PAK INTERNATIONAL VS DEPUTY COLLECTOR OF CUSTOMS, 2019 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 834 (2019)

2019 P T D (Trib.) 834

[Custom Appellate Tribunal]

Before Muhammad Nazim Saleem, Member Technical-II

Messrs PAK INTERNATIONAL

Versus

DEPUTY COLLECTOR OF CUSTOMS and another

CustomsAppealNo. K-1073of2016,decidedon3rdNovember,2017.

Customs Act (IV of 1969)---

----Ss. 25, 32 & 79---Mis-declaration---Declaration of home consumed goods under self-assessment system in terms of S.79 of the Customs Act, 1969---Said declaration was processed under first appraisement system; goods were re-assessed in presence of staff of Collectorate's Intelligence Unit---In view of variation in both the examination reports, goods were re-examined in the presence of Additional Collector of Customs---Facts on record depicted that the importer, had willfully and deliberately mis-declared the description and PCT heading; some undeclared items were also detected; besides, excess weight of goods was found in order to evade payment of duty and taxes---Adjudicating official vide order-in-original, held that the charges against the importer were established---Stance taken by the importer was that it was a case of "Tripple Jeopardy" as department had thrice examined his consignment and thrice assessed the same customs duty and taxes; that consignment was allowed "out of charge" by the customs authorities, but after that authorities blocked the consignment by instructing the Terminal Incharge of the Port; that goods having been allowed "out of charge" by the Customs Officers, it was a past and closed transaction; that department was not legally authorized to re-examine the consignment and re-assess the same to duty and taxes and that only option left with the department was to file appeal against the assessment order---Validity---Consignment, though was allowed "out of charge" but it had not left the port premises due to the reason that the customs authorities had put the consignment under 'hold' in the automated system of 'WeBOC'---On the issue of mis-declaration of weight, the importer had not been able to putforth any convincing ground in the defence---Final examination having been carried out under the personal supervision of a senior officer of Customs, no ground existed at all to cast any doubt on the intention of the said officer---Provisions of Customs Act, 1969, were unambiguously applicable for collection, payment and recovery of short levied/short paid amount of sales tax---Customs Officers, were fully competent to, not only collect sales tax at import stage, but also to make recovery of the short-levied/short-paid amount and were also competent to invoke relevant provision of the Sales Tax Act, 1990 and Income Tax Ordinance, 2001---No ground existed to interfere with the impugned order-in-original, same was held to be a lawful order.

[Case law referred].

Nadeem Ahmed Mirza and Mirza Abeer for Appellant.

Abdul Rasheed, Principal Appraiser for Respondents.

Date of hearing: 11th July, 2017.

JUDGMENT

MUHAMMAD NAZIM SALEEM, MEMBER TECHNICAL-II.---This judgment disposes of Customs Appeal No.K-1073 of 2016 filed by the Appellant against Order-in-Original No.491868 dated 08.03.2016, passed by the Additional Collector of Customs (Adjudication-I), Custom House, Karachi.

2.Brief facts of the case as reported in the order-in-original, are that the Appellant/Importer Messrs Pak International (NTN:0690982), imported a consignment vide IGM No.550/2015 dated 13.11.2015 Index No.117. The Appellant/importer filed home consumption G.D. No.KPPI-HC-26381 dated 17.11.2015 under self-assessment system in terms of section 79(1) of the Customs Act, 1969 by declaring the goods as follows:--

i.CADBURY CHOCOLATE 180 and 185 GM (66 CTNS), Qty:101.79 Kg

ii.CADBURY CHOCOLATE ABOVE 300 GM (80 CTNS), Qty: 159.24Kg

iii.TOBLERONE CHOCOLATE (22 CTNS), Qty: 33 Kg

iv.LOW SUGAR ASSORTED (132 CTNS), Qty: 28.80 Kg

v.WHISKAS CAT FOOD (1,330 CTNS), Qty: 4,422.24 Kg

vi.BABY WIPES ASSORTED (608 CTNS), 760.32 Kg

vii.SANITARY PADS (42 CTNS), Qty: 25.20 Kg

viii.SHOE POLISH (116 CTNS), Qty: 34.80 Kg

ix.BABY OIL (240 CTNS), Qty: 288 Kg

x.CHERRY FAVOURED DRINK (26 CTNS), Qty 39 Kg

xi.CANDY ASSORTED (624 CTNS), Qty: 1,322.122 Kg

xii.BISCUIT ASSORTED (406 CTNS), Qty: 902.30 Kg

xiii.CEREAL ASSORTED (238 CTNS, Qty: 501.60 Kg

xiv.GREEN WATER (190 CTNS), Qty: 1564.20 L

xv.COKE DRINK (40 CTNS). Qty: 316.80 Kg

xvi.FLAVOURED MILK (112 CTNS), Qty: 504 Kg

xvii.CHOCO SPREAD (20 CTNS), Qty: 48 Kg

xviii. HELLMMAYONAISE (93 CTNS), Qty: 186 Kg

xix.TOMATO KETCHUP (72 CTNS), Qty. 246.24 Kg

xx.HEINZ S/CREAM (100 CTNS), Qty: 138 Kg

xxi.RAGU SAUCE (56 CTNS), Qty: 168 Kg

xxii.BABY FOOD (351 CTNS), Qty: 263.25 Kg

xxiii. BABY MILK (91 CTNS), Qty: 491.40 Kg

xxiv. CHOCOLATE ASSORTED (422 CTNS), Qty: 617.10 Kg

xxv.TOOTH PASTE ASSORTED (175 CTNS), Qty: 261 Kg

xxvi. MIWASH ASSORTED (364 CTNS), Qty. 897.60 Kg

xxvii. BODY WASH ASSORTED (240 CTNS), Qty: 360 Kg

xxviii. CREAM AND LOTION ASSORTED (772 CTNS), Qty: 1,022.052 Kg

3.The GD was processed under 1st Appraisement system and upon examination, the shed staff reported as follows:--

EXAMINED THE GOODS ON THE BASIS OF G.D RETRIVED FROM SYSTEM. DESCRIPTION OF GOODS. (1) CADBURY CHOCOLATE. (I) CADBURY MILK CHOCOLATE TRAY 180 GM X 8 TRAY X 36 CTN = 51.84 KGS. (II) CAD HEROES CHOCOLATE 185 GM X 9 TRAY X 30 CTN = 49.95 KGS. (2) CADBURY CHOCOLATE ABOVE 300 GRAMS. (I) CADBURY CHOCOLATE 360 GM X 6 PACK X 20 CTN = 43.20 KGS. (II) CADBURY HEROES CHOCOLATE 323 GM X 6 TRAY X 40 CTN = 77.52 KGS. (III) CADBURY ROSES CHOCOLATE 321 GM X 6 TRAY X 20 CTN = 38.52 KGS. (3) TOBLERONE CHOCOLATE BAR 60 GM X 25 PCS X 22 CTN = 33.00 KGS. (4) LOW SUGAR ASSORTED. (I) RED LOW SUGAR CANDRELA 10 GM X 12 PACK X 78 CTN = 9.36 KGS. (II) SPLEN LOW SUGAR 60 GM X 6 PACK X 54 CTN = 19.44 KGS. (5) WHISKAS CAT FOOD. (I) WHISKAS CAT FOOD DRY 340 GM X 6 BOXES X 224 CTN = 456.96 KGS. (II) WHISKAS CAT FOOD 85 GM X 28 POUCH X 120 CTN = 285.60 KGS. (III) WHISKAS CAT FOOD 100 GM X 24 POUCH X 410 CTN = 984.00 KGS (IV) WHISKAS CAT FOOD 390 GM X 12 POUCH X 576 CTN = 2695.68 KGS. (6) BABY WIPES ASSORTED. (I) HUGG BABY WIPES 120 GM X 10 PACK X 480 CTN = 576.00 KGS. PAMPER BABY WIPES 120 GM X 12 POUCH X 128 CTN = 184.32 KGS. (7) SANITARY LADIES PADS 50 GM X 12 PACK X 42 CTN = 25.20 KGS (8) CHERRY BLOSOM SHOE POLISH SHINE 50 GM X 6 PACK X 116 CTN = 34.80 KGS. (9) BABY OIL 300 ML X 6 BOTTLE X 240 CTN = 432.00 KGS. (10) CHERRY DRINK VIMTO FIZZY 250 ML X 6 BOTTLE X 26 CTN = 39.00 KGS. (11) CANDY ASSORTED. (I) FROZEN CHOCOLATE 68 GM X 24 BAG X 30 CTN = 48.96 KGS. (II) FROZEN CHOCOLATE 70 GM X 15 PCS X 25 CTN = 26.25 KGS. (III) MINSTRELS CANDY 105 GM X 16 PACK X 80 CTN = 134.40 KGS. (IV) SMARTIES CANDY 152 GM X 12 BOXES X 48 CTN = 87.55 KGS. (V) ASHLEY MINT 200 GM X 24 BOXES X 30 CTN = 144.00 KGS. (VI) ECLAIRS CHOCALATE 166 GM X 10 BAG X 166 CTN = 275.56 KGS. (VII) CHUPS CANDY STICK 140 GM X 24 STICK X 30 CTN = 100.80 KGS. (VIII) CHUPS CANDY STICK 150 GM X 24 STICK X 30 CTN = 108.00 KGS. (IX) WERTHERS CHOCOLATE 100 GM X 15 BAG X 40 CTN = 60.00 KGS. (X) WERTHER CHOCOLATE 135 GM X 15 BAG X 40 CTN = 81.00 KGS. (XI) WERTHERS CHOCOLATE 137 GM X 24 BAG X 105 CTN = 345.2400 KGS. (12) BISCUIT ASSORTED. (I) TIMEOUT WAFER BISCUIT 120 GM X 12 PACK X 50 CTN = 72.00 KGS. (II) RITTER CHOCOLATE BISCUIT 100 GM X 5 PACK X 160 CTN = 80.00 KGS. (III) MILK BISCUIT 300 GM X 12 PCS X 75 CTN = 270.00 KGS. (IV) GULLON/SHORTIES BISCUIT 125 GM X 12 PACK X 9 CTN = 13.50 KGS. (V) GULLON/SUGAR FREE BISCUIT 210 GM X 12 PACK X 30 CTN = 75.60 KGS. (VI) GULLON/ SUGAR FREE BISCUIT 400 GM X 15 PACK X 4040 CTN = 240.00 KGS. (VII) DIGESTIVE BISCUIT 300 GM X 12 TUBE X 42 CTN = 151.20 KGS (13) CEREAL ASSOTED. (I) COCO B CEREAL 295 GM X 5 BOXES X 60 CTN = 88.50 KGS (II) COCO B/CEREAL 220 GM X 10 BAG X 11 CTN = 24.20 KGS (III) LOOPS B/CEREAL 240 GM X 10 PACK X 36 CTN = 86.40 KGS (IV) HONEY B/CEREAL 250 GM X 10 BAG X 31 CTN = 77.50 KGS (V) NESTLE COOKIES CEREAL 375 GM X 6 BOXES X 100 CTN = 225 KGS (14) GREEN WATER. (I) GREEN WATER PERRIER MINERAL WATER 330 ML X 24 TIN X 135 CTN = 1069.20 KGS (II) GREEN WATER PERRIER MINERAL WATER 750 ML X 12 TIN X 55 CTN = 495.00 KGS NOT FOUND (15) COKE DRINK. (I) COKE SOFT DRINK CAN 330 ML X 24 CAN X 40 CTN = 316.80 KGS (16) FLAVOURED MILK/ GLAXY SMOOTH MILK 750 ML X 6 BOTTLE X 112 CTN = 504.00 KGS (17) CHOCO CHOCOLATE SPREAD 400 GM X 6 JAR X 20 CTN = 48.00 KGS (18) HELLM MAYONNAISE 250 ML X 8 BOTTLE X 93 CTN = 186.00 KGS (19) TOMATO KETCHUP 342 GM X 10 BOTTLE X 72 CTN = 246.24 KGS (20) HEINZ SALAD CREAM 460 GM X 3 BOTTLE X 100 CTN = 138.00 KGS (21) RAGULINO SAUCE 500 GM X 6 JAR X 56 CTN = 168.00 KGS (22) BABY FOOD COW AND GATE 125 GM X 6 PACK X 351 CTN = 263.25 KGS (23) BABY MILK SMA TOLDER MILK 900 ML X 6 JAR X 91 CTN = 491.40 KGS (24) CHOCOLATE ASSORTED (I) BOURNVILLE CHOCOLATE 100 GM X 18 PACK X 50 CTN = 90.00 KGS (II) TWIRL CHOCOLATE 102 GM X 12 PACK X 160 CTN = 195.84 KGS (III) CARAMEL CHOCOLATE 117 GM X 15 PACK X 52 CTN = 91.26 KGS (IV) NESTLE CHOCOLATE BAR 100 GM X 15 PACK X 40 CTN = 60.00 KGS (V) LIFESTYLE CHOCOLATE BAR 100 GM X 15 BAR X 120 CTN = 180.00 KGS (25) TOOTH PASTE ASSORTED (I) AQUA TOOTH PASTE 100 ML X 12 TUBE X 90 CTN = 108.00 KGS (II) ORIGINAL TOOTH PASTE 75 ML X 12 TUBE X 45 CTN = 40.50 KGS (III) SIGNAL TOOTH PASTE 75 ML X 24 TUBE X 40 CTN = 72.00 KGS (26) MOUTH WASH ASSORTED (I) PLAX M/WASH 250 ML X 6 BOTTLE X 104 CTN = 156.00 KGS (II) ORIGINAL MOUTH /WASH 250 ML X 6 BOTTLE X 52 CTN = 78.00 KGS (III) ORIGINAL MOUTH /WASH 500 ML X 6 BOTTLE X 72 CTN = 216.00 KGS (IV) ORAL SENSITIVE MOUTH WASH 300 ML X 12 BOTTLE X 66 CTN = 237.60 KGS (V) ORAL MOUTH WASH 500 ML X 6 BOTTLE X 70 CTN = 210.00 KGS (27) SOFT BODY WASH SHOWER CREAM 250 ML X 6 PACK X 240 CTN = 360.00 KGS (28) CREAM AND LOTION ASSORTED (I) DOVE HAND CREAM 75 ML X 6 PACK X 90 CTN = 40.50 KGS (II) MOISTURE LOTION 250 ML X 12 PACK X 49 CTN = 147.00 KGS (III) JOHNSON BABY LOTION 500 ML X 6 BOTTLE X 90 CTN = 270.00 KGS (IV) VESLIAN INTENSIVE LOTION 200 ML X 6 PACK X 178 CTN = 213.60 KGS (V) VESLIAN INTENSIVE LOTION COCA RADIANT BODY LOTION 400 ML X 6 PACK X 142 CTN = 340.80 KGS (VI) MULTI CREAM 4.5 GM X 12 PACK X 153 CTN = 8.26 KGS (VII) MULTI CREAM 4.5 GM X 6 PACK X 70 CTN = 1.89 KGS.BRANDS: CADBURY, TOBLERONE, CANDLE, SMARTIES, FROZEN, CHERRY, MINSTRELSNESTLEANDAQUA, ETC. I/OU.S.A, SPAIN U.K, ITALY,TURKEY, BELGIUM, E.U. ETC. SHELF LIFE CONFORMED MORE THAN 50% OF ALL ITEMS. CHECKED WEIGHT 100% VIDE QICT WEIGHT SLIP NO 2947371 DATED 18/11/2015 AND FOUND WEIGHT 21060 KGS. GROUP TO CHECK PCT, VALUE AND ALL OTHER ASPECTS. IMAGES ARE ATTACHED/WEIGHT SLIP ALSO SCAN ANDATTACHED WITH REPORT.

4.Information was received that some importers are mis-declaring the description, PCT heading and quantity of chocolates and candy items. Therefore, the goods were re-examined on 02.12.2015 in presence of staff of Collectorate's Intelligence Unit. Second Examination Report is as under:--

RE-EXAMINED IN ASSOCIATION WITH C.I.U. AND THE REPORT PROVIDED IS AS UNDER: 1). CHOCOLATE MILK TRAY, 08 PCS / CTN X 180 GRM EACH X 36 CTNS, WEIGHT WITHOUT PACKING 51.84 KGS, WEIGHT WITH PACKING 57.6 KGS, BRAND: CADBURY, I/O: U.K. EXP.DT: 18.05.2016. 2). HEROES CHOCOLATE 90 PCS / CTN X 185 GRM EACH X 30 CTNS, WEIGHT WITHOUT PACKING 49.95 KGS, WEIGHT WITH PACKING 54 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 31.03.2016. 3). CHOCOLATE MILK TRAY 06 PCS / CTN X 360 GRM EACH X 20 CTNS, WEIGHT WITHOUT PACKING 43.2 KGS, WEIGHT PACKING 60 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 27.03.2016. 4). HEROES CHOCOLATE 06 PCS / CTN X 323 GRMS X 40 CTNS, WEIGHT WITHOUT PACKING 77.52 KGS WEIGHT WITH PACKING 92 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 31.03.2016. 5). CHOCOLATE (SWISS MILK) CHOCOLATE WITH HONEY AND ALMOND 25 PCS / CTN X 60 GRM X 22 CTNS WEIGHT WITHOUT PACKING 33 KGS, WEIGHT WITH PACKING 37.4 KGS, BRAND: TOBLECONE, I/O: SWITZERLAND, EXP.DT: 13.07.2016. 6). SUGAR FREE TABLETS (105 TABLETS) 12 PACK / CTN X 8.93 GRM X 78 CTNS, WEIGHT WITHOUT PACKING 8.36 KGS, WEIGHT WITH PACKING 31.2 KGS, BRAND: CANDERAL, I/O: U.K, EXP. DT: 05.01.2018. 7). SUGAR ALTERNATIVE GRANULATED 06 PCS / CTN X 60 GRM EACH X 54 CTNS, WEIGHT WITHOUT PACKING 19.44 KGS, WEIGHT WITH PACKING 37.8 KGS, BRAND: SPLENDA, EXP.DT: 03.01.2018. 8). COMPLETE PET FOOD FOR ADULT CATS WITH TROUT IN JELLY (TIN PACK), 12 TINS / CTN X 390 GRM EACH X 576 CTNS WEIGHT WITHOUT PACKING 2695.68 KGS WEIGHT WITH PACKING 3052.6 KGS, BRAND: WHISCAS, I/O: U.K, EXP.DT: 01.07.2017. 9). COMPLETE PET FOOD FOR ADULT CATS WITH BEEF, 06 PCS / CTN X 340 GRM EACH X 224 CTN WEIGHT WITHOUT PACKING 456.96 KGS, WEIGHT WITH PACKING 537.6 KGS, BRAND: WHISCAS, I/O: U.K, EXP.DT: 04.08.2016. 10). COMPLETE PET FOOD FOR ADULT CATS WITH TUNA COMPOSITION, 24 PCS / CTN X 100 GRM EACH X 410 CTNS WEIGHT WITHOUT PACKING 984 KGS, WEIGHT WITH PACKING 1025 KGA, BRAND: WHISCAS, I/O: U.K, EXP.DT: 14.08.2017. 11). COMPLETE PET FOOD FOR ADULT CATS WITH STEAMED AND SALUROM, 28 PCS / CTN X 85 GRM EACH X 120 CTNS, WEIGHT WITHOUT PACKING 285.6 KGS WEIGHT WITH PACKING 324 KGS, BRAND: WHISCAS, I/O: U.K, EXP.DT: 10.08.2017. 12). BABY WIPES 16.1 CM X 17.5 CM SENSITIVE, 12 PCS / CTN X 477 GRM EACH X 128 CTNS, WEIGHT WITHOUT PACKING 732.67 KGS, WEIGHT WITH PACKING 768 KGS, BRAND: PAMPERS, I/O: GERMANY, P.DT: 21.02.2015, EXP.DT: 20.08.2017. 13). BABY WIPES 16.1 CM X 17.5 (56 PCS / PACKET), 10 PKT / CTN X 320 GRM EACH X 480 CTNS, WEIGHT WITHOUT PACKING 1536 KGS, WEIGHT WITH PACKING 1680 KGS, BRAND: HUGGIES, I/O: U.K, EXP.DT: 3.2018. 14). SANITARY PADS (LINE) 35 NORMAL, 12 PCS / CTN X 81 GRM EACH X 42 CTNS, WEIGHT WITHOUT PACKING 40.82 KGS, WEITH WITH PACKING 50.4 KGS, BRAND: KATEX, I/O: U.K. 15). HANDY SHINE INSTANT SHOE SHINEE, 06 PCS / CTN X 35 GRM EACH X 116 CTNS, WEIGHT WITHOUT PACKING 24.36 KGS. WEIGHT WITH PACKING 27.84 KGS. BRAND: CHERRY BLOSSOM, I/O: TURKEY 16). JOHNSON BABY OIL 06 BOTTLE / CTN X 300 ML EACH X 240 CTNS, WEIGHT WITHOUT PACKING 432 KGS, WEIGHT WITH PACKING 576 KGS, BRAND: JOHNSON AND JOHNSON, I/O: TURKEY. 17) FIZZY MIXED FRUIT JUICE DRINK 24 PCS / CTN X 250 GRM EACH X 26 CTSN, WEITH WITHOUT PACKING 156 KGS, WEIGHT WITH PACKING 195 KGS, BRAND: VINTO, I/O: U.K, EXP.DT: 05.01.2016. 18). CHOCOLATE OLAFS 24 PCS / CTN X 68 GRM X 30 CTNS, WEIGHT WITHOUT PACKING 48.96 GKS, WEIGHT WITH PACKING 57 KGS, BRAND: DISNEY, I/O: U.K, EXP.DT. 01.08.2016. 19). MINSTREL (CHOCOLATE CAPTURED IN CRISPY SHELLS) 16 PCS / CTN X 105 GRM X 80 CTNS, WEIGHT WITHOUT PACKING 134.4 KGS, WEIGHT WITH PACKING 152 KGS, BRAND: GALAXY, I/O: U.K, EXP.DT: 24.07.2016. 20). SMARTIES (MILKY CHOCOLATE IN CRISPY SUGAR SHELL (4 TUBE PCK), 12 PCS / CTN X 152 GRM EACH X 48 CTNS, WEIGHT WITHOUT PACKING 87.55 KGS, WEIGHT WITH PACKING 105.6 KGS, BRAND: NESTLE, I/O: U.K, EXP.DT: 04.01.2016. 21). MINT THINS (CHOCOLATE FLAVOUR THIN WITH A MINT TRUFFLE FILLING), 24 PCS / CTN X 200 GRM EACH X 30 CTNS, WEIGHT WITHOUT PACKING 144 KGS, WEIGHT WITH PACKING 168 KGS, BRAND: AISHLEY, I/O: U.K, EXP.DT: 30.09.2016. 22). ECLAIRS (MILK CHOCOLATE ENCASED IN A CHEWY CARAMEL, 10 PCS / CTN X 166 GRM EACH X 166 CTNS, WEIGHT WITHOUT PACKING 275.56 KGS, WEIGHT WITH PACKING 315.4 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 13.05.2016. 23). ASSORTED FLAVOUR MINI LOLLY POPS (25 PCS), 24 PCK / CTN X 150 GRM EACH X 30 CTNS, WEIGHT WITHOUT PACKING 108 KGS, WEIGHT WITH PACKING 141 KGS, BRAND: CHAPS, I/O: SPAIN, EXP.DT: 07.01.2016. 24). ASSORTED FLAVOUR MINI LOLLY POPS (14 PCS / PACK), 24 PCK/ CTN X 168 GRM EACH X 30 CTNS, WEIGHT WITHOUT PACKING 120.96 KGS, WEIGHT WITH PACKING 150 KGS, BRAND: CHAPS, I/O: 07.01.2018. 25). WERTHER ORIGINAL (CARAMEL FUDGE COVERED IN SMOOTH MILK CHOCOLATE), 15 PCS / CTN X 100 GRM X 40 CTNS. WEIGHT WITHOUT PACKING 60 KGS, WEIGHT WITH PACKING 76 KGS, BRAND: STORCH, I/O: GERMANY, EXP.DT: 05.01.2016. 26). WERTHER ORIGINAL (BUTTER CANDIES FILLED WITH SMOOTH CARAMEL CREAM), 24 PCS / CTN X 137.5 GRM EACH X 105 CTNS, WEIGHT WITHOUT PACKING 346.5 KGS, WEIGHT WITH PACKING 378 KGS, BRAND: STORCH, I/O: GERMANY, EXP.DT: 05.01.2016. 27). WERTHER ORIGINAL (CHEWY ECLAIRS CHOCO CREAM FILLED CHEWY TOFFIES), 15 PCS / CTN X 135 GRM EACH X 40 CTNS, WEIGHT WITHOUT PACKING 81 KGS, WEIGHT WITH PACKING 100 KGS, BRAND: STORCH, I/O: GERMANY, EXP.DT: 06.01.2016. 28). QUALITY CHOCOLATE SQUARED (MERZIPAN), 16 PCS/CTN X 500 GRM EACH X 10 CTNS, WEIGHT WITHOUT PACKING 80 KGS, WEIGHT WITH PACKING 80 KGS, BRAND: RITTER SPORT, I/O: GERMANY, EXP.DT: 11.06.2016. 29). SHORTIES (SHORT CAKE BISCUIT HALF COVERED WITH MILK CHOCOLATE) 12 PCS / CTN X 300 GRM EACH X 75 CTNS, WEIGHT WITHOUT PACKING 270 KGS, WEIGHT WITH PACKING 285 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 14.05.2016. 30). SUGAR FREE VANILA FALVOUR WAFER, 12 PCK / CTN X 210 GRM EACH X 30 CTNS, WEIGHT WITHOUT PACKING 75.6 KGS, WEIGHT WITH PACKING 84 KGS, BRAND: GULLON, I/O: SPAIN, EXP.DT: 07.05.2016. 31). SUGAR FREE DIGESTIVE BISCUITS, 15 PCK / CTN X 400 GRM EACH X 40 CTNS, WEIGHT WITHOUT PACKING 240 KGS, WEIGHT WITH PACKING 260 KGS, BRAND: GULLON, I/O: SPAIN P.DT: 15.05.2015, EXP.DT: 15.08.2016. 32). DIGESTIVE BISCUITS 12 PCK / CTN X 300 GRM EACH X 42 CTNS, WEIGHT WITHOUT PACKING 151.2 KGS, WEIGHT WITH PACKING 189 KGS, BRAND: MEVITIES, I/O: U.K, EXP.DT: 03.04.2016. 33). COCO POPS FREE SEED HEADS (CEREAL) 05 PCS / CTN X 295 GRM X 60 CTNS, WEIGHT WITHOUT PACKING 88.5 KGS, WEIGHT WITH PACKING 114 KGS, BRAND: KELLOGS, I/O: U.K, EXP.DT: 29.06.2016. 34). CRISPY CHOCOLATE MAIZE CEREAL JAMBOO, 10 PCS / CTN X 220 GRM EACH X 11 CTNS, WEIGHT WITHOUT PACKING 24.2 KGS, WEIGHT WITH PACKING 29.7 KGS, BRAND: KELLOGS, I/O: U.K, EXP.DT: 08.07.2016. 35). CRISPY CHOCOLATE WHEAT CEREAL, 10 PCS / CTN X 240 GRM EACH X 36 CTSN, WEIGHT WITHOUT PACKING 86.4 KGS, WEIGHT WITH PACKING 104.4 KGS, BRAND: KELLOGS, I/O: U.K, EXP.DT: 06.07.2016. 36). HONEY HOOPLA (MIXED WHOLE GRAIN CERAL LOOPS WITH HONEY), 10 PCS / CTN X 250 GRMS EACH X 31 CTNS, WEIGHT WITHOUT PACKING 77.5 KGS, WEIGHT WITH PACKING 89.9 KGS, BRAND: KELLOGS, I/O: U.K, EXP.DT: 10.07.2016. 37). COOKIES CRISP (COOKIE CEREAL), 06 PCS / CTN X 375 GRM EACH X 100 CTNS, WEIGHT WITHOUT PACKING 225 KGS, WEIGHT WITH PACKING 280 KGS, BRAND: NESTLE, I/O: U.K, EXP.DT: 06.01.2016. 38). NUTURAL MINERAL WATER FORTIFIED WITH GAS (CANS) 24 CANS / CTN X 330 GRM EACH X 135 CTNS, WEIGHT WITHOUT PACKING 1069.2 KGS, WEIGHT WITH PACKING 1134 KGS, BRAND: PERRIER, `I/O: EUROPE, EXP.DT: 07.07.2016. 39). SPARKLING SOFT DRINK WITH VEGETABLE EXTRACT (COKE), 24 CANS / CTN X 330 GRM EACH X 40 CTNS, WEIGHT WITHOUT PACKING 316.80 KGS, WEIGHT WITH PACKING 336 KGS, BRAND: COCA COLA, I/O: U.K, EXP.DT: 08.01.2016. 40). CHOCOLATE MILK DRINK, 06 PCS / CTN X 750 GRM EACH X 112 CTNS, WEIGHT WITHOUT PACKING 504 KGS, WEIGHT WITH PACKING 571.2 KGS, BRAND: GALAXY, I/O: NOT SHOWN, EXP.DT: 06.02.2016. 41). MILK CHOCOLATE SPREAD, 06 PCS / CTN X 400 GRM EACH X 20 CTNS, WEIGHT WITHOUT PACKING 48 KGS, WEIGHT WITH PACKING 76 KGS, BRAND: CADBURY, I/O: EUROPE, EXP.DT: 08.01.2016. 42). LIGHT MAYONAISE, 08 PCS / CTN X 250 GRM EACH X 93 CTNS, WEIGHT WITHOUT PACKING 186 KGS, WEIGHT WITH PACKING 223.2 KGS, BRAND: HELLMANNS, I/O: U.K, EXP.DT:07.01.2016. 43). TOMATO KETCHUP 10 PCS / CTN X 300 GRM EACH X 72 CTNS, WEIGHT WITHOUT PACKING 216 KGS, WEIGHT WITH PACKING 259.2 KGS, BRAND: HEINZ, I/O: U.K, EXP.DT: 01.08.2016. 44). SALAD CREAM ORIGINAL. 03 PCS / CTN X 460 GRM EACH X 100 CTNS, WEIGHT WITHOUT PACKING 138 KGS, WEIGHT WITH PACKING 160 KGS, BRAND: HEINZ, I/O: U.K, EXP.DT: 01.05.2016. 45). TRADITIONAL CHUNKY BOLOGNESE SAUCE, 06 BOTTLE / CTN X 500 GRM EACH X 56 CTNS, WEIGHT WITHOUT PACKING 168 KGS, WEIGHT WITH PACKING 240.8 KGS, BRAND: RAGULINE, I/O: HOLLAND, EXP.DT: 07.01.2017. 46). CREAMY PORRIAGE, 06 BOTTLE / CTN X 125 GRM EACH X 351 CTNS, WEIGHT WITHOUT PACKING 263.25 KGS, WEITH WITH PACKING 456.3 KGS, BRAND: COW AND GATE, I/O: NOT SHOWN, EXP.DT: 08.02.2017. 47). GROWING UP MILK, 06 PCS / CTN X 900 GRM EACH X 06 CTNS, WEIGHT WITHOUT PACKING 491.4 KGS, WEIGHT WITH PACKING 546 KGS, BRAND: COW AND GATE, I/O: EUROPE, EXP.DT: 05.11.2016. 48). BOURNVILLE CLASSIC DARY CHOCOLATE 18 PCS / CTN X 100 GRM EACH X 50 CTNS, WEIGHT WITHOUT PACKING 90 KGS, WEIGHT WITH PACKING 95 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 30.06.2016. 49). TWIST TWIN BAR CHOCOLATE, 12 PCS / CTN X 136 GRM EACH X 160 CTNS, WEIGHT WIHTOUT PACKING 261.12 KGS, WEIGHT WITH PACKING 288 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 29.07.2016. 50). DAIRY MILK CHOCOLATE, 15 PCS / CTN X 148 GRM EACH X 52 CTNS, WEIGHT 115.44 KGS, WEIGHT WITH PACKING 130 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 12.08.2016. 51). FRUIT AND NUT MILK CHOCOLATE, 15 PCS / CTN X 100 GRM EACH X 120 CTNS, WEIGHT WITHOUT PACKING 180 KGS, WEIGHT WITH PACKING 204 KGS, BRAND: LIFE STYLE, I/O: POLAND, EXP.DT: 15.07.2016. 52) WHITENING TOOTH PASTE, 12 PCS / CTN X 100 GRM EACH X 148 CTNS, WEIGHT WITHOUT PACKING 177.6 KGS, WEIGHT WITH PACKING 281.2 KGS, BRAND: AQUA FRESH, I/O: U.K, EXP.DT: 22.12.2017. 53). SMOOTH BUBBLY MILK CHOCOLATE, 15 PCS / CTN X 100 GRM EACH X 48 CTNS, WEIGHT WITHOUT PACKING 72 KGS, WEIGHT WITH PACKING 81.6 KGS, BRAND: NESTLE, I/O: U.K, EXP.DT: 05.01.2016. 54). FLOURIDE TOOTH PASTE, 12 PCS,/ CTN X 75 GRM EACH X 90 CTNS, WEIGHT WITHOUT PACKING 81 KGS, WEIGHT WITH PACKING 135 KGS, BRAND: SENSODYNE, I/O: U.K, EXP.DT: 05.05.2018. 55). ANTI TARTAR TOOTH PASTE, 24 PCS / CTN X 75 GRM EACH X 50 CTNS, WEIGHT WITHOUT PACKING 90 KGS, WEIGHT WITH PACKING 150 KGS, BRAND: SINGAL, I/O: U.K, 56). ROSES CHOCOLATE, 06 PCS / CTN X 321 GRM EACH X 20 CTNS, WEIGHT WITHOUT PACKING 38.52 KGS, WEIGHT WITH PACKING 48 KGS, BRAND: CADBURY, I/O: U.K, EXP.DT: 30.04.2016. 57). ANTI BACTERIAL MOUTH WASH, 06 BOTTLE / CTN X 250 ML EACH X 112 CTNS, WEIGHT WITHOUT PACKING 168 KGS, WEIGHT WITH PACKING 224 KGS, BRAND: COLGATE, I/O: U.K. 58). SENSITIVE MOUTH WASH, 12 BOTTLE / CTN X 300 ML EACH X 66 CTNS, WEIGHT WITHOUT PACKING 237.6 KGS, WEIGHT WITH PACKING 310.2 KGS, BRAND: ORAL-B, I/O: U.K. 59). MOUTH WASH, 06 BOTTLE / CTN X 500 ML EACH X 72 CTNS, WEIGHT WITHOUT PACKING 216 KGS, WEIGHT WITH PACKING 252 KGS, BRAND: LISTERICE, I/O: U.K. 60). MOUTH WASH FRESH MINT, 06 BOTTLE / CTN X 500 ML EACH X 70 CTNS, WEIGHT WITHOUT PACKING 210 KGS, WEIGHT WITH PACKING 245 KGS, BRAND: ORAL-B, I/O: U.K. 61). SHOWER CREAM, 06 PCS / CTN X 250 GRM EACH X 273 CTNS, WEIGHT WITHOUT PACKING 409.50 KGS, WEIGHT WITH PACKING 464.1 KGS, BRAND: NIVEA, I/O: GERMANY. 62). NOURSHING BODY LOTION, 12 PCS / CTN X 250 GRM EACH X 49 CTNS, WEIGHT WITHOUT PACKING 147 KGS, WEIGHT WITH PACKING 171.5 KGS, BRAND: DOVE, I/O: U.K. 63). ESSENTIAL MOISTURE LOTION, 06 PCS / CTN X 200 GRM EACH X 200 CTNS, WEIGHT WITHOUT PACKIGN 240 KGS, WEIGHT WITH PACKING 300 KGS, BRAND: VASELINE, I/O: U.K. 64). COCOA RADIANT BABY LOTION, 06 X 400 GRM EACH X 165 CTNS, WEIGHT WITHOUT PACKING 396 KGS, WEIGHT WITH PACKING 462 KGS, BRAND: VASELINE, I/O: U.K. 65). HYDRO CARE SP F15, 12 PCS / CTN X 4.8 GRM EACH X 153 CTNS, WEIGHT WITHOUT PACKING 8.81 KGS, WEIGHT WITH PACKING 550.8 KGS. BRAND. NIVEA, I/O: GERMANY. 66). LIP TREATS (LIP BALM), 06 PCS / CTN X 19.2 GRM EACH X 70 CTNS, WEIGHT WITHOUT PACKING 8.06 KGS, WEIGHT WITH PACKING 245 KGS, BRAND: NIVEA, I/O: NOT SHOWN. 67). BABY LOTION, 06 PCS / CTN X 500 GRM EACH X 90 CTNS, WEIGHT WITHOUT PACKING 270 KGS, WEIGHT WITH PACKING 333 KGS, BRAND: JOHNSON AND JOHNSON, I/O: U.K, 68). HAND CREAM, 06 PCS / CTN X 75 GRM EACH X 115 CTNS, WEIGHT WITHOUT PACKING 51.75 KGS, WEIGHT WITH PACKING 69 KGS, BRAND: DOVE, I/O: U.K. 69). MILK CHOCOLATE COVERED WAFER, 12 PACK / CTN X 96 GRM EACH X 50 CTN, WEIGHT WITHOU PACKING 57.6 KGS, WEIGHT WITH PACKING 75 KGS, BRAND: TIME OUT, I/O: U.K, EXP.DT: 07.01.2016.70). SUGAR FREE CHOCO CHIPS BISCUITS, 12 PKT / CTN X 125 GRM EACH X 09 CTNS, WEIGHT WITHOUT PACKING 13.5 KGS, WEIGHT WITH PACKING 18 KGS, BRAND: GULLON, I/O: SPAIN, EXP.DT: 07.01.2016 .. NOTE: DISCREPANCY FOUND: 1). BABY WIPES,DECLARED QTY: 760.32 KGS, DIFFERENCE 1688 KGS 2). FIZZYMIXED FRUIT JUICE DRINK, DECLARED QTY: 39 KGS, DIFFERENCE117 KGS 3). TOOTH PASTE, DECLARED QTY: 261 KGS, DIFFERENCE 87.6 KGS 4). BODY WASH, DECLARED QTY: 360 KGS, DIFFERENCE 49.5 KGS 5). CREAMS AND LOTION, DECLARED QTY: 1022.5 KGS,DIFFERENCE 12.95 KGS 6). MINERAL WATER, DECLARED QTY:1564.2 KGS, DIFFERENCE -495 KGS DIFFERENCE OF GRMMAGE OBSERVED 130.8 KGS. TOTAL DIFFERENCE BETWEEN DECLARED AND ASCERTAIN NET WEIGHT: 1590.8 KGS.

5.Due to variation in both Examination Reports, it was appropriate to probe the matter through senior level officer, therefore, goods were re-examined on 08.01.2013 in the presence of Additional Collector, Customs (Examination). The detailed Examination Report is as under:

RE-EXAMINED THE CONSIGNMENT IN PRESENCE OF ADDITIONAL COLLECTOR (EXAMINATION-PMBQ). DESCRIPTION WISE REPORT IS GIVEN AS UNDER:

01 Cadbury wheaties biscuits (milk chocolate, 300, gram net weight of each pack 12 rolls x01 ctn 306 gram per roll 50 180 Cadbury Eu 07-052016. 02 Cadbury shorties biscuits (milk chocolate 300 gram net weight of each pack 12 roll x01 ctn 306 gram 25 90 Cadbury Eu 14-05-2016. 03 Digestives biscuit 300 gram net weight of each pack 12 roll x01 ctn 309 gram 42 151.20 Mcvitives Eu 30-04-2016. 04 Bournville classic dark chocolate 100 gram net weight of each pack 18 pack x 01 ctn 50 90 Cadbury Eu 30-06-2016. 05 Milk chocolate spread, 400 gram net weight of each glass bottle 06. bottle x 01 case 609 gram with glass bottle, 20 48 Cadbury Eu 01-08-2016. 06 Twirl twin bar chocolate finger 136 gram net weight of each pack 140 gram with packing 12 pack x01 ctn 160 261.12 Cadbury Eu 29.07.2016. 07 Carmel dairy milk chocolate 148 gram net weight of each pack 151 gram with packing 15 pack x01 ctn 52 115.44 Cadbury Eu 12-08-2016. 08 Heroes milk chocolate 185 gram of each pack 214 gram with packing. 09 pack x01 ctn 30 49.95 Cadbury Eu 31-03-2016. 09 Heroes milk chocolate 323 gram of each pack 364 gram with packing, 06 pac x01 ctn 38 73.64 Cadbury Eu 31-03-2016. 10 Milk tray chocolate gift pack, 360 gram net weight of each pack 481 gram with packing 06 pack x01 ctn 18 38.88 Cadbury Eu 27-03-2016. 11 Milk tray chocolate gift pack, 180 gram net weight of each pack 251 gram with packing 08 pack x01 ctn 36 51.84 Cadbury Eu 18-05-2016. 12 Eclairs classic milk chocolate 166 gram net weight of each pack 251 gram with packing 10-pack x01 ctn 171 283.86 Cadbury Eu 13-05-2016. 13 Eclairs choco cream filled chew toffee 135 gram net weight of each pack 179 gram with packing 15 pack x01 ctn 40 81 Werther's original Eu 06-2016. 14 Eclairs caramel fudge smooth milk chocolate 100 gram net weight of each pack 109 gram per pack 15 pack x01 ctn 40 60 Werther's original Eu 06-2016. 15 Butter candies 137.50 gram net weight of each pack 143 gram per pack 24 pack x01 ctn 104 343.20 Werther's original Eu 05-2016. 16 Chocolate aero feel bubble bar 100 gm per pack 102 gram per pack 15 pack x 01 ctn 48 60 Nestle Eu 05-2016. 17 Chocolate paper mint 100 gram per pack 80 pack x 01 ctn 02 16 Ritter sport Eu 18-04-2016. 18 Chocolate finest marzipan 100 gram per pack 80 pack x 01 ctn 02 16 Ritter sport Eu 18-04-2016. 19 Chocolate with whole hazelnuts 100 gram per pack 80 pack x 01 ctn 02 16 Ritter sport Eu 15-04-2016. 20 Chocolate with +crunchy roasted whole hazelnuts 100 gram per pack 80 pack x 01 ctn 02 16 Ritter sport Eu 07-06-2016. 21 Butter chocolate cover biscuits 100 gram per pack 80 pack 02 16 Ritter sport. 22 Lollipops stick 168 gram per pack 180 gram per pack 24 pack x 01 ctn 30 120.60 Chupachups Eu 07-2018. 23 Lollipops stick 150 gram per pack 24 pack x 01 ctn 30 108 Chupachups Eu 06-2018. 24 Sugar free vanilla wafer biscuit 210 gram per pack 222 gram per pack 12 pack x01 ctn 30 75.60 Gullon Eu 07-05-2016. 25 Sugar free digestive biscuit 400 gram per pack 445 gram per pack 15 pack x01 ctn 40 240 Gullon Eu 15-08-2016. 26 Sugar free chco chip biscuit 125 gram per pack 132 gram per pack 12 pack x01 ctn 09 13.50 Gullon Eu 07-07-2018. 27 Classic mint thins smooth chocolate 200 gram per pack 231 gram per box 24 box x 01 ctn 30 144 Ashley Eu 30-2016. 28 Sugar alternative granulated low sugar 60 gram per box 102 gram per box 06 box 01 case 54 19.44 Time out Eu 03-2018. 29 Milk chocolate wafer finger bar 96 gram per pack 105 gram per pack 12 pack x 01 ctn 50 57.50 Cadbury Eu 07-2016. 30 Milk chocolate 60 gram per pack 64 gram per pack 25 pack per ctn 22 33 Toblerone Eu 13-07-2016. 31 Galaxy minstrels chocolate 76% bounties 105 gram per pack 112 gram per pack 16 pack x 01 ctn 80 134.40 Treat bag Eu 24-07-2016. 32 Smarties chocolate bounties 152 gram per pack 165 gram per pack 12 pack x 01 ctn 48 87.55 Nestle Eu 04-2016. 33 Drink vimto fizzy 250 ml per bottle 284 gram per bottle 24 botle x 01 case 26 156 Cherry Eu 05-2016. 34 Disney frozen milk and white chocolate bounties 70 gram per box 86 gram per box 15 box x 01 ctn 25 26.25 Kinnerton Eu 01-07-2016. 35 Disney chocolate olafs 68 gram per pack 82 gram per pack 24 pack x 01 ctn 30 49 Kinnerton Eu 08-2016. 36 Baby wipes (pure, soft skin, natural) 356 per pack 356 per pack 10 pack x 01 ctn 480 1707.68 Huggi Eu. 37 Baby wipes 482 per pack 482 per pack 12 pack x 01 ctn 128 740.32 Pamper Eu 20-08-2017. 38 White chocolate 100 gram per pack 106 gram per pack 15 pack x 01 ctn 40 60 Lifestyle Eu 19-07-2016. 39 Milk chocolate 100 gram per pack 15 pack x 01 ctn 40 60 Lifestyle Eu 19-07-2016. 40 Fruit and nut milk chocolate 100 gram per pack 15 pack x 01 ctn 40 60 Lifestyle Eu 19-07-2016. 41 Sunny start cream, banana and creamy porridge from 4-6 months, 125 gram per box 234 gramperbox 06 box x 01 ctn 351 263.25 CowandgateEu17-02-2017. 42 Growing up milk 1-2 years (chocolate 10%) 900 gram per box 973 gram per box 06 pac x01 ctn 51 275.40 Cow and gate Eu 05-11-2016. 43 Toddler milk 1-3 year 900 gram per tin pack 1120 gram per tin box 06 tin x 01 ctn 40 216 Sma Dublin 11-04-2017. 44 Regulino traditional chunky bolognas sauce 500 gram per bottle 746 gram per bottle 06 bottle x 01 case 56 168 Eu 04-2017. 45 Fluoride tooth paste fresh 100 ml perpcs 148 gram per pcs 12 pcs x 01 ctn 150 180AquaEu21-10-2017. 46 Fluoride tooth paste 75 ml per pcs 120 gram per pcs 12 pcs x 01 ctn 90 81 Sensodyne Eu 05-05-2018. 47 anti tratar tooth paste 75 ml per pc 114 gram per pc 24 pcs x01 ctn 50 90 Signal Eu. 48 With trout in jally in tin pack, 390 gram per tin460grampertin12tin x 01 case 144 673.92WhiskasEu01-07-2017. 49 With beef in tin pack 340 gram perbox378gramperbox06 box x 01 ctn 240 489.60WhiskasEu04-08-2016. 50 With chicken, tuna, rabbit, in jally 100 gram per pouch 107 gram per pouch 24 pouch x 01 ctn 410 984 Whiskas Eu 29-07-2017. 51 With steamed, tuna, rabbit in jelly 85 gram per pouch 89 gram per pouch 28 pouch x01 ctn 120 285.60 Whiskas Eu 10-06-2017. 52 With salmon in jally in tin 390 gram per tin 481 gram per tin 12 tin x 01 case 146 683.28 WhiskasEu 08-2017. 53 With chicken in jally in tin 390 gram per tin460grampertin 12 tin x 01 case 288 1347.84 WhiskasEu01-08-2017. 54 Fortified with gas natural mineral water 330 ml per tin 345 gram per tin 24 tin x 01 case 134 1061.28 Perrier Eu 01-07-2017. 55 Soft drink 330 ml per tin 330 ml per tin 24 tin per case 40 316.80 Cocacola Eu 08-2016. 56 Sanitary ladies pads 62 gram per pack 80 gram per pack 12 box per ctn 42 31.24 Kotex Eu. 57 Cookies crisp 375 gram per pack 450 gram per pack 06 box x 01 ctn 100 225 Kelloy's Eu 29-06-2016. 58 Honey hoopla /cereal 250 gram per pack 264 gram per pack 10 box x 01 ctn 31 77.50 Kelloy's Eu 10-07-2016. 59 Coco pops chocos cereal 240 gram per pack 253 gram per pack 10 pack x01 ctn 36 86.40 Kelloy's Eu 06-07-2016. 60 Coco pops chocolate / cereal 220 gram per pack 236 gram per pack 10 pack x01 ctn 11 24.20 Kelloy's Eu 07-2016. 61 Coco pops chocos cereal 295 gram per pack 309 gram per pack 05 pack x01 ctn 60 88.5 Kelloy's Eu 06-07-2016. 62 Essential moisture body lotion 200 ml per bottle 226 gram per bottle 06 bottle x 01 ctn 238 286 Vaseline Eu. 63 Coca radiant body lotion 400 ml 400 ml per bottle 440 gram per bottle 06 bottle x 01 ctn 85 204 Vaseline Eu. 64 Aloe fresh body lotion 400 ml per bottle 434 gram per bottle 06 bottle x 01 ctn 86 206.40 Vaseline Eu. 65 Essential nourishing body lotion 250 ml per bottle 295 gram per bottle 12 bottle x 01 ctn 49 147 Dove Eu. 66 Essential nourishing hand cream 75 ml per bottle 91 gram per bottle 06 bottle x 01 ctn 117 52.65 Dove Eu. 67 Hydro cares pf 15 (pure water and alovera) chip stick 4.8 gram per bottle 19 gram per bottle 12 bottle x 01 ctn 153 8.81 Nivea Eu. 68 Energy shower gel+body+face+hair 250 ml per bottle 286 gram per bottle 12 bottle x 01 ctn 30 90 Nivea Eu. 69 Soft shower cream 250 ml per bottle 284 gram per bottle 24 bottle x 01 ctn 13 78 Nivea Eu. 70 Soft coconut shower cream 250 ml per bottle 284 gram per bottle 06 bottle x 01 pack 123 184.50 Nivea Eu. 71 Lip balms 04 pcs set 19.20 gram per set 81 gram per set 06 set x 01 ctn 70 08.64 Nivea Eu. 72 Baby oil 300 ml per bottle 283 gram per bottle 24 bottle x 01 ctn (24 pcs*01 pack, total 04 pack x01 ctn) 240 432 Johonsons Italy. 73 Baby lotion 500 ml 500 ml per bottle 536 gram per bottle 12 bottle per ctn 80 480 Johonsons Italy. 74 Mayonnaise 251 gram per bottle 282 gram per bottle 08 bottle per ctn 93 180.72 Hellmann's Eu 07-2016. 75 Salad cream 460 gram per bottle 490 gram per bottle 300 bottle 100 138 Heinz Eu 01-05-2016. 76 Tomato ketchup 342 gram per bottle 374 gram per bottle 10 bottle per ctn 76 260 Heinz Eu 01-08-2016. 77 Flavoured milk/ glaxy smooth milk 750 ml per bottle 831 gram per bottle 06 bottle x 01 case 112 504.00 Galaxy Eu 06-02-2016. 78 Anti bacteria mouth wash soft mint 250 ml per bottle 296 gram per bottle 06 bottle x01 ctn 156 234 Colgate Eu. 79 Oral-b sensitive fresh mouth wash 500 ml per bottle 549 gram per bottle 06 bottle x01 ctn 72 216 Orl-b Eu. 80 Oral-b fresh sensitive mouth wash 300 ml per bottle 373 gram per bottle 12 bottle x01 ctn 66 237.60 Oral b Eu. 81 Listerine mouth wash 500 ml per bottle 557 per bottle 06 bottle x01 ctn 72 216 Listerine Eu. 82 Canderal sugar free 105 tablets 8.93 per bottle 26 gram per bootie 12 bootle x01 ctn 78 8.35 Canderal 05-2018. 83 Cherry blosam handy shoe shine 240 gram per pack 240 gram 06 pcs x01 pack 115 27.60. 84 Rose chocolate gift pack 321 gram per pack 353 gram per pack 06 pack x01 ctn 21 40.47 Cadbury 30-04-2016

Total No. of cartons = 7001 CTN Total Net weight = 17668.84 Kgs Gross Weight = 21060 Kgs vide qict weight slip # 2947371 dated 18-11-2015.

Note:- Importer declared No. of CTNs in packing list= 7028 CTNs , on physical examination 55 CTNs are short shipped Total Cartoons are found= 6973 cartoons Importer declared net weight = 15696 kg

During Re-Examination cartoons are found 7001 instead of 6973 and Net weight comes to 17668 Kg. Difference between declared and found weight are 1972 Kg (12.56% excess weight).

6.The above facts clearly depict that the importer M/s. Pak International (NTN: 0690982) has willfully and deliberately misdeclared the description and PCT heading. Some undeclared items were also detected. Besides excess weight of goods 12.56% was found, in order to evade payment of duty and taxes.

7.The adjudicating officer vide Order-in-Original No.491868 dated 08.03.2016 held that the charges against the Appellants are established. The operative part of the impugned Order reads as under:--

"I have gone through the case record and considered written/ verbal arguments of both sides. Scrutiny of record reveals that the respondent imported assorted items vide the impugned G.D. As per the addendum dated 03.03.2016 submitted by the department, excess weight quantity of eight (08) items was detected during examination, i.e. baby wipes, sanitary pads, baby oil, fruit juice drink, toothpaste, baby lotion and chocolates. The excess quantity is mentioned at serial Nos. 30 to 37 of the addendum furnished by the department. In view of the aforesaid, the net weight of the consignment after examination by Customs was found to be 17.668 Kg instead of 15,696 Kg declared by the importer/ respondent; which is 1,972 Kg or 12.5% excess. Further, the importer/ respondent provided general description of one of the items In the GD as "assorted candy," which the department bifurcated on the basis ofphysical examination into three sub-items, i.e. Mint Thins (chocolate flavor), Eclairs (milk chocolate) and Werther original (caramel fudge covered in smooth milk chocolate) and appropriately classified the same under HS Code 1806.9000 as 'chocolates'.

In view of the aforesaid factual position, the charges levelled in the Show-Cause Notice stand established to the extent of excess weight of aforesaid goods and misdeclaration of description of "chocolates (higher value item)" as "body (lower value item)". I, therefore, order for confiscation of excess and mis-declared goods under Section 156 (1) clause 14, read with section 32(1) and (2) of the Customs Act, 1969. However, an option under Section 181 of the Customs Act, 1969 is given to the importer to redeem the confiscated excess goods on payment of 20% fine, Rs.139,441/- (Rupees one hundred thirty-nine thousand four hundred and forty-one) and misdeclared goods on payment of 35% fine, i.e. Rs.358,568/ (Rupees three hundred fifty-eight thousand five hundred and sixty-eight) equivalent to the value of respective' offending goods (as determined by the department) in terms of S.R.O. 499(I)/2009 dated 13.06.2009, in addition to payment of duty and taxes leviable thereon (as determined by the department). The total amount of redemption fine comes to Rs.498,009/-. A penalty of Rs.50,000/- (Rupees one hundred thousand) is also imposed on the respondents for violation of above-mentioned provisions of law."

8.Feeling aggrieved and dissatisfied with the above order-in-original, the Appellant filed an Appeal before this Tribunal on the following main grounds:--

(a)The appellant has strong reservation on the act and commission of respondent No. 2, which inspite said to be independent acted as subordinate to the respondent No. 1 and this stood validated from the charter of show-cause notice, which is although quite lengthy but silent in regards to determination of fact that how the appellant mis-declared the description, quantity and value and how alleged loss of revenue have been worked out, as he is unable to ascertain that the rationale behind the show-cause notice. It is but nothing then giving the sheets of papers shape of cosmetic show-cause containing statutory provisions of the Act/Ordinance, while using key words. These type of papers least falls within the ambit of show-cause notice. It is also not supported with the tangible evidences in spite being mandatory as it is upon the person levelling the allegation to prove that. Appellant is also at loss to digest the fact that how respondent No. 2 without going through the facts and the provisions of the Act and Ordinance transmitted the show-cause notice to the appellant. These type of show-cause notice being based on contravention report and transmitted show-cause notice are not considered valid and legal documents. This vital lapses resulted in grave injustice to appellant as held in reported judgment 2004 PTD 369 issued by the High Court of Sindh in the case of M/s. Zeb Traders v. Federation of Pakistan. Their lordship of the High Court held that

"The proceeding before Adjudicating Officer, under the Customs Act, 1969 are in the nature of quasi judicial proceedings and issuance of notice under section 180 of the Customs Act, is very important documents. The decision to issue show-cause notice is to be taken by the Collector, Adjudication, by application of independent mind and not merely signing the draft show-cause notice submitted by the investigation agency separate from the Adjudication Department and each category of officers are required to perform their respective functions/duties under the law. The practice to submit draft show-cause notice by the Director General of Intelligence and Investigation to the Collector Adjudication is depreciated."

(b)That in the show-cause notice, reference have been made to Sections 3 and 6 of the Sales Tax Act, 1990, Section 3 is a charging Section, whereas Section 6 speaks about mode and manner of collection of sales tax leviable on the goods at import stage by the Customs Authorities. Meaning thereby that the said section is machinery section, under which no charge can be invoked. The authority to take cognizance of the charging section rest with the Officer of Inland Revenue. Similarly, reference has been made to Section 148 of the Income Tax Ordinance, 2001, while terming the same simultaneously as charging section and penalizing confirms that respondent No. 2 completely inapt interpreted the said provision of Ordinance. The fact of matter is that it is a machinery section and has been inserted in the Income Tax Ordinance, 2001 empowering officer of Customs, to collect the leviable income tax at import stage. No show-cause notice can be issued under these sections, issuance of show-cause notice on the basis of irrelevant sections renders the show-cause notice void and ab initio and of no legal effect as held in reported judgment judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593, Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs.

(c)Notwithstanding, even otherwise respondent No. 2 is not appointed as Officer of Inland Revenue under Section 30 of the Sales Tax Act, 1990 and Section 207 of the Income Tax Ordinance, 2001 and as such is not empowered to issue show-cause notice and pass order-in-original relating to matters of Sales Tax and Income Tax under Section 11 of the Sales Tax Act, 1990 and Section 162(1) of the Income Tax Ordinance, 2001. Hence, by issuing show-cause notice with the inclusion of amount of Sales Tax and Income Tax, the respondent No. 2 usurped the power of Officer of Inland Revenue to which he is not vested, Rendering the issuance of show-cause notice and order-in-original being in flagrant violation of law and as such coram non-judice as held in Order in Sales Tax Appeal No. 444/03, STA 465/07 and judgments reported at PLD 1971 SC 184, PLD 1976 Supreme Court 514, 1992 ALD 449, 2004 PTD 624, PLD 2004 Supreme Court 600, PLD 2005 Supreme Court 842, 2009 PTD 1112; 2010 PTD 465 and 2010 PTD (Trib.) 1636.

(d)That the respondents loss sight of the Central proposition of law that upon conclusion of transaction under the provision of Sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001, the transaction became past and closed. The consignment so out of charge after completion of codal formalities cannot be subject to re-examination, detention, seizure for the purpose of adjudication, by virtue of the fact that the Officer who allowed the gate out and the preceding formalities became functus officio. In the instant case of appellant the Customs Codal Formalities were completed and the goods were out of charge and the consignment was gate out. The respondents act of blocking the Good Declaration and subsequently detaining the goods is a belatent illegal act, as none of the provision of the Act and Rules embodied in Sub-Chapter III of Chapter XXI of Customs Rules, 2001 empowers them to do so rendering the blocking/detention under Section 186, Seizure under section 168(1), issuance of show-cause notice under section 180 while assuming powers under Section 179 of the Customs Act, 1969 isnothingmorethanabuseofpowersandthestanceofthe appellant stood validated from the reported judgment 2008 PTD 1968 MessrsSikander Enterprises v. Central Excise and Sales Tax Tribunal Karachi. Their lordship of the High Court held;

"Even otherwise after clearance of the goods i.e. gate out Customs Authority were functus officio to reopen the case again it had become past and closed transaction"

(e)Notwithstanding to the above illegality, it is submitted that on conclusion of transaction, under the provision of Sections 80 and 83 of the Customs Act, 1969 and Rules 438 and 442 of Customs Rules, 2001, the order so passed under the said provision of the Act becomes appealable order under Section 193 of the Customs Act, 1969 before Collector of Customs (Appeals) and the respondent No. 1 is empowered to do so. If he had any reservation against the passed assessment orders dated 23.11.2015, the appropriate course of action was to assail the said order before the Collector of Customs Appeals. Which had not been done within the stipulated period and order so passed by the competent authority defined in Section 2(a) under Section 80 of the Customs Act, 1969 became final and that cannot be disturbed by any authority. To the contrary, the respondent No. 1 and his superiors detained, seized the goods, which is not permitted under law.

(f)That upon filing of the appeal by respondent No. 1 before the Collector of Customs Appeals under Section 193 of the Customs Act, 1969 emanating the facts of the case and the relevant provision of law. Upon taking up the appeal it is mandated on him to go through the fact and ground of the appeal and thereafter if he think fit that in the case under adjudication correct duty and taxes have not been either levied or short paid on the basis of found goods, is empowered to issue a notice under Section 32 of the Customs Act, 1969 to the appellant/ importer and after receipt of reply to the said notice the Collector of Customs will decide the appeal in the light of the issued show-cause notice and reply. In the instant case no appeal has been filed by the respondent No. 1 despite mandated under law, instead he assumed the powers under Section 195 of the Customs Act, 1969 and reopened a valid assessment order passed under the provision of section 80 on 03 occasions i.e. on 23.11.2015 and 16.12.2015, whereas on the basis of 3rd assessment order, contravention report was framed, which has beenmadebasisbytherespondentNo. 2forissuanceofshow-cause notice. None of the respondents are empowered to reopen valid assessment order passed by the Adjudicating authority defined in Section 2(a) of the Customs Act, 1969 in exercise of powers vested through Notification No. 371(I)/2002 dated 15.06.2002, both acted without power/jurisdiction, hence theactiondeemstobewithoutanylawfulauthorityandassuch ab-initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 MessrsParamountInternational(Pvt.)Ltd. v. FOPandothers.

(g)That the consignment in question had undergone the procedure of clearance as evident from the fact that the appropriate officer in the capacity of adjudicating authority defined in Section 2(a) of the Customs Act, 1969 in exercise of the powers vested upon him under Section 80 and Rule 438 of Sub-Chapter (III) of Chapter XXI of Customs Rules 2001 and Notification No. 371(I)/2002 dated 15.06.2002 passed that after checking all the aspects and in consideration of clear images attached as instructed in the examination report, for levy of duty and taxes, which were paid by the appellant, consequent to which the authority defined in Section 83 of the Customs Act, 1969 passed Clearance Orders twice on 24.11.2015 and 18.12.2015. The respondent No. 1 and his superiors detained the goods and later on seized and framed a contravention report for adjudication under section 179 of the Customs Act, 1969 by respondent No.2 for issuance of show-cause notice and subsequently passing of order-in-original i.e. piling of fresh order on the existing order, while reopening of the order of assessment, in exercise of the power under the provision of Section 195, specifically vested with the Board or Collector. Neither the respondent No.1 nor respondent No. 2 are empowered to reopen an order under Section 195 of the Customs Act, 1969 both usurped the powers not vested with them rendering the preparation of contravention report, show-cause notice and the impugned order in original without powers/jurisdiction, hence void and ab-initio and as such coram non judice and this stood validated from the reported judgment Messrs Smith Kline French v. Pakistan reported as 2004 PTD 3020 held that "once an order is passed, which attains finality, the same cannot be subject to a show-cause notice again, considering that no appeal or revision is filed against the first order. This was held by the learned High Court to be in derogation of the principles of administration of justice" and 2014 PTD 1256 MessrsParamount International (Pvt.) Ltd. v. FOP and another in which it has been held that "1st order in original passed in the subject matter was an appealable order for both the parties therefore option to reopen an order passed under the adjudicating hierarchy was not available to the Collector,--- Even the Collector of Customs Adjudication could not over see or exercise any right of reopening of an order, which has been passed by an officer lower in rank but acting as an adjudicating authority. Impugned order was set aside." The cases referred are squarely applicable on our client case.

(h)That it is also imperative to add further that assessment orders in the subject case have been passed by the competent authority on 23.11.2015 and 16.12.2015 and the appeal against which could had been filed by either respondent No. 1 or his superiors could had been filed on or before 22.12.2015 or 15.01.2016 but they did not file to this date and the passed assessment orders attainedfinality and became closed and past transaction and cannot be disturbed or reopened by any authority or court as held in reported judgment 1989 MLD 4310 MessrsWorld Trade Corporation v. CentralBoard of Revenue that "if the order has attained finality through limitation. A fortiori; the Central Board of Revenue could not open up an order that had attained finality under the Sea Customs Act, 1878, and against which sou motu revision lay under the Act" and 2004 PTD 3020, Glaxo Smith Kline Pakistan Ltd. Karachi v. Collector of Customs, Sales Tax Central Excise, Karachi "that department could not re-agitate which had been decided against him---said order could be assailed in appeal or revisional proceedings, which in the present case were not initiated and therefore the same held the field and in the presence of earlier orders another order contrary to the said earlier order could not be allowed hold the field for the simple reason that two contrary orders could not exists at the same time" In the light of the settled law the initial assessment orders attain finality by virtue of expiry of stipulated period expressed in sub section (2) and as such hold field and no subsequent order on these to be allowed to be piled upon these being not permitted.

(i)That it is of vital importance to the appellant to state that after transmitting of assessment orders on 23.11.2015 in the case of appellant, 2nd assessment order dated 16.12.2015 and order-in-original dated 08.03.2016 passed by respondent No. 2 are not permitted under law as discussed in para supras. To the contrary, the Principal Appraiser of the Group passed assessment order dated 16.12.2015 and subsequently the respondent No. 1 on the strength of which contravention report was prepared and 4th respondent No. 2 passed order after issuance of show-cause notice. The issued reassessment orders dated 23.11.2015 and 16.12.2015 and the order passed by respondent No. 2 are nullity in the eyes of law in the light of what have been discussed in the above paras as this tantamount to double jeopardy being completely in derogation of the settled proposition of law. The act of the respondents squarely falls within the act of "quadruplicate Jeopardy", as "double jeopardy" and "triple jeopardy" have already been committed by them in negation of the Article 13 of the Constitution of Islamic Republic of Pakistan beside also being in derogation of the law laid down by the Superior Courts of Pakistan.

(j)Notwithstanding, to what have been stated above, it is imperative to state that the entire case has been made out onthe basis of assumptions/presumptions and surmises and to prove our stance inspite of having no mis-declaration of any sort, discrepancies floating on the surface of these pieces of papers are narrated here-in-below:

(i)The quantity shown in excess in the first page of show-cause notice is 4044.14 kgs as against shown in para 5 of the show-cause notice 1972 kgs, which is also erroneous being with the incorporation of essential packing material, on which no duty and taxes have to be paid under law and this further validated from the note of the examination reports.

(ii)In the front page of the show-cause notice mint thin, which are candies are termed as chocolates, this is novel type of definition of chocolate. The difference between candy andchocolate is called sweets or lollies is a confection that features sugar as a principle ingredient, whereas chocolate is a range of goods derived from cocoa mix with fat i.e.cocoa butter and finally powder sugar to produce a solid confection. Terming our client candies as chocolate by the official of PMBQ tantamount to absurdity, rendering the charge of mis-description of no substance and as such of no legal effect.

(iii)Similarly, in the first page of the show-cause notice, Milk Toffee (Eclair) has been termed as milk chocolate, while ignoring the definition of toffee and chocolate which are pole apart. Toffee is a candy made of caramelizing sugar or molasses along with butter and occasionally flour the mixture is heated until its temperature reaches the hard crack stage of 149 to 154 degree Centigrade as against the chocolate, definition of which is given in sub-para (ii) above.

(iv)The officials of Port Muhammad Bin Qasim with mala fide intention have termed our client imported candies and toffees weighing to 1615 kgs as chocolate simply for applying the valuation ruling of chocolate for the purpose of calculating loss of revenue, while ignoring the Valuation Ruling applicable thereon i.e. issued for candies and toffees. It is also to be noted that out of the said calculated impugned loss of revenue our client has already deposited an amount of Rs. 694,600.00 vide cash Nos. A-KPPI-1914- 24112015 and A-KPPI-1577-18122015. Which they have in the show-cause notice stated to be found in excess for further validation of the said fact assessment orders of the said goods may please be perused being marked as Exhibit " J to J32".

(v)That infact the official of Port Muhammad Bin Qasim intended to levy duty and taxes on candies and toffees twice for generation revenue, which is not otherwise payable by our client, simply for generating additional revenue. This type of generation of revenue is a "high minded thing" instead "shabby thing" or "dirty tricks" to be precise "extortion" and tantamount to "double taxation" not permitted under the provision of the Customs Act, 1969 and Constitution of Islamic Republic of Pakistan and even of the World as this amounts to double taxation. Reliance is placed on reported judgment 1992 PTD 593, 2003 PTD (Trib.) 928, 2010 PTD 1515 and 2009 PTD (Trib.) 2025.

(vi)The entire case if analyzed in the light of the examination report and assessment order confirms one thing with clarity that the entire fault lies on either respondent No. 1 or his subordinates, who conducted examination and passed assessment orders, inspite conduction of 100% examination, which is mandatory of miscellaneous goods and in that no part is played either by appellant or his clearing agent in terms of expressed provisions of Rule 435 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 (have to be conducted by the Customs Officials with the assistance of Terminal Operators) if any lapse had been committed in ascertaining the correct quantity of the goodsimported by the appellant rest on those officials, who conducted the examination report and passed assessment orders. This also confirms that there exist no mens rea on the part of appellant. Where there is no mens rea Section 32 of the Customs Act, 1969 cannot be invoked as directed by the Board in para 101(B) of CGO 12/2002 dated 15.06.2002, which is mandated to be adhered by the field formation as held by Honourable High Court of Sindh in reported judgment 2016 PTD 35 Muhammad Waheed v. Customs Appellate Tribunal that:

"Direction contained in Customs General Order 12 of 2002 though not binding upon Field Officer of the Department in terms of S. 223 of the Customs Act, 1969---Field Officer were required to follow such direction or guideline before making any contravention report/case against an importer --- any act of Field officer in violation of such direction would be of no legal consequences."

(k)That in the light of the examination reports, assessment orders and above submission "deliberate act" or "connivance" of the appellant or their clearing agent or the customs officials is not visible, resultant invoking of section 32(2) is erroneous and the case in question falls within the ambit of section 32(3) of the Customs Act, 1969 i.e. error or omission committed by the Officials of Port Muhammad Bin Qasim. For better appreciation verbatim of that is reproduced here-in-below:--

"Where, by reason of inadvertence, error or mis-construction any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within 03 years of the relevant date requiting him to show cause why he should not pay the amount specified in the notice".

(l)That your authority has no power under section 32(3) ibid, instead the authority enjoying the powers under this Section is Principal Appraiser as evident from notification S.R.O. No.371(I)/2002 dated 15.06.2002. Meaning thereby that he is the only authority to proceed in the matter instead of respondent No. 2 because it is settled elementary principle of law that action of executive functionaries are to be restricted to specific sphere permitted by the statute. In S.R.O. 371(I)/2002 dated 15.06.2002 your authority figure no where rendering the issued show-cause notice and the anticipated to be passed order-in-original as ab initio and void. If the opinion oftenly adopted by the authorities that Superior Authorities can exercise the powers of their subordinate under section 4 of the Customs Act, 1969 is considered valid for a while then the hierarchy of distribution of jurisdiction explicitly provided by section 179 of the Act and SRO 371(I)/2002 dated 15.06.2002 shall be rendered redundant. Also the consequent result would be a total anarchy where the superior officers would be making all efforts to exercise the adjudication powers clearly conferred by law upon their subordinates. The powers of adjudication are specific and empowered by the statute. It is an elementary principle of law that where there is a conflict between special and general provision of law the special provision shall prevails (reference is invited to the case of Lt.-General (Retd.) Shah Rafi Alam v. Lahore Race Club, 2004 CLD 373. The power of adjudication, as already observed, is special in nature. This cannot be eclipsed by any other general provision. Even otherwise there is another settled principle of interpretation of statute i.e. that the courts can supply construction with a view to avoiding absurdity (reference is invited to the case of Khalid Qureshi v. UBL 2001 SCMR 103). Equally it must be kept in mind that if it is held that sections 4 and 179 occupy the same fields, there is likely to be redundancy in respect of powers conferred under section 179 and S.R.O. 371(I)/2002 dated 15.06.2002. The Supreme Court in the case of East West Steamship v. Queen Land Insurance PLD 1963 SC 663 has been pleased to hold that redundancy is to be avoided in respect of any provision of the statute. There is also plethora of case law on the point that where there is a conflict between two provision of the statutes, the later provision prevails and has to be given precedents (reference is invited to the case of Sahibzada Sharfuddin v. Town Committee, 1984 CLC 1517. Apart from this law favours actions of the authorities to be confined to their own spheres of jurisdiction conferred by the statute. An action taken by a state functionary beyond the ambit of his jurisdiction is nullity. In this respect the judgment reported as Abida Rashid v. Secretary, Government of Sindh PLD 1995 Kar. 587 is referred. Their lordship observed as under:--

"it is trite law that power vested in an authority should only be exercised by that authority, in default whereof, the exercise of power and authority becomes without jurisdiction, illegal, void , ab initio and of no legal effect. The term "without jurisdiction" has been judicially interpreted to include usurpation of power warranted by law (The Chief Settlement Commissioner Lahore v. RajaMuhammadFazilKhanandothersPLD 1975 SC 331)an act done which the person doing, it has no jurisdiction at all to do or which was clearly outside the scope of his activities (The State v. Zia-ur-Rehman PLD 1973 SC 49) and a judgment or order delivered by a court or a judicial or a quasi judicial authority not competent to deliver it (Muhammad Saleh and others v. MessrsUnited Grain and Fooder Agencies PLD 1964 HC 97). The Constitution jurisdiction can thus be exercise when it is shown that the order is passed without jurisdiction or in excess of jurisdiction. As observed earlier the respondent No. 1 has no jurisdiction to pass the impugned order. As such we declare the same to be of no legal effect. Accordingly, we allow this petition but leave the parties to bear their own cost".

(m)That while dealing with the powers of adjudication, it is needless to observe, that our Supreme Court has jealously guarded the same. In Assistant Director v. B.R. Herman Mohata Ltd. PLD 1992 SC 485 a full bench of Supreme Court was pleased to observe that section 223 of the Customs Act, 1969 could not be employed so as to interfere with the judicial or quasi judicial functionaries. It was clearly observed that the power of the CBR as to prescribed guideline were not relevant for the exercise of judicial function. To similar effect is the judgment of Supreme Court reported as Central Insurance v. CBR 1993 SCMR 1232. In this case the CBR issued direction for the reopening of Income Tax Assessment under section 65 of the Income Tax Ordinance, 1979. It was held by the Supreme Court that the CBR did not figure in the hierarchy of the officer provided in the statute for the purpose of assessment and adjudication. On the basis of this it was held that the directions of the CBR to reopen the assessment was without jurisdiction and the adjudication officer was directed to apply its own mind. Reliance is placed on the order of the Tribunal in S.T. Appeal No. 176/2007 MessrsMuller and Phipps Pakistan (Pvt.) Ltd. v. The Collector of Sales Tax Enforcement LTU, Karachi and 2011 PTD (Trib) 2114 Collector of Customs, Peshawar v. Collector of Customs (Appeals) Peshawar and 2011 PTD (Trib.) 2557 Messrs Wawa Garments Industries (Pvt.) Ltd. v. The Additional Collector of Customs, Export, Karachi.

(n)That no charge of mis-declaration of value can be levelled on any importer or appellant on the basis of valuation ruling issued by the Director, Directorate General of Valuation under section 25A of the Customs Act, 1969, i.e. only for the purpose of assessment and neither on the basis of data maintained under Rule 110 of the period expressed in Rule 107(a) of Customs Rules, 2001. If that would had been the case, not a single consignment would had been cleared by any Collectorate because in every case the value is enhanced on the basis of Valuation Ruling or data without the charges of mis-declaration. Therefore, the charge of misdeclaration of value is without any substance and nullity to the provision of Act and existing practice and as such hold no ground as held in reported judgment 2014 PTD (Trib.) 190 M/s. Shoaib Tayyab International v. Additional Collector of Customs, Karachi, which has been implemented and attained finality.

(o)The order passed by the respondent No. 2 shows that it has not been passed with the application of mind and provision of the Act. Instead is a non speaking order and did not conform to the mandated requirement of S.24-A of the General Clauses Act, 1897 and this stood validated from the fact that no rebuttal on the ground of reply to show-cause notice has been made in the order nor any reasoning/rationale have been adduced for ignoring the copies of the citation supplied to him. The respondent No. 2 instead passed the impugned order on personal absurd opinion contrary to law and that too also is not containing substantial reasons and did not show it was passed on objective consideration stood validated from its contents. Such type of orders are deemed to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary. No room was available for such illegal, void and arbitrarily order in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication/Appellate orders are being violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019, 2007 PTD 2500, 2004 PTD 1973, 2005 YLR 1719, 2003 PTD 777, 2003 PTD (Trib) 2369, 2002 MLD 357, 1983 CLC 2882, 2005 PTD 2519, 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173 1984 SCMR 1014 and 2012 PTD (Trib.) 619.

(p)The lastly, it is paramount importance for the appellant to state that impugned order-in-original have been passed by Ms. Samina Tahira Zohra as Additional Collector of Customs Adjudication-I on 08.03.2016, irrespective of the fact that she stood transferred through Notification No. 0252-C-l/2016 dated 29.01.2016 as Collector of Customs, Exports, PMBQ and she relinquished the charge on 01.02.2016 of Additional Collector of Customs, Adjudication-I and assumed charge of Collector as evident from Notification No. 0310-C-l/2016 Confirming that that the Order has not been passed by her by a ghost authority, rendering it of no legal effect and as such void and ab-inito and holds no grounds for enforcement.

It is therefore prayed that the Hon'ble Appellate Tribunal may please order as:--

i.Setting aside the impugned show-cause notice and the assessment orders passed subsequent to 1st assessment order dated 16.12.2015 and order-in-original dated 08.03.2016 as unmindful, whimsical without powers/jurisdiction and in derogation of the provision of Acts/ Ordinance and Rules framed thereunder and therefore is void and ab-initio while maintaining the assessment order dated 16.12.2015 as correct in facts and law.

ii.Refund to the appellant the paid amount of excess duty and taxes not leviable under law and imposed fine and penalty immediately upon receipt of the order of the Tribunal.

iii.Issue delay and detention certificate in terms of Section 14A (2) of the Customs Act, 1969 in duplicate for submission with the respective shipping company and terminal for refund of paid amount of container detention/rental and terminal demurrage/ storage charges.

9.The Respondent Department has submitted counter-objections/ para-wise comments on the Memo. of Appeal filed by the Appellant in terms of section 194-A (4) of the Customs Act, 1969, which are reproduced as under:--

A.That the contents of Para (A) are absolutely false and baseless, hence vehemently denied. The fact is that this is the clear cut case of misdeclaration of correct weight and so also non declaration of goods and as such the show-cause notice issued in detail and so also the order passed by the learned Respondent No. 1 has categorically, comprehensively and in detail describes the entire fact, circumstances and offence committed by the appellant which order is very much legal, lawful and is liable to be maintained. The case law reported by the appellant has no relevancy with the instant case.

B.That as regards the contents of Paras (B) and (C) it is submitted that since the Sales Tax has to be paid at the import stage, the act of misdeclaration effects the payment of correct sales tax, accordingly the provisions of Sections 3 and 6 of the Sales Tax Act, 1990 also applicable in the instant case which have mentioned in the show-cause notice. The case law reported by the appellant has also no relevancy with the instant case.

C.That as regards the contents of Paras (D) it is submitted that this is not the past and closed transaction as claimed by the appellant. In fact in the instant case the goods were not out of charge and proper examinations were conducted and on final examination the liabilities were determined which the appellant paid without any protest or objection.

D.That as regards the contents of Paras (E) and (F) it is submitted that since the 1st assessment order was not attained the finality, hence there was not require to file any appeal under Section 193 of the Customs Act, 1969 as the goods of the appellant were continuously under process which were finally assessed after conducting the 3rd examination as stated above in detail.

E.That the contents of Para (G) are self explanatory and are based upon the self interpretation of different Sections of Customs Act, 1969. It is further stated here that the instant case has not been reopened under Section 195 of the Customs Act, 1969 as impression given by the appellant rather this is the clear cut case of misdeclaration on the part of the appellant. The appellant by referring different irrelevant case laws just attempting to impress this Honorable Tribunal in order to prove himself to be an innocent person and in order to convert his wrong into right.

F.That the contents of Para (H) are repetition of previous Para for which reply has been given and as such no further comments are require.

G.That as regards the contents of Para (I) it is reiterated here that the goods of the appellant was firstly examined by the shed staff, however, an information was received that some importers are misdeclaring the actual attributes of the goods, in order to ascertain the veracity of the information, second examination was conducted and since the variation was found in both the examination reports, itwas decided that the examination of the goods be conducted in presence of senior officers of the Customs which was conducted accordingly and the same clearly indicated the fiscal fraud on the part of the appellant as stated above in detail and as such there is no quadruplicate jeopardy neither any Article including Article 13 of the Constitution of Islamic Republic of Pakistan 1973 has been negated as alleged by the appellant in Para under reply.

H.That the contents of Para (J) are absolutely false and baseless, hence vehemently denied. The fact is that this is the clear cut case of misdeclaration of correct weight and so also non declaration of goods which fiscal fraud on the part of the appellant has been proved without any shadow of doubt. The rest of the contents as narrated in sub-paras are self explanatory for which the reply and facts have already been mention in preceding paras.

I.That as regards the contents of Para (K) it is submitted that the act of misdeclaration on the part of the appellant has been proved crystal clearly and without any shadow of doubt which clearly attracts Section 32 of the Customs Act, 1969. There is no error or mistake on the part of the answering respondent as alleged by him in Para under reply.

J.That the contents of Para (L) are absolutely false and baseless, hence denied. The case law reported have no relevancy with the instant case.

K.That as regards the contents of Para (M) it is submitted that the appellant once again with mala fide intention and in bad manner has referred the case laws which are neither identical nor similar to the instant case and as such the same are required to be ignored.

L.That as regards the contents of Para (N) it is submitted that this is not the case of misdeclaration of value rather this is the case of misdeclaration of exact weight of the goods and non declaring of goods. The appellant deliberately attempted to divert the attention of this Honorable Tribunal from the actual issue in order to gain some sympathy.

M.That as regards the contents of Para (O) it is submitted that the learned Respondent No.2 being the adjudicating officer after considering all aspects of the case particularly in view of the fact that the appellant has immensely failed to justify his position by providing any substantive documentary evidence in support of his contentions, the learned adjudicating officer has come to the conclusion that the charges levelled in the show-cause notice have stand established and he passed the order-in-original which order is very much legal, lawful. Well within the jurisdiction and is a well speaking order and the same is very much sustainable in the eyes of law. The case laws reported in Para under reply are irrelevant being non identical/ similar.

N.That the contents of Para (P) are false and baseless, hence denied. The fact is that since the show-cause notice was issued by the said adjudicating officer and she hold the same charge of adjudication and as such she passed the order in accordance with her territorial jurisdiction.

It is, therefore humbly prayed that this Honorable Tribunal may graciously been pleased to dismiss the appeal of the appellant being devoid of merits.

10.I have heard both the contesting parties at some length and also examined the relevant record. The stance taken by the Appellant is that it is a case of "Tripple Jeopardy" as the Respondent Department has thrice examined his consignment and thrice assessed the same to customs duty and taxes. The consignment was allowed "out of charge" by the customs authorities, however, after that, they blocked the consignment by instructing the Terminal Incharge of the Port. As the goods had been allowed "out of charge" by the Customs officers, therefore, it was a past and closed transaction. They were not legally authorized to re-examine the consignment and re-assess the same to duty and taxes. The only option left with the Department was to file an appeal against the Assessment Order before the Collector of Customs (Appeals), Karachi in terms of section 193 of the Customs Act, 1969. During the course of hearing and also in the Memo. of Appeal, the learned Consultant strongly agitated that the Customs officers do not enjoy any power to invoke provisions of the Sales Tax Act, 1990 as the same is exclusive domain of the Officers of Inland Revenue. It has also been argued that "Section 3 is a charging Section, whereas Section 6 speaks about mode and manner of collection of sales tax leviable on the goods at import stage by the Customs Authorities. Meaning thereby that the said section is machinery section, under which no charge can be invoked. The authority to take cognizance of the charging section rest with the Officer of Inland Revenue. Similarly, reference has been made to Section 148 of the Income Tax Ordinance, 2001, while terming the same simultaneously as charging section and penalizing confirms that respondent No. 2 completely inapt interpreted the said provision of Ordinance. The fact of matter is that it is a machinery section and has been inserted in the Income Tax Ordinance, 2001 empowering officer of Customs, to collect the leviable income tax at import stage. No show-cause notice can be issued under these sections, issuance of show-cause notice on the basis of irrelevant sections renders the show-cause notice void and ab-initio and of no legal effect as held in reported judgment judgments Asst. Collector v. Khyber Elec. Lamps 2003 PTD 1275, D.G. Khan Cement v. Collector of Customs 2005 PTD 480, Caltex v. Collector 2003 PTD 1593, Union Playing Card Company v. Collector of Customs 2002 MLD 130, Atlas Tyres v. Addl. Collector 2002 MLD 180, State Cement v. Collector PTCL 2001 CL 558, Kashmir Sugar v. Collector 1992 SCMR 1898, Rose Color v. Chairman, CBR and 2013 PTD 813 Sarwar International v. Addl. Collector of Customs."

The Consultant has also raised the point that the impugned Order-in-Original has been passed by Mrs. Samina Tasleem Zohra as the Additional Collector of Customs (Adjudication), Karachi on 08.03.2016 whereas she was transferred vide F.B.R's Order dated 29.01.2016 as Collector of Customs (Exports), Port Muhammad Bin Qasim and she relinquished charge as the Additional Collector of Customs on 01.02.2016. Therefore, the impugned Order-in-Original has been passed by a 'government authority' rendering it of no legal effect". The Consultant has also argued that no charge of Misdeclaration can be framed against an importer merely on the ground that he has not correctly applied the Valuation Ruling "because in every case the value is enhanced on the basis of Valuation Ruling or data without the charges of misdeclaration." The Consultant stated that the Respondent Department with mala fide intention have termed their candies and toffees weighing to 1615 K.gs as chocolate simply for applying the valuation ruling of chocolate which is comparatively on higher side.

11.The Respondent Department's defence argument is that it is a case of Misdeclaration not only in terms of weight but also with reference to value. According to them, the Appellant declared net weight as 15696 K.gs whereas on third examination carried out under the supervision of a senior officer at the rank of an Additional Collector, Customs the same was found to be 17688 K.gs thus declaring less weight by 1972 K.gs (12.56% excess weight). Similarly, the Appellant made an attempt to conceal high value items under low value items. They showed 1615 K.gs chocolates as candies and toffee in order to avoid value of chocolate, being on higher side. The Departmental Representative also produced a copy of letter dated 23.02.2017 written by Mr. Ali Zaman Gardezi, Additional Collector, Customs (Adjudication-I), Karachi, addressed to the Collector of Customs, Port Muhammad Bin Qasim which is in response to Collectorate's letter dated 10.02.2017 confirming that the Show-Cause Notice was issued by Mrs. Samina Tasleem Zohra, however, the Order-in-Original No.491868 dated 08.03.2016 was passed by him.

12.I am not inclined to subscribe to the argument of the learned Consultant that the customs officers of the assessing Collectorate had no jurisdiction once the goods had been allowed 'out of charge' by them. The Superior Courts have ruled on this issue that the Customs authorities (assessing Collectorate) do not enjoy any power on consignments once the same have left the port premises. In the instant case, though the consignment was allowed 'out of charge', however, it had not left the port premises due to the reason that the Customs authorities had put the consignment under `hold' in the automated system of WeBOC. On the issue of misdeclaration of weight by 1972 K.Gs, the Appellant has not been able to put forth any convincing ground in his defence. The argument of the Consultant during hearing that the Respondent Department added weight of the essential packing to show enhanced weight is not tenable as the same is not supported with any corroborative evidence. Further, the final examination including weight was carried out under the personal supervision of a senior officer of Customs (Additional Collector), as such, there is no ground at all to cast any doubts on the intention of the said officer. I agree with the learned Departmental Representative of the Respondent Department that the impugned order-in-original was issued by Mr. Ali Zaman Gardezi, Additional Collector, Customs (Adjudication-I), Karachi and not by Mrs. Samina Tasleem Zohra, Additional. The letter issued by Mr. Gardezi dated 23.02.2017 addressed to Collector, MCC, P.M.B.Q. categorically confirms that the order-in-original was issued by him (Mr. Ali Zaman Gardezi) after hearing of the case. The argument extended in the said letter that "the electronically generated order-in-original continues to reflect the name of Ms. Samina Tasleem Zohra because the system picks the name of the officer from the Show-Cause Notice. This system error/ design needs rectification and will be taken up with the Director General of Reforms and Automation through a Change Report," is quite convincing. Therefore, as per record, Show-Cause Notice dated 25.01.2016 was issued by Mrs. Samina Tasleem Zohra, however, the impugned Order-in-Orginal (No.491868 dated 08.03.2016) was passed and issued by Mr. Ali Zaman Gardezi, Additional Collector, Customs (Adjudication-I), Karachi.

13.According to the learned Consultant sections 3 and 6 of the Sales Tax Act, 1990 have been wrongly invoked in the Show-Cause Notice dated 25.01.2016 as the former is a charging section and the latter provides mode and manner of collection of sales tax. He insisted that only an officer of Inland Revenue can take cognizance of the charging section. Similarly, the Counsel added that section 148 of the Income Tax Ordinance, 2001 has also been wrongly invoked in the above Show-Cause Notice as the same is a machinery section and not charging section. The Counsel added that the Customs authorities do not enjoy powers to invoke any provision of the Sales Tax Act, 1990 or the Income Tax Ordinance, 2001, instead the same is exclusive domain of Officers of Inland Revenue. I do not subscribe to the aforestated assertions of the learned Consultant. For convenience, subsections (1), (5) and (6) of section 148 of the Income Tax Ordinance, 2001 are reproduced hereunder:--

"148. Imports.-

(1)The Collector of Customs shall collect advance tax from every importer of goods on the value of the goods at the rate specified in Part II of the First Schedule.

(5)Advance tax shall be collected in the same manner and at the same time as the customs-duty payable in respect of the import or, if the goods are exempt from customs-duty, at the time customs-duty would be payable if the goods were dutiable.

(6)The provisions of the Customs Act, 1969 (IV of 1969), in so far as relevant, shall apply to the collection of tax under this section."

In this regard attention is invited towards F.B.R's letter C.No.3(32)Tar-I/ 90 dated 06.08.2012 whereby opinion of Law and Justice Division, Islamabad was circulated as received through their letter No.F 242/ 2012-Law-1 dated 11.07.2012 which is reproduced below:--

"The relevant officers of Customs may, therefore continue the adjudication proceedings already initiated and take cognizance of all case of FED, Sales Tax and Withholding Tax pertaining to import stage in future as well."

It is also relevant to point out here that any notification (SRO) issued by F.B.R. would invariably discuss about "taxable supplies" and "imported goods" as two independent domains of sales tax on goods.

14.In my understanding, there is need to properly comprehend scheme of Sales Tax Act, 1990 which would further answer to arguments of the learned Consultant as detailed in the preceding para. Section 3 of the Sales Tax Act, 1990 provides scope of the tax. In terms of aforementioned provision of law, sales tax is charged and levied in two situations namely (i) taxable supplies and (ii) goods imported into Pakistan. The phrase "taxable supplies" deals with domestic supplies of any goods (within Pakistan) by a manufacturer, dealer/ wholesaler or even by an importer of imported goods whereas "goods imported into Pakistan" is straight and simple and needs no elaboration. In order to properly appreciate distinction between the two aforestated situations, the text of subsections (1) and (1A) of section 3 of the Sales Tax Act, 1990 is reproduced hereunder:--

"3. Scope of tax.---(1) Subject to the provisions of this Act, there shall be charged, levied and paid a tax known as sales tax at the rate of seventeen per cent of the value of---

(a) taxable supplies made by a registered person in the courseorfurtheranceofany [taxableactivity]carriedonbyhim;and

(b) goods imported into Pakistan.

(1A) Subject to the provision of subsection (6) of section 8 or any notification issued thereunder, where taxable supplies are made to a person who has not obtained registration number, there shall be charged, levied and paid a further tax at the rate of two percent of the value In addition to the rate specified in subsections (1), (1B), (2), (5) and (6) provided that the Federal Govt. may, by notification in the official Gazette, specify the taxable supplies in respect of which the further tax shall not be charged, levied and paid."

The study of section 3(1) as above, categorically stipulates that the sales tax is chargeable and leviable on two classes of goods though the tariff is the same i.e. 17% of the value, namely (i) domestic supplies of goods, and (ii) any goods imported into Pakistan. The aforesaid position is further confirmed from the study of section 3(1A) as reproduced above. It deals with only "taxable supplies" referring to domestic supplies. It has absolutely no concern with the imported goods. The phrase "taxable supplies" wherever used in the Sales Tax Act, 1990 refers only to "supplies of taxable goods within Pakistan". Another clear distinction between section 3(1) (a) and (b) of the Sales Tax Act, 1990, is that only a "registered person" is authorized to make "taxable supplies" whereas there is no such condition for importing goods in Pakistan. This point is further supported with the fact that section 6 of the said Act provides separate time and manner of collection of sales tax on "imported goods" and "taxable supplies". Forconvenience, section 6 of the said Act is reproduced below:--

"6. Time and manner of payment.---(1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act, 1969 and the provisions of the said Act including section 31A thereof, shall. so far as they relate to collection, payment and enforcement [including recovery] of tax under this Act on such goods where no specific provision exists in this Act, apply.

(1A) Notwithstanding anything contained in any other law for the time being in force, including but not limited to the Protection of Economic Reforms Act, 1992 (XII of 1992), and notwithstanding any decision or judgment of any forum, authority or court whether passed, before or after the promulgation of the Finance Act, 1998 (III of 1998), the provisions of section 31-A of the Customs Act, 1969 (IV of 1969), referred to in subsection (1) shall be incorporated in and shall be deemed to have always been so incorporated in this Act and no person shall be entitled to any exemption from or adjustment of or refund of tax on account of the absence of such a provision in this Act, or in consequence of any decision or judgment of any forum, authority or court passed on that ground or on the basis of the doctrine of promissory estoppel or on account of any promise or commitment made or understanding given whether in writing or otherwise, by any government department or authority.

(2) The tax in respect of taxable supplies made during a tax period shall be paid by the registered person at the time of filing the return in respect of that period under Chapter-V.

Provided that the Board may, by a notification in the Official Gazette, direct that the tax in respect of all or such classes of supplies (other than zero-rated supplies) of all or such taxable goods, as may be specified in the aforesaid notification, shall be charged, collected and paid in any other way, mode, manner or at time as may be specified therein.

(3) The tax due on taxable supplies shall be paid by any of the following modes, namely:-

(i) through deposit in a bank designated by the Board; and

(ii) through such other mode and manner as may be specified by the Board."

As above, section 6(1) and (1A) exclusively deals with "imported goods" whereas section 6(2) and (3) are concerned with ''taxable supplies".

15.The phrases "where no specific provision exists in this Act" as given in section 6(1) above is very important. The provisions of Customs Act, 1969 regarding collection, payment and enforcement including recovery of sales tax on imported goods have been made applicable on the imported goods, provided there is no specific provision available in the Sales Tax Act, 1990. Now, the meticulous study of the said Act confirms that there is no section/provision in the whole Act (Sales Tax Act, 1990) which deals with collection, payment enforcement including recovery of sales tax, on imported goods. All this proves that the sales tax at import stage is not only to be collected but also recovered (in case short-paid or short-levied) as a duty of customs payable under the Customs Act, 1969.

16.Now, I look at this issue under the Customs Act, 1969. Section 18(1) of the said Act also uses the same language for the "imported goods" as used in section 3 of the Sales Tax Act, 1990. For convenience, the same is reproduced hereunder:--

"18. Goods dutiable.---(1) Except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force on,-

(a)goods imported into Pakistan:

(b)goods brought from any foreign country to any customs station, and without payment of duty there, transshipped or transported for or thence carried to, and imparted at any other customs-station; and

(c)goods brought in bond from one customs station to another."

Section 3 of the Customs Act, 1969 defines the "Officers of Customs", as under:-

"3. Appointment of officers of customs.---For the purposes of this Act, the Board may, by notification in the official Gazette, appoint, in relation to any area specified in the notification, any person to be -

(a)a Chief Collector of Customs:

(b)a Collector of Customs;

(c)a Collector of Customs (Appeals);

(d)an Additional Collector of Customs;

(e)a Deputy Collector of Customs;

(f)an Assistant Collector of Customs;

(g)an officer of Customs with any other designation."

Section 4 of the Customs Act, 1969 defines powers and duties of Officers of Customs as "An officer of Customs appointed under section 3 shall exercise such powers and discharge such duties as are conferred or imposed on him by or under this Act or rules made thereunder; ..

17.I would like to examine some relevant and important sections of the Sales Tax Act, 1990, Section 11 of the said Act deals with both Assessment and Recovery of sales tax. Its title/heading is "Assessment of Tax and recovery of tax not levied or short-levied or erroneously refunded' is self-speaking. The minute study of the aforestated provisions of law unambiguously reflects that it is concerned with "taxable supplies" only and has no concern with the sales tax on "imported goods". Further, it mentions about a person who is required to file a tax return. Section 26 of the Sales Tax Act, 1990 defines as to who is required to file a tax return. It stipulate that "Every registered person shall furnish not later than the due date a true and correct return in the prescribed form to a designated bank or any other office specified by the Board, indicating the purchases and the supplies made during a tax period, the tax due and paid and such other information, as may be prescribed". The said definition also mentions about "purchases and supplies" only and does not refer to goods imported into-Pakistan, at all. Here the relevant point is as to who is required to get registered under the Sales Tax Law. Section 14 of the Sales Tax Act, 1990 reads as under:--

"14. Registration.---(1) Every person engaged in making taxable supplies in Pakistan, including zero-rated supplies, in the course or furtherance of any taxable activity carried on by him, falling in any of the following categories. if not already registered, is required to be registered under this Act, namely:-

(a)a manufacturer who is not running a cottage industry;

(b)a retailer who is liable to pay sales tax under the Act or rules made thereunder, excluding such retailer required to pay sales tax through his electricity bill under subsection (9) of section 3;

(c)an importer;

(d)an exporter who intends to obtain sales tax refund against his zero-rated supplies;

(e)a wholesaler, dealer or distributor; and

(f)a person who is required, under any other Federal law or Provincial law, to be registered for the purpose of any duty or tax collected or paid as if it were a levy of sales tax to be collected under the Act.

(2)Persons not engaged in making of taxable supplies in Pakistan, if required to be registered for making imports or exports, or under any provisions of the Act, or any other Federal law, may apply for registration.

(3)The registration under this Act shall be regulated in such manner as the Board may, by notification in the official Gazette, prescribe "

The above provision of law requires an importer to file a sales tax monthly return under section 26 of the Sales Tax Act, 1990, however, that is relating to domestic/taxable supplies of his already imported goods. Section 14(2) as above requires optional registration by an importer.

18.It is quite pertinent here to discuss jurisdiction of the Commissioner, Inland Revenue (Appeals) and Inland Revenue Appellate Tribunal. Section 45-B of the Sales Tax Act, 1990 provides scope of filing an Appeal before a Commissioner of Sales Tax (Appeals). It stipulates that "Any person other than the Sales Tax Department, aggrieved by any decision or order passed under sections 10, 11, 25, 36 or 66, by an officer of Inland Revenue, may within thirty days of the date of receipt of such decision or order, prefer Appeal to the Commissioner, Inland Revenue (Appeals)". The study of sections 10, 11, 25 and 66 shows that all these provisions of law are concerned with "taxable purchases", "zero-rated local supplies or export", "supplies", "input tax" and donot refer to sales tax at import stage, at all. The definition of "Input Tax" as provided under section 2(14) of the Sales Tax Act, 1990 makes the situation further palatable. It clearly makes distinction between sales tax levied on "supply of goods" and sales tax levied on "imported goods". As a ready reference, the said provision of law is reproduced hereunder:--

"2. Definitions.---In this Act, unless there is anything repugnant in the subject or context,

(14) ---input tax, in relation to a registered person, means -

(a)tax levied under this Act on supply of goods to the person;

(b)tax levied under this Act on the import of goods by the person;

(c)in relation to goods or services acquired by the person, tax levied under the Federal Excise Act, 2005 in sales tax mode as a duty of excise on the manufacture or production of the goods, or the rendering or providing of the services;

(d)Provincial sales tax levied on services rendered or provided to the person; and

(e)levied under the Sales Tax Act, 1990 as adapted in the State of Azad Jammu and Kashmir, on the supply of goods received by the person."

As per section 46 of the Sales Tax Act, 1990, any person including an officer of Inland Revenue may file an Appeal before the Appellate Tribunal, who is aggrieved by any order passed by (a) the Commissioner, Inland Revenue (Appeals) under section 45B and (b) the Commissioner, Inland Revenue through adjudication or under any of the provisions of this Act or rules made thereunder, and (c) the Board under section 45A. I have already discussed that the scope of filing Appeals before the Commissioner, Inland Revenue (Appeals) under Section 45B of the Sales Tax Act, 1990 relates to the departmental proceedings under the Sales Tax Act, 1990 pertaining to "supplies" which means "taxable supplies", in plain words "domestic supplies" having no concern with the imported goods. Similarly (b) above pertaining to the Commissioner, Inland Revenue is concerned with matter like Registration, De-registration, Filing of Monthly Return etc. The Sales Tax Rules, 2006 provide domain of the said authority like (i) Compulsory Registration (Rule 6) (ii) Change in particulars of Registration (Rule 7) (ii) De-registration (Rule 11) (iv) Blacklisting and Suspension of Registration (Rule 12) (v) Filing of Monthly Return after six months [Rule 14(3)]. The study of aforestated Rules makes it abundantly clear that none of the situation wherein the Commissioner, Inland Revenue has been empowered to take action and pass Orders, pertains to sales tax at import stage.

The above position adequately confirms that neither the Commissioner, Inland Revenue, the Commissioner, Inland Revenue (Appeals) under section 45B of the Sales Tax Act, 1990 nor the Inland Revenue Appellate Tribunal under section 46B ibid are authorized to deal with any matter pertaining to collection, payment, enforcement including recovery of sales tax at import stage.

19.The essence of above discussion is that the sales tax at import stage is to be collected, paid and recovery of short-levied/ short-paid tax is to be effected as customs duty. Further, the provisions of Customs Act, 1969 have been unambiguously made applicable for collection, payment and recovery of short-levied/ short-paid amount of sales tax. Therefore, the Customs officers are fully competent to not only collect sales tax at import stage but also to make recovery of the short-levied/ short-paid amount of sales tax. They are also competent to invoke relevant provisions of the Sales Tax Act, 1990 including section 3 being charging section and section 6 ibid. Furthermore, Customs officers are also competent to invoke provision of section 148 of the Income Tax Ordinance, 2001 which is a charging section. The officers of Inland Revenue enjoy jurisdiction of collection of sales tax and recovery of short-levied/ short-paid amount of sales tax to the extent of sales tax chargeable on taxable supplies made within Pakistan including such supplies made by an importer, after imports.

20.In view of above, I do not find any grounds to interfere with the impugned Order-in-Original (No.491868 dated 08.03.2016), therefore, the same is held to be a lawful Order. The Appeal is hereby dismissed being devoid of merit.

21.Announced.

HBT/116/Tax(Trib.)Appeal dismissed.