent Art Fabric v. Assistant Collector Customs 2011 PTD 2851; Messrs Farooq Woolen Mill v. Collector of Customs 2004 PTD 795; SUS-Motors v. Federation of Pakistan 2011 PTD 235 and Messrs Toyo International v. Federation Pakistan 2008 PTD 1494 ref.

Raza Ahmed Cheema for Petitioner.

Reehan Seerat and M. Tahir Khan, MCC, IBD for Respondents.

Date of hearing: 15th December, 2015.

JUDGMENT

SHAUKAT AZIZ SIDDIQUI, J.---Petitioner has invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 whereby he has challenged letter dated 27.4.2012, issued by the respondent No.4; further praying that the respondents Nos.3 and 4 be directed to return the security of the petitioner.

2.The relevant facts are that the petitioner is private limited company engaged in manufacturing/assembling 70-CC motorcycles and Rickshaws. That the petitioner imported 12x consignment of raw material etc. from China and on arrival of said consignment it submitted GDs detailed in-Para-No. 3 of the writ petition for clearance where after the goods were examined and were found to be in-accordance with declaration of the petitioner; however at the time of assessment of customs duty, the transaction value was not accepted and it was enhanced on the basis of valuation letter dated 27.9.2006, issued by the respondent No. 2 in terms of section-25(a) of the Customs Act, 1969. Being dissatisfied the petitioner filed Writ Petition No.209/2008 in the Hon'ble Lahore High Court. The said writ petition was allowed and the matter was remanded for reassessment under section 25 of the Customs Act, 1969.

3.Subsequently, respondent No.2 assessed the values of the imported goods vide revised valuation advise dated 14.01.2009 and finalized the provisional assessment and directed the petitioner to deposit differential amount. Petitioner challenged the said assessment and ultimately he filed Writ Petition No.724/2009 and later on withdrew the said petition on 29.6.2009 and filed a fresh Petition No.1204/2009 in which this court issued the injunctive order on 27.7.2009. The said writ was transferred to Lahore High Court and again it was sent to this court and was renumbered as 2149/2009. This court disposed of the said writ petition vide order dated 15.3.2012 whereby the Deputy Collector, Islamabad Dry-Port was directed to confront the petitioner with the allegations, to provide him opportunity of hearing and then to pass an appropriate order in terms of order dated 27.07.2009.

4.That on 14.4.2012 and 25.4.2012 the petitioner appeared before respondent No.4, who neither confronted the petitioner with the allegations under Rule 107-A of the Customs Rules, 2001 nor informed the petitioner in writing about his reservations on the declaration of the petitioner under section 25(4) of the Customs Act, 1969. Respondent No.4 rejected the transaction value declared by the petitioner and asked him to deposit the disputed amount through the impugned letter dated 27.4.2012.

5.Learned counsel for petitioner has argued that the respondents never doubted the import documents of the petitioner, therefore the rejection of transaction value is unjustified and illegal; that the respondent No.4 did not inform the petitioner of his reservation on the declared value in terms of section 25(4) of the Customs Act, 1969 and did not confront the petitioner with the alleged allegations under Rule 107-A of Customs Rules, 2001 and if the respondent No.4 had any doubt about the import documents he had to inform the petitioner in writing under Rule 109 of Customs Rules, 2001 but without meeting the statutory requirements the respondent No.4 passed the impugned order which is not sustainable in law. In support of his contention learned counsel for petitioner has relied upon the reported judgments in the case of Messrs S.Fazal Elahi and Sons v. Deputy Collector (2007 PTD 2119), Messrs Crescent Art Fabric v. Assistant Collector Customs (2011 PTD 2851), Messrs Farooq Woolen Mill v. Collector of Customs (2004 PTD 795), SUS-Motors v. Federation of Pakistan (2011 PTD 235) and Messrs Toyo International v. Federation Pakistan (2008-PTD-1494).

6.Conversely learned counsel for respondents Nos.3 and 4 submitted the Para wise comments and the learned counsel has argued that the writ petition is not maintainable as the petitioner did not avail the remedy of review provided under the Customs Act, 1969. It is further argued that at every stage of the assessment and especially in the light of injunction order dated 27.7.2009, issued by this Hon'ble Court in W.P. No. 1204/2009 the petitioner was provided the opportunity of hearing and the assessment has been made strictly in accordance with law.

I have considered the respective contentions, have also benefited myself from the case law relied by the learned counsel for the parties and have also perused the available material.

7.It is admitted between the parties that the petitioner had filed CDs for the clearance of his imported goods but the respondents did not accept the transaction value declared by the petitioner, however the respondents cleared the consignments provisionally under section 81 of the Customs Act, 1969 and it sent the reference to the Directorate General of Customs Valuation, Customs House-Karachi for fair and normal value. The petitioner filed a Writ Petition No. 209/2008 in the Hon'ble Lahore High Court, Lahore and the Hon'ble Court remanded the matter for reassessment and the respondents revised valuation advise dated 25.3.2009 and issued notices (annexure-B-1 to B-12). The petitioner responded the said notices by dispatching the letters (Annexure C-1 to C-11) and it filed W.P. No. 724/2009 in the Hon'ble Lahore High Court and then after withdrawing the said writ petition he filed Writ Petition No.1204/2009 in this court which was ultimately-disposed of on 15.3.2012 whereby Deputy Collector Customs was directed to confront the allegations to the petitioner; to provide him the opportunity of hearing and thereafter passed an appropriate order. In view of the above direction of this court, the respondent No. 4 declared the provisional determination as final determination and directed the petitioner to deposit an amount of Rs.24,608,160/- as custom duty and other taxes.

8.Having narrated the history of previous litigation, it is observed that subsection (4) of section 81 of the Customs Act, 1969 provides that if the final assessment is not completed within the statutory period; then the provisional assessment should become final. This contingency has been provided to safeguard the benefit of an assessee to save him from unnecessary harassment by the custom authorities. In the case of Messrs Fazal Elahi and Sons v. Deputy Collector Customs (2007 PTD 2119) the Hon'ble Lahore High Court observed that Section 25(4) of the Customs Act, 1969 casts a duty on the taxing officer to demand proof or documents from an importer in respect of which collaboration or clarification is required and this duty is re-enforced by the provisions of Rule-109 of the Customs Rules, 2001. The said judgment of Hon'ble Lahore High Court was maintained by the august Supreme Court of Pakistan. However, in the case in hand, the petitioner filed a Writ Petition No.209/2008, in the Hon'ble Lahore High Court against the valuation letter dated 27.9.2006 and the matter was remanded for re-assessment. In the light of the direction of Hon'ble Lahore High Court, the Director General of Customs Valuation, Karachi issued revised valuation advise on 14.01.2009 and the demand was conveyed to the petitioner on 26.3.2009. Thereafter the petitioner filed another writ petition which was disposed of by this court on 15.3.2012 with the direction to Deputy Collector Customs to confront the petitioner with the allegations and provide him the opportunity of hearing and to resolve the matter. Thereafter, the respondents through the impugned order dated 27.4.2012 confirmed the provisional determination as the final determination. There is no substance in the plea that the petitioner was not informed in writing, of the reservation, on his declared value and the allegation was not confronted to him as the petitioner has remained associated in the entire proceedings.

9.The petitioner could have filed the review petition against the valuation ruling as per section 25-D of the Customs Act, 1969 but he did not avail the opportunity of review and he filed the writ petition. The facts of writ petition in hand are not at par to the facts mentioned in the reported judgments as in the case in hand the petitioner cannot accuse the respondents of any delay in finalizing the issue. The respondents provided him the opportunity of hearing and petitioner himself submitted the cheques as guarantee, meaning thereby that he was having the knowledge of reservation of the respondents on his declared value. It is trite law that in the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, this court cannot sit on as a court of inquiry to determine the factual controversy and there are no admitted facts and figures before this court about the actual valuation of the consignment and the value declared by the petitioner therefore this court cannot determine the actual value. The respondents had provided the opportunity of hearing to the petitioner under the direction of this court issued in W.P. No.2149 of 2009.

In view of the above analysis of the admitted facts and law on the subject, the instant writ petition is hereby dismissed.

MH/141/Isl Petition dismissed.