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Petitioner: Messrs JAMIL BROTHERS IRON AND STEEL MERCHANT, MULTAN VS Respondent: COLLECTOR
Court Name: Customs Appellate Tribunal Judge(s): Ch. Muhammad Asghar Paswa l, Ch. Muhammad Mubeen Title:Messrs JAMIL BROTHERS IRON AND STEEL MERCHANT, MULTAN vs COLLECTOR
JUDGMENT
Reported As: 2013 PTD (Trib.) 2082 Result: Appeal accepted Judgment JUDGMENT ' CH. MUHAMMAD ASGHAR PASWAL, (MEMBER (JUDICIAL)).2-This appeal is being directed against Order-in-Original No,27 of 2012 dated 20-11-2012 passed by the Collector of Customs (Adjudication), Model Customs Collectorate, Customs House, Multan. 2. The facts giving rise to this appeal are that Deputy Director, Intelligence and Investigation-FBR, Range Office, Multan received information to the effect that appellant, registered as manufacturer and importer in steel sector with Regional Tax Office, Multan availing the facility of concessionary import of raw material in term of S.R.O.565(I)/2006 dated 5-6-2006 was involved in massive evasion of duty and other taxes through mis-declaration at import stage in connivance with the staff of Model Customs Collectorate of PaCCS, Karachi. Perusal of import authorization certificates did confirm that the certificates were issued for concessionary import of raw material for manufacturing of "Rolled Formed Windows/Doors" and in certain cases for manufacturing of "Choukhats". On further scrutiny, it transpired that serial-27 of the said S.R.O. Provides concessionary import facility. On Electro-galvanized falling under HS code 7210.3010, 7210.4910 and 7210.7020 for manufacturing of composite rolls formed windows and doors in excess of 10% while the aforesaid PCT headings were attracting statutory rate .Of duty at 20%. Since the exemption in custom-duty in excess of 10%, was available to the appellant and as such he was liable to pay customs-duty at the rate of 10% under concessionary regime in term of S.R.O. 565(I)/2006 dated 5- 6-2006 whereas the appellant had been importing the said material by paying customs duty at the rate of zero percent at import stage instead of 10% ad veloram vide Serial-27 of the said S.R.O., thus, evaded Customs duty, Sales Tax and Income Tax to the tune of Rs,59,205,142 at import stage
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and on the basis thereof the appellant was served with a show cause notice dated 10-9-2012 on the allegation that by evading the aforesaid amount of duty and other taxes, they violated the provisions of S.R.O. In question, condition of provisional import authorization certificates read with sections 18 and 19 and sub-clauses (a) (c) of clause (1) of sections 32(1) and 32(2) read with S.R.O. 565(I)/2006 dated 5-6-2006 punishable under clauses 10(A) and 14 of subsection (1) of section 156 of the Customs Act, 1969. The aforesaid show cause 'notice ultimately culminated in Order-in- Original No, 27 of 2012 dated 20-11-2012 impugned in the instant appeal. 3. The appellant has filed the instant appeal before this Tribunal where the main grounds of appeal are as under:-- (a) That as per the provision of S.R.O. 565(1)/2006 dated the importing collectorate has exclusive jurisdiction to call for record and information and to conduct the audit on the, import of the importer. All the consignments of the importer has been imported as Karachi Port so under the S.R.O. 565(1)/2006 Karachi Collectorate has the exclusive jurisdiction to issue the notice and the learned Collector Customs Multan has no jurisdiction to try and to proceed upon the case. It is therefore the impugned order is corum non judice as the same has been passed by the Collector Customs Multan without lawful authority. The relevant pages of the S.R.O. 565(1)/2006 are enclosed as Annex-D. (b) That the show cause notice has been issued on the report of the staff of directorate of intelligence and investigation FBR range office Multan who, according to the notice, on the information that the appellant availed the facility of concession in the rate of duty and taxes under S.R.O. 565(1)/2006 dated 5-6-2006 was involved in massive evasion of duty and taxes through misdeclaration at import stage. It has also been reported in the notice that the staff of directorate collected some record and information in this respect from different corners and submitted the report to this honorable office for adjudicating proceedings. (c) That so the show cause notice was issued to the appellant under clauses (a) and (b) of sections 32(1) and 32(2) read with sections 18 and 19 of the Customs Act, 1969 with the allegation that the appellant evaded the duty and taxes to the tune of Rs,5,92,05,142 without mentioning the period and details of the goods declaration which renders the show cause notice illegal as it is the mandatory requirement that there should be specific and explicit charge in the notice with details of evasion of duties and taxes with the period of its default but the instant show cause notice is totally silent in this regard hence needs to be quashed on this score alone. Reliance in this regard is placed on 2007 PTD 2265, 2010 PTD 1759, 2003 PTD 1257 and 2000 PTD 2388. (d) That the appellant made no mis-declaration at the time of import on the documents like as goods declaration, invoice and packing list etc as to quantity, value and descriptions of the goods imported. The appellant declared all the details required to be mentioned on the import documents as per the customs law and the appellant sought clearance under S.R.O. 565(1)/2012 on the basis of import Authorization issued by the competent authority and thus it was the duty of assessing officer to apply the proper rate of duty as per the provision of S.R.O. 565(1)/2006. It is therefore clear that the appellant did not made any misdeclaration while submitting the import documents at the port and the staff of directorate has completely failed to brought on record any mis-declaration, false statement and forge documents on the part of appellant so the provision of section 32 cannot be invoked in the instant case so the show cause notice in reply is palpably illegal and requires to be annulled on this account as well. (e) That the Directorate General of Intelligence and investigation FBR is formed and established under section 3A of the Customs Act, 1969 and the Directorate was assigned the powers, function and jurisdiction under S.R.O. 486(1)/2007 dated 9-6-2007 issued under sections 3E and 4 of the Customs Act, 1969 where under the staff of the directorate was, empowered to perform certain function and duties. The perusal of the said S.R.O. It clearly revealed that the staff of directorate
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cannot take cognizance and any action under sections 18, 19 and 32 of the Customs Act, 1969 so the action of the Directorate of intelligence and investigation under sections 18,19 and 32 of the Act, 1969 is beyond its power and authority conferred upon them under S.R.O. 486(1)/2007 and so the while subsequent proceedings on the basis of such illegal and without lawful authority act do not have any legal sanctity.. The Honorable Karachi High Court has held in the case of Shehzad Ahmed Corporation reported as 2005 PTD. 23 that no officer of the Directorate had power to detain or seize or re-examine the goods already examined by the assessed by the appropriate officer of the Customs. (f) That the examination and assessment was made under section 80 of the Customs Act, 1969 and the goods were cleared on the payment of duty and taxes calculated by the assessing officer under S.R.O. 565(1)/2006. The officer of customs examine the goods imported into Pakistan under section 80(1) as to ascertain the correctness of the documents relating to the declaration of particular for the purpose of assessment of duties and taxes. The Officer after such examination assessed the duty and taxes leviable on the goods imported which is required to be paid before the clearance of goods. This sort of assessment is an order of the customs officer passed under section 80, on the receipt of goods declaration under section 79 of the Customs Act, 1969 by the importer. The order passed under section 80 of the Act is an appealable order and appeal lies under section 193 of the Act, 1969. It is appropriate to reproduce the relevant part of the section 193 of the Customs Act, 1969:- "Appeals to Collector (Appeals).---(1) Any person [other than] an officer of customs aggrieved by any decision or order passed under [sections 79, 80 and 179 of this Act by an officer of Customs not below the rank of an Assistant Collector] [**] may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order" (g) That as per provision of section 193, the order passed under section 80 is an appealable order and no show cause notice regarding the matter which have been decided through an appealable order can be issued thus the issuance of the instant show cause notice is illegal, without lawful authorities and severely hit by law contains in the Customs Act, 1969. The Honorable Appellate Tribunal of Pakistan has held, in case reported as 2011 PTD 2480 that the goods imported and had been assessed by the competent officer exercising the power under section 79 read with section 80 of the Act, 1969 so the issuance of show cause notice and order passed thereon by the authorities is illegal, unlawful and coram non judice as the only course available to the authority was to reopen the order passed under section 80 as per the provision of section 145 of the Customs Act, 1969. The reliance is also placed on the judgment reported as 2010 PTD 2523. (h) That it is alleged in the notice in reply that the appellant has evaded the amount of duties and taxes to the tune of Rs,5,92,05,142 by not depositing the customs duty, sales ax and income tax on prescribed rates under the Customs Act, 1969 by making the misdeclaration in import documents. This observation of the directorate needs to be annulled, withdrawn and quashed on the following grounds as well; (1) That the directorate did not referred any document which was forged or on the face of that any statement was not correctly declared by the appellant and even the department has miserable failed to establish any mis-declaration as to the origin, quantity of the goods, quality of the goods and even the value of the goods so the charge of mis-declaration cannot be invoked against the appellant. It is the duty of the assessing officer to apply the rate of the duty and other taxes and the same is out-of control of the importer/appellant particularly when the appellant has declared the relevant provision of the customs law and or as the case may be the S.R.O. Issued under the Customs Act, 1969. (2) That customs duty and sales tax is an indirect form of tax and the same is not born by the appellant/importer but the incidence thereof is made the part of casting of sale value which has
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been passed to the consumer who being the ultimate consumer bears all the effect of such indirect form of tax. The appellant paid the value of taxes and duties which were required to be paid on the basis of payment challan created by the appropriate officer of customs dry port and supplied the goods manufactured form such raw material on the value so calculated on the basis of paid indirect taxes and duty. The customs duty paid at import stage has been directly made the part of sale value and whereas the sales tax paid on import stage has been collected from the buyers and thus in this way it is liability of the consumer to all such like duty and taxes. There is no allegation in the show cause levelled against the appellant that the appellant collect the extra amount of sales tax and duty etc. From their buyer but did not deposit the same in the government exchequer hence the observation is beyond the spirit and strength of customs and sales tax law and the philosophy/theme applicable in the case of indirect form of taxes. (3) That determination of the duties and taxes was the duty of the Pakistan Revenue Automation Limited under one customs system and for any wrong calculation or error done by such authority, the importer could not be held responsible. The total consignments of the appellant were assessed and cleared under one customs systems and the responsibility for any fault occurred due to the one customs is on the shoulder of the customs department because the system was under the use and control of the department. The honorable customs Appellate Tribunal has held in the case reported as 2011 PTD 1695 that the importer cannot be held responsible for any fault done by the department under one customs. (4) That the assessing officer or the appropriate officer of the customs enjoys the powers of adjudicating officer which means while making assessment of the goods of the appellant he was acting as and adjudicating officer the court and it was the duty of the court to ascertain the calculated the due amount of the duty and tax leviable on the goods of the appellant. It is also not out of place to mention here that the appellant did not have any excess to the data of customs and he was bond to pay the duty and taxes which had asked to pay by the department and to apply the rate of duty and taxes is also the sole authority of the assessing officer. It is therefore if there was any short payment was made on the direction of the assessing officer, the same cannot be recovered from the importer/appellant at the belated stage particularly when the goods so produced/manufactured from such material had been sold out in the market. (5) That similarly the income tax paid at import stage is not a final discharge of the appellant but it is adjustable towards the annual final tax liability of the appellant company as envisaged under subsection (7) of section 148 of the Income Tax Ordinance, 2001 and the appellant has discharged its income tax liability by filing income tax return for the relevant period under section 114 of the Ordinance, 2001, the sales tax is also adjustable under section 7 of the Sales Tax Act, 1990 against the output tax collected from the buyers but the appellant has already paid the whole output tax on supplies for the period in question so the demand of income tax and sales tax is illegal and unwarranted by law as well. (6) That it is an established principle of practicing statute that no one can be made to suffer on account of act/omission on the part of the court or other statement functionaries and in the instant case the assessm ent was made by the adjudicating authority acting as quasi judicial functions and hence if there was any miss calculation on the part of such functionaries, the appellant cannot be held responsible for that act or omission. The Honorable superior courts of the country while interpreting the legal maxim "Actus curiae neminem gravabit" held that the no person shall make to suffer on the account of the act of court or state functionaries. Reliance in this regard is placed on the judgment Reported as 2002 SCMR 134, 2001 SCMR 424 and 2001 SCMR 1001 and many other. (7) That it has been held by the courts of the country that even if any fact or law was not brought into the notice of the court by the parties, the courts are duty bound to apply the correct provisions of law in their true and correct perspective and thus it was the duty of the assessing officer to apply
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the correct rate of duty and taxes but not that of appellant. Reliance in this regard is placed on the judgments reported as 2002 SCMR 134 and 1992 PLD SC 236. 4. The department filed para wise comments on the grounds taken by the appellant in his appeal as under:- (a) Neither any contravention case was constituted by the Directorate of Post Clearance Audit nor was any order for the recovery of short paid amount of duty/taxes passed by any authority at Karachi. However, the appellant's unit is working in ' the jurisdiction of Intelligence and Investigation-FBR, Range Office, Multan and also registered with RTO, Multan, therefore, the ,contravention was issued as per law and the case of the defrauding the national exchequer was decided by the Collector adjudication MCC Multan and notice for recovery of evaded duty/taxes was issued to the importer by MCC, Multan. (b) The show cause notice in the instant case was issued with lawful, authority on 10-9-2012 and the reply to the same was submitted by the appellant on 16-10-2012 before the competent authority. Hence, an Order-in-Original No, 27 of 2012 dated 20-11-2012 was passed against the appellant to deposit the evaded duty/taxes. (c) As per S.R.O. 565(1)/2006 dated 5-6-2006, it is very much clear that the exemption of customs duty is granted to the extent of customs duty in excess of the rate mentioned against each commodity. In the instant case, minimum, customs duty is to be charged a 10% in presence of valid Exemption/Import Authorization certificate issued under the said S.R.O. 565(1)/ 2006. On the other hand the GDs of the appellant cleared through PaCCS on self-declaration were fraudulently filed at the rate of Zero Percent Customs duty. Resultantly no only the Customs Duty was evaded but also the Income Tax and Sales Tax at import stage was also evaded fraudulently. Hence the national exchequer was deprived of the legitimate revenue to the tune of Rs,59,205,142. The tax fraud was detected by the staff of Directorate of Intelligence and Investigation FBR, Range Office Multan and the appellant was called upon to join the investigation but he never joined the investigation deliberately. (d) It is stated that the PaCCS (Pakistan Automated Customs Clearance System) facilities the confide importers to file GDs electronically for speedy clearance of imports on self-declarations. The petitioner fraudulently deceived the system and caused a huge revenue loss to the National Exchequer to the tune of Rs,59,205,142. (e) The Directorate General of Intelligence and Investigation-FBR, is formed and established under Section 3A of the Customs Act, 1969 and the Directorate was assigned the powers, function and jurisdiction under S.R.O. 486(I)/2007 dated 9-6-2007 issued under the Customs Act, 1969 where under the staff of Directorate was empowered to perform certain functions and duties (Copy enclosed). Furthermore, the appellant is working in the jurisdiction of Intelligence and Investigation-FBR, Range Office, Multan and also registered with RTO, Multan and he is evading duty and taxes here in Directorate's jurisdiction (i,e, Multan), therefore, the action of Directorate of Intelligence and Investigation-FBR, is in accordance with the provision of the Customs Act, 1969 as they pointed out the short realization of Government dues amounting to Rs,59,205,142 to the Collectorate accordingly. (f) It is pointed out that the Deputy Director, Intelligence and Investigation-FBR, Karachi was requested vide this office letter No,923 dated 27-6-2011 to provide the import record of selected units. The said office vides its letter C.No, Misc/01/DCl/ PaCCS/2011/4380 dated 28-6-2011 provided the copies of GD Nos. I-FS1837008 and I-FS-1837005 both dated 28-5-2011 in respect of Jamil Brothers Iron Steel Merchant, Multan. The said record was scrutinized and observed that CD @ 0% was paid by the importer in the said GDs. This fact was also verified from the PRAL data retrieved on 20-6-2011. However, the data retrieved from PRAL data on 16-5-2012 show that the importer in connivance with the Staff of PaCCS Karachi has succeeded to deposit CD @ 10% from the importer
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in Govt. Exchequer at import stage in respect of their clearance affected during 6-1-2011 to 28-5- 2011. However, the scrutiny. Of data reveals that this act of defrauding the exchequer by way of evasion of Customs duty and other taxes have been taking place since 8-10-2009.. Thus the unit has prima facie tried to hoodwink the detecting agency in connivance with the staff of MCC PaCCS by covering the most recent imports. Furthermore, the deposit of partial amount of evaded CD by the importer at his own, tantamount to admission of mis-declaration conducted at their end. (g) The contention of the appellant I against the clear enactment o section 32 of the Customs Act, 1969 which provided .That he appropriate officer shall issue show cause notice in case customs duty is not paid or short paid due to any reason i.e misdeclaration, error, omission or due to any audit. And the appropriate officer under subsection (4) of section 32 of the Customs Act, 1969 after considering the representation, if any of such persons has to determine any amount payable by him. This is a clear methodology under which. Customs duty and other taxes if no paid or short paid on the GDs can be recovered after issuance of show cause notice under this section. Show cause notice under section 32 of the Customs Act, 1969 can be for the short or not paid amount of duty and taxes if it was not paid due to misdeclaration, collusion, any error or omission. If the same is not practiced then whole system of revenue collection will collapse. (h) The show cause notice in the instant case was issued with lawful authority and the reply to the same was submitted by the appellant before the competent authority and the short payment of Rs,59,205,142 has been proved. Hence an Order-in-Original No,30 of 2012 dated 20-11-2012 was passed against the petitioner to deposit the evaded duty/taxes:-- (i) The contention of the appellant is baseless. The contravention of the case was submitted to the Collector (Adj), MCC, Multan along with relevant case papers. The goods were cleared at 0% customs duty with the connivance of appraising staff/clearing agent and deprived the Govt. Exchequer to the tune of Rs,59,205,142 which is recoverable from the appellant. (ii) The appellant said that they paid duty and taxes whatsoever assessed and calculated by the assessing officer. Further, they have sold the goods to the consumer accordingly. The short paid amount of duty and taxes' is to be paid by the importers without any question whether it has been passed to the other or not Even if the short payment of duty and taxes is due to some omission or error, the importer is liable to pay this short payment in terms of section 32 of the Customs Act, 1969. Hence, the logic of appellant is not maintainable and sustainable. (iii) The appellant is trying to escape from the payment of short paid duty and taxes by alleging to PRAL and Customs Department. The goods were cleared at 0% customs duty with the connivance of appraising staff/clearing agent and deprived the Govt. Exchequer to the tune of Rs,59,205,142 which is recoverable .From the appellant. Even if the short payment of duty and taxes is due to some omission or error, the importer is liable to pay this short payment in terms of section 32 of the Customs Act, 1969. Hence, the logic of appellant is not maintainable and sustainable. (iv) The contention of the appellant is baseless. The goods cleared at 0% customs duty with the connivance of appraising staff/ clearing agent and deprived the Govt. Exchequer to the tune of Rs,59,205,142 which is recoverable from the appellant. (v) The referred Sections of Income Tax are related to annual income tax returns and the income tax paid at import stage is final stage is final as the importers have to pay all Government dues at import stage not annually. (vi) The appellant has evaded the payment of duty and taxes to the tune of Rs,59,205,142 with mala fide intention with the connivance of clearing agent and customs appraising staff. To escape from the investigation initiated on 17-1-2012, the petitioner managed somehow an audit from the Regional Tax Office, Multan. As the Sales Tax Audit was not proper remedy to recover the evaded customs duty hence the afterthought planning of the appellant made the direction to be issued to
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the Customs Authorities at Karachi instead of joining the lawful proceedings at Directorate of Intelligence and Investigation FBR, Multan. 5. The learned counsel appearing on behalf of the. Appellant in addition to aforesaid points has contended that the entire action on the part of respondents Nos.2 and 3 as well as the impugned order are void ab initio, being without jurisdiction. According to him, the Deputy Director, Intelligence and Investigation-FBR, Range Office, Multan has made out the case of mis-declaration for violation of section 32 of the Customs Act, 1969 for which he was never empowered or authorized to take any action under the said provision of law by the FBR while conforming powers under certain sections of the Customs Act, 1969 on officers and staff of the Directorate-General of Intelligence and investigation-FBR vide S.R.O. 486(1)12007 dated 9-6-2007. He further contended that section 32 is not included in the provisions under which the powers were entrusted to the said Directorate General and its officers and staff. In this behalf, he relied upon a judgment dated 24-3- 2010 rendered…
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