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Petitioner: Messrs Choco Traders, Karachi VS Respondent: The Principal Appraiser (R&D), MCC Of
Court Name: Customs Appellate Tribunal Judge(s): Jehanzaib Wahlah Title:Messrs Choco Traders, Karachi vs The Principal Appraiser (R&D), MCC Of
JUDGMENT
Reported As: 2021 PTD (Trib.) 1908 Result: Appeal allowed Judgment JUDGMENT JAHANZAIB WAHLAH, MEMBER JUDICIAL-III .---Through this order , I intend to dispose of Customs Appeal No.K-888/2019, filed against Order-in-Appeal No.1974/2019 dated 25.07.2019 passed by Collector of Customs (Appeals), Karachi (hereafter referred to as respondent No.4) who allowed the appeal on alien grounds against the passed re-assessment orders dated 25.09.2018, 01.10.2018, 10.10.2018 and 13.10.2018 by Deputy Collector , Group-I, MCC of Appraisement-East, Karachi (hereinafter referred to as responde nt No.3) in GD No. KAPE- HC- 44433-14-09-2018 . 2. Brief facts of the case are that the appellant during the course of his business activities imported a consignment of 6187.200 kgs of Tea Rose Chocolate from China @ US $ 1.40/kg. Upon receipt of shipping documents the appellant transmitted Goods Declaration (GD) under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 (Rules) with the MCC of Appraisement-East under the regime of Custom Computerized System (CCS), which transmitted view message for payment of upfront duty and taxes of Rs.829,238/- which were paid on 14.09.2018, consequent to which GD' was allotted number KAPE-HC-44433-14-09-2018. Upon appearance of GD on his system, the Assessing Officer opted to get the goods examined as per the contemplation of section 198 and Rule 435 of the Act/Rules and to proceed with after recording his opinion/apprehension transmitted the GD to respondent No.2, who gave his assent and referred the GD to the Deputy Collector , Terminal, who got the goods examined from the officer of his choice, the goods were found in accordance with the declaration in all aspects, report so prepared was uploaded in the reservoir of the GD. The Assessing Officer upon receipt of that on his system passed Assessment Order dated 25.09.2018 while observing in the assessments note "ER/Data vide KAPE-HC-128231-18012018 keeping in view the origin of the product, also VR No.1175/2017 chocolate of Iranian origin" in the capacity of the authority defined
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in Section 2(a) under the provision of Section 80 and Rule 438 of the Act/Rules and transmitted view message to deposit additional amount of duty and taxes of Rs.77,001/- which the appellant paid on 25.09.2018 and the inbuilt authority of the CCS thereafter passed clearance order under the provision of Section 83 and Rule 442. The appellant representative after obtaining delivery order form the shipping company approached the terminal operator for obtaining delivery , who unfortunately , showed their inability to" entertain the appellant's representative by virtue of the fact that the Principal Appraiser (R&D) had put a hold on the GD effectively detaining the consignment under the provision of Section 186 of the Act. The representative of the appellant rushed to him for inquiring as to the reason for the detention to which he opined that the Assessment had not been done correctly . A re-examination was held which re-confirmed the declaration made by the appellant and another Assessment order dated 01.10.2018 was pilled upon an existing assessment order amending Serials 45 and 56 by adducing the remarks as "Eerrero Rocher Brand Chocolate is assessable @ US $ 6.00/kg in terms of VR No.1042/2017. Relevant data of the under reference item that is "Tee Rose" brand chocolate of Chinese origin is not available in the system. Hence, keeping in view assessable value of similar item in above referred VR for "Cagle Brand Compound Chocolate". The goods are being assessed @ US $ 3.25/kg". The respondent No.2 referred the GD to the Principal Appraiser of the Group who upheld the same and referred it to Respondent No.3 who after lapse of nine (09) days pilled another assessment order dated 13.10.2018 while adducing remark in the assessment note reading as "as per VR No. 1042/2017 lowest value of chocolate of all origin (i.e. Tayas Chocolate of Turkish origin) is assessable @ 3.6/kg on the other end assessable value @ US $ 3.25/kg has been notified for compound chocolate of Cagle Brand of Turkish Origin. The impugned brand i.e. "Tee Rose" is of China origin and is inferior to brand of Europe/T urkey etc. Under the aforesaid fact and circumstances and keeping in view the criteria of assessment reflecting from VR No.1042/2017, the impugned brand is assessed as US $ 3/kg". Being aggrieved and dissatisfied from the multiple reassessment orders, the appellant assailed its vires before respondent No.4 on 13.11.2018 vide Appeal No. Cus/2984/2018/MCCA(E), multiple hearings were conducted by the respondent No.4 who thereafter passed Order-in-Appeal dated 25.07.2019 while allowing the appeal in favor of the Appellant on the grounds and law not enumerated in the memo. of appe al and having no nexus whatsoever with either facts and grounds of the appeal. Para 4 of the impugned Order is relevant which read as:- "I have examined the case record and arguments of both the sides and have given careful consideration to the fact of the case. The Tee-Rose brand chocolate imported from China has not been covered in Valuation Ruling No.1042/2017, hence, as per para 6 of the instant Valuation Ruling, the same cannot be applied to it. Further , Valuation Ruling No.1175/201 7 pertains to goods of Iran origin, hence, cannot be applied either . The fact that the importer has not provided any substantial proof of correctness or genuineness of transactional value, also leads to the conclusion that the declared value may also not be acceptable. Hence, it would be prudent for the department to revisit the assessment in this case and either recourse to get the value as provided in the section 25 of the Customs Act, 1969 or may refer the case to Director , Valuation for providing the appropriate Customs Value of the Tee-Rose Chocolates of China origin. T ill that time the declared value may be accepted. The appeal is allowed" 3. The appellant filed the appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the case strictly in accordance with those. No cross objections under subsection (4) of Section 194A of the Act were filed within the stipulated period of 30 days and not even during the creation of this Order , by respondent No. 1. However , comments were submitted, which can not in any manner be construed as cross objections, rather are opinion on the facts and pounds of the appeal by respondent No.2, hence, do not fall within the ambit/definition of cross appeal but were nevertheless placed on record for perusal. On the date of hearing representative of the respondent averred that the order passed by respondent No.4 is correct in fact and law for validation of the said fact he placed reliance on the comments. 4. Rival parties heard and case record perused. It is just and proper to decide first the vital aspects that as to whether the Principal Appraiser (R&D) is empowered to put a hold on the GD/detain the consignment under the provision of Section 186 of the Act, which has been allowed to be released after passing of valid clearance order under the provision of Section 8:3 and Rule 442 on the strength of assessment order passed by the authority defined in section 2(a) under section 80 and Rule 438 of the Act/Rules, in exercise of the powers vested upon him
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through SRO 371(I)/2002 dated 15.06.2002. Upon perusal of the record of the case, I have observed that the assessment order under section 80 and Rule 438 in the present case was passed on 25.09.2018 and the re- assessed amount was paid on the same date and so the clearance order was passed under section 83 and Rule 442 of the Act/Rules. Resultant, no occasion was available for the Principal Appraiser (R&D) or his superior/ subordinate A to put a hold on the GD/detain the consignment of the appellant under section 186 of the Act. 5. For detention of any consignment by the authority empowered tinder entry 92 of SRO 37(I)/2002 dated 15.06.2002, adherence of expression of Section 186 is mandatory which reads as under:- 186: Detention of Goods pending payme nt of fine or penalty;- (1) when any goods or fine or penalty has been imposed or while imposition of any fine or penalty is under consideration, or pendin g any inquiry or investigation, in respect of any goods such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed. (2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any goods belonging to the same owner pending of such fine or penalty . 6. Upon conscientious analysis of Section 186, it is observed that the said section comes into play during the course of imports, i.e. if any case has been adjudicated by the competent authority against an importer and through which he held the charges established as leveled in the show-cause notice and imposes fine and penalty , which importer has not B paid or any inquiry or investigation in respect of any goods is under way for imposition of fine and penalty . The empowered officer can detain forthcoming consignment of the same owner/importer till the time fine and penalty are paid. The case of appellant is that, against him no order is infield through which fine/penalty has been imposed upon him and has not been paid or order so passed has not been assailed by him before the forum expressed in the Act. Neither was any inquiry nor any investigation in respect of any of the appellants imported consignment sans the instant underway for decision for imposition of penalty . Resultant, his lawful imported/cleared consignments after payment of leviable duty and taxes on the strength of assessment order passed by the authority under Section 80 and Rule 438 of the Act/Rules cannot be detained under any pretext by any officer of customs, respondent No.1 is not exception as held by the Hon'ble High Court of Sindh in its judgments reported at 2013 PTD 628 Muhammad Ali v. FOP that "once goods have been examined and assessed for duty and taxes and reassessed in terms of S.80 of the Customs Act, 1969 and the same were paid and clearance of the consignment had been made and goods were "out of charge"; Customs Authorities had no jurisdiction to refuse release of such goods nor the same could be detained on the basis of alleged incorrect assessment. The Customs Authorities could reassess only if duty and taxes were not levied correctly by invoking the provisions of section 32(3) of the Customs Act, 1969 provided the same were attracted to facts and circumstances of the case---Neither any inquiry of investigation was pending nor any proceeding for mis- declaration had been initiated against the petitioner----No notice for detention, seizure or confiscation was issued--- -Detention of the petitioner's consignment was therefore illegal and without jurisdiction and in 2014 PTD 582 Amir Siddiqui v. Federation of Pakistan and 03 others that "authorities could detained such goods in respect of which inquiry or investigation was pending and not the goods which had been or were been imported by a person. The subsequent imported goods belonging to a same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remained un-paid. By no stretch of imagination all subsequent import can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In our opini on no such action is permitted under this provision. The respondents are only authorized to take action for issuance of detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against the person. The procedure and mechanism provided Section 202 of the Customs Act, 1969 is entirely independent of any action taken in terms of Section 186 of the Act. It is not the case of respondent that any adjudication has been done either in respect of the pods allegedly cleared against fake GD's or even the goods covered by the instant petition and thereafter detention notices have been issued. With this the Hon'ble High Court of Sindh declared the detention of the consignment without lawful authority by holding that provision of Section 186 of the Customs Act, 1969 did not empowers the authority to do so." and 2015 PTD 560 M/s. O.S. Corporation v. FOP and othe rs, "where no fine or penalty has
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been imposed or even under consideration the provision of Section 186 are not relevant---the authorities acting on a hunch have detained goods as the exit gate, even though taxes and duties have been paid and the goods have been released, detaining goods at the exit gate after having releases them is totall y contrary to the provision of the Act, 1969". Hence, in categorical terms hold that putting a hold on GD/detaining_ of consignment of the appellant by the respondent No.1 is not only witho ut lawful authority even jurisdiction and patently in derogation of Section 186 of the Act and the law laid down by the Superior Judicial Fora. 7. The remarks adduced in the assessment note corresponding to assessment order dated 25.09.2018 passed by respondent No.2 speaks volume about malice on his part as he infact passed reassessment order dated 01.10.2018 under the provision of Sectio n 80(3) of the Act after passing of clearance order under Section 83 and Rule 442 of the Act/Rules, which is not permitted under law for defeating the settled law by the Superior Judicial Fora in this context he gave a deceptive look by giving reference of a valuation Ruling of a completely different product which was assessable at USD $3.25 which had no nexus with the imported goods. The reassessment by the respondent No.2 can only be done by the respondent No.2 within the process of assessment only and that also upon filing a review by an importer in terms of Rule 441 ibid., wherein, no suo motu powers are available either with respondent No.2 or any other authority , evident from its expression reading as "441: Review of assessment:- The importer or his agent may file request for review to Customs online giving detailed reasons for disagreement with Customs. Customs shall review the asse ssment on the basis of submissions by the importer or his agent. "No review under the said rule was ever filed by the appellant, instead he accepted the passed assessment order dated 25.09.2018 by respondent No.2 and paid the amount of reassessed duty and taxes. Consequent upon which clearance order under the provision of section 83 and Rule 442 was passed by the inbuilt authority by the CCS rendering the reassessment order passed by respondent No.2 is without lawful authority/jurisdiction and as such void ab-initio. Hence, not sustainable, having not a leg to stand upon. 8. The legislature through a money bill formed/established the Directorate General of Post Clearance Audit (DGPCA) by inserting 3DD in the Act and their officers have been delegated power by the Board through SRO 500(1)/2009 dated 13.06.2009 for conducting audit under section 26(2) of the Act, of the importers books of account maintained under Section 211 after serving notice/summons under clause (a) of Section 26A ibid, they are empowered to look into every aspect of the declaration made by the importer and assessment order passed by the competent authority of the Clearance Collectorate under Section 80 and Rule 438 of Act/Rules by preparing and issuing an audit observation to the importer for clarification. If the reply to the audit observation fails to settle the issue the DGPCA frames contravention report and forwards it to the Clearance Collectorate, which forwards it to the respective Collectorate of Customs Adjudication for issuance of show-cause notice under Section 180 of the Act, and thereafter passing of Order-in-Original by the authority defined in Section 179 ibid. The Principal Appraiser (R&D) and respondent No.2 effectively assumed the powers of officials of DGPCA and conducted the audit post clearance of the GD of the appellant under Section 26(2) while exercising the powers specifically delegated to the officials of the DGPCA. Neither was the Principal Appraiser (R&D) nor his superiors/subordinates empowered to encroach the sovereign jurisdiction of DGPCA under any circum stances, as that will render the formation of DGPCA by the legislature through Section 3DD of the Act, and SRO 500(1)/2009 dated 13.06.2009 as redundant. Hence, Principal Appraiser (R&D) and respondent No.2 acted without power/jurisdiction, in conducting the audit of the cleared consignment. 9. It is now a legal fiction that the consignment which has undergone the process of passing assessment order under the provision of IE Section 80 and Rule 438 of the Act/Rules for levy of duty and taxes, which were paid and thereafter valid clearance order dated 28.09.2018 as contemplated in Section 83 and Rule 442 ibid has been passed by the competent authority in exercise of the powers vested upon him through SRO 371(1)/2002 dated 15.06.2002. Such order is an appealable order and can't be disturbed by any other authority including Principal Appraiser (R&D) and respondent No.2, with the exception of preferring an appeal under the provision of Section 193 of the Act as was/is invariably done by an importer , in case he felt the assessment order so passed is nullity to the fact/law . Similarly , if the Principal Appraiser (R&D) and respondent No.2 were of the view in the instant case of the appellant proper assessment has not been carried out, the only option left with them to adopt the mechanism
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available in the Act, for the reopening of the impugned assessment order by filing an appeal before the Collector of Customs, Appeals under the provision of Section 193 of the Act either by him directly or through respondent No.2, in which they should had incorporated all of their apprehensions, opinions/f indings, including contravening provisions of the Act and so the applicable penal clauses. Upon receipt of that the Collector of Customs, Appeal have to go through the facts and grounds of that, thereafter if he think fit that in the case under appeal correct duty and taxes have not been either or paid on the basis of found goods, is empowered to issue a notice under section 32 of the Act as enunciated in 3rd proviso of Section 193A to the respondent importer/appellant) and after receipt of reply of the said notice, the Collector of Customs Appeals has to decide the appeal in the light of the issued show- cause notice and reply . In the instant case no appeal has been filed either by the Principal Appraiser (R&D) or respondent No.2 despite mandated under law, instead Principal Appraiser (R&D) and respondent No.2 assumed the powers under Section 195 of the Act and reopened a valid assessment/clearance order dated 28.09.2018 passed under the provision of sections 80, 83 and Rules 438 and 442 of the Act/Rules. Neither Principal Appraiser (R&D) nor respondent No.2 are empowered to reopen valid assessment order passed by the authority defined in Section 2(a) of the Act, in exercise of powers vested upon him through SRO 371(I)/2002 dated 15.06.2002. Both acted without power/jurisdiction, hence their action deems to be without any lawful authority and as such ab-initio, null and void as held by Superior Judicial Foras in umpteenth reported judgments e.g. 2014 PTD 1256 M/s. Paramount International (Pvt.) Ltd. v. FOP and others, wherein their lordship of High Court opined that "department or an Officer of Customs, if aggrieved, by any decision or order passed by an officer of customs below the rank of additional collector could prefer an appeal before the Collector (Appeal)---lst order-in-original passed in the subject matter was an appealable order for both the parties, therefore option to reopen and order pass under the adjudication hierarchy was not available to the Collector . Even the Collector of Customs Adjudication could not oversee or exercise any right of re-opening of any order which has been passed by an officer lower in rank but acting as an adjudicating authority . Impugned order was set-aside and Constitution Petition was allowed." The CPLA No.105-K of 2014 filed by Collector of Customs and others against the order of the High Court has been dismissed by the Hon'ble Supreme Cour t of Pakistan while refusing leave to appeal. Whereas, the High Court of Balochistan in 2019 PTD 1712 titled as Collector of Customs, MCC, Quetta v. Al-Habib Enterprises and Engineering and others , while dismissing the SCRA of the depa rtment held that "after assessment of leviable duty and taxes under S.80 of Customs Act, 1969 and payment thereof and after clearing the vehicle under Section 83 Customs Act, 1969, the available remedy of filing appeal under Section 193 of the Customs Act, 1969 was not availed by the concerned officials of the Collectorate of Customs, Additional Collector of Customs, (Adjudication) had no jurisdiction under the provision of Customs Act, 1969 to issue show-cause notice and to passed by Order- in-Original. No question of law having arisen out of the impugned of the judgme nt passed by Appellate Tribunal warranting interference by High Court under Section 196, Customs Act, 1969. Reference were dismissed in circumstances." 10. For determination of essence and spirit of reassessment orders passed by respondents Nos.2 and 3 dated 01.10.2018, 10.10.2018 and 13.10.2018 reproduction of section 80(2) & (3) is vital and which reads as under:- . "(2) An officer of customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents as and when and in a manner deemed appropriate, during or after release of the Customs; (3) If during the checking of goods declaration it is found that any statement in such declaration or documents or any information so furnished is not correct in respect of any matter relating to the assessment, the goods, shall, without prejudiced to any other action which may be taken under this Act be reassess to duty ." 11. Upon plain reading of subsection (3) of Section 80, it is observed that it is dependent on subsection (2), hence, unless F subsection (2) is not complied with in letter and spirit no action can be taken under section 80(3) of the Act. Meaning thereby that re-assessment under Section 80(3) after release of the goods is permitted only after calling for the documents as expressed in Section 80(2) ibid. Upon receipt which or the information so transmitted/submitted or the statement given by the importer to the Customs Authority if are found to be incorrect in respect of earlier assessment. Upon perusal of the import documents, examination report and documents scanned
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by appellant and assessment order dated 25.09.2018 passed by Assessment Officer, it has been observed that description and quantity was the same as declared. No visible mis-declaration in any aspect has either been made by the appellant in material particular nor has any illegality been committed by the competent authority passing the assessment order . In the instant case no re-assessment in the garb of any other manner was warranted under Section 80 (3) of the Act being in nullity to the provision of Section 29 of the Act. It is of vital importance for reaching at a just decision to visit and understand essence and spirit and constitutional and legislature construction of Section 29 containing expression Restriction on amendment of goods declaration" reading as: "Section 29: except as provided in section 88 no amendment of goods declaration relating to goods assessed for duty on declared value, quantity or description thereof shall be allowed after such goods have been removed from the port area -or assigned Customs Reference Number electronically , as the case may be." (Emphasis supplied) 12. The rationale and legal construction of the above expression is that no amendment under section 205 of the Act, is allowed in the columns of the declared value, quantity or description after removal of the goods from the customs area for home consumption as contemplated in section 79(1) after passing of valid assessment/clearance order under Sections 80 and 83 and Rule 438 and 442 ibid, or after shipment of the exported goods through GD for export transmitted under Section 130 and Rule 444 aftercompletion of codal formalities defined in Section 131 and G Rules 450 of the Act/Rules or wherein Customs Reference Number is allotted to the GD electronically . A cap has been…
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