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Petitioner: Messrs GOLD TRADE IMPEX through partner and another VS Respondent: APPELLATE JUDGMENT
Court Name: Sindh High Court Judge(s): Faisal Arab, Aqeel Ahmed Abbasi Title:Messrs GOLD TRADE IMPEX through partner and another vs APPELLATE
JUDGMENT
Reported As: 2012 PTD 377 Result: Order accordingly Judgment JUDGMENT AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the order dated 29-4-2010 passed by the Customs, Excise and Sales Tax Appellate Tribunal, Bench-III, Karachi in Customs Appeals Nos.K-531-537, 523-527, 615-631, 517-520, 601-614, 597-600, 383-391, 392, 393, 595-596, 193-194 and 195 of 2007, the applicants have filed the above instant Reference Applications under section 196 of the Customs Act, 1969. Since the facts and questions of law involved in all these cases are common, therefore, we intend to dispose of the above reference applications through a common judgment. 2. Initially the applicants raised 16 questions for opinion of this Court, however, during the course of arguments, counsel for the applicants has pressed the following questions, with amendment, which are said to have arisen from the order of Tribunal:- "(1) Whether in the facts and circumstances of these cases, the respondent instead of invoking section 32-A, has incorrectly invoked the provision of section 32 of the Customs Act, 1969?- (2) Whether the show cause notice is hopelessly barred by time under section 32-A of the Customs Act, 1969? (3) Whether the customs authorities in presence of declared goods as RSS (Ribbed Smoked Sheet) can reclassify the goods and can raise objections regarding liquid shape or in sheet? (4) Whether the past and closed transaction can be reopened for reclassification which was duly assessed under section 79 of Custom's Act, 1969?
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(5) Whether the customs authorities can demand the alleged duties and taxes when at the time of clearance no objection is raised in presence of declaring the goods in its forms? (6) Whether the impugned orders are passed in violation of sections 179, 193(A) and 194(B) of Customs Act, 1969? 3. Brief facts as noted by the Tribunal in its impugned order are that all the importers and their clearing agents in all the reference applications imported various consignments from India, and filed Goods Declaration on various dates in the year 2005 in terms of section 79(1) by using the facility of automated system of Paccs, under self-assessment procedure, hence the goods were cleared without examination. They declared HS Code of the goods as 4001.1000, and description of goods as Natural Rubber and determined tax liability by claiming exemption of Custom duty and Sales Tax and paid advance Income Tax @ 1%. Subsequently an information was received that the appellants, with the connivance of their clearing agent, had deliberately and knowingly misdeclare HS Code as 4001.1000 instead of correct HS Code as 4001.2100, with mala fide intent to evade the customs duty sales tax and AIT because it was very much clear that exemption from CD was available under S.12.0.567(1)/2005 dated 6-6-2005 and sales tax under S.R.O. 621(1)/2005 dated 17- 6-2005 to the HS code 4100.1000 whereas exemption in sales tax was not available to goods falling under HS Code 4001.2100 and exemption from CD was available on HS Code 4001.2100 under S.R.O.570(I)/2005 dated 6-6-2005 only if goods were imported from Sri Lanka and fulfilled conditions of the said notification. Similarly, AIT was leviable @ 6% on HS Code 4001.2100 but @ 1% at HS Code 4001.1000 under the said S.R.O Pakistan Custom Tariff clearly classifies RSS (Ribbed Smoked Sheets) under HS Code 4001.2100, leviable to CD @ 5 % sales tax, @ 15% and AIT @ 6%. By clearing the goods through misdeclare description and HS code and also unlawfully availing the benefit of the aforesaid notifications, the importers and their customs clearing agent inflicted loss to the Exchequer in all these cases. They were accordingly charged under the relevant provisions of law as quoted in the impugned orders. 4. Show-cause notices containing the above allegations were issued to the applicants, which were responded through written letter and by their counsel i.e. Messrs Sardar M. Younus, whereafter order-in-original in all the above cases were passed and the importers and their agents were accordingly charged under the relevant provisions of Customs Act in the following manner:- "I have gone through the facts of the case as well arguments of both sides. Under automated clearance system, enough guidance is available to the importers to determine correct classification as well as their liability under section 79(1) of the Act. The record shows that hundreds of G.Ds of the same term i.e. RSS of different grades was cleared under correct classification of 4001.2100. The HS Code 4001.1000 'is specified for LATEX, "which is liquid and not in the form of solid sheets". The exemption from sales tax and income tax was available to the goods of HS Code 4001.1000 i.e. The primary form of Natural Raw Rubber and not the. Intermediary product of Rubber i.e. RSS. It is a clear cut case of misdeclaration under section 32 of the Customs Act, 1969 where the importers have tried to evade legitimate government revenue by claiming the clearance of goods under wrong HS Code and illegal benefit of S.R.Os. In view of the facts of the case brought on record and other corroborative evidence. I am of the opinion that the charges spelled out in the show cause notice issued to the importer in this case stand established. I, therefore, order that the imported goods be classified under correct HS Code 4001.2100 and evaded duties and taxes be recovered from the importer. I also impose penalty on the importer equal to 100% of the evaded amount of duties and taxes under clause (14) section 156 (1) of the Act, for violation of sections 79(1), 32(1) and 32(2) of the Act, I also impose a personal penalty of Rs.1,00,000 on the clearing agent for his act of misdeclaration." 5. The above orders were impugned by the applicants through appeals before the Collector of Custom (Appeals). However, he said appeals were rejected in the following manner:--
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"I have examined the case record and given due consideration to the arguments made before me. There is categorical evidence on record to' establish that the goods actually imported were intermediary product of rubber of PCT heading 4001.2100 (ribbed smoke sheets-RSS) and not primary form of natural rybber of PCT heading 4001.1000 as declared. By declaring the impugned goods as Natural Rubber RSS-4/5 (which were infact intermediary product of rubber) of HS Code 4001.1000 and obtaining undue benefit of Notifications S.R.O. 567(1)/2005 dated 6-6-2005 and S.R.O. 621(1)/2005 dated 17-6-2005 in respect of customs duty and sales tax respectively and paying no sales tax and paying lesser amount of advance income tax the appellants caused a revenue loss of Rs.558965 to the Exchequer in this case alone. Thus, it is not a simple case of quoting incorrect HS code (4001.1000 instead of correct 4001.2100) but a well thought of plan of committing fiscal fraud by way of taking undue"advantage of the automated system of clearances under PaCCS. Even otherwise in terms of the self-assessment of the tax liability under PaCCS the importer is fully, responsible for the implications of quoting wrong HS code. The appellants had cleared dozens of consignments (so far reported) and consistently executed their fraudulent design over a long period of time,causing huge loss of revenue to the Exchequer. It is also on record that many other identical consignments were cleared under HS- code 4001.2100 from the Model Customs. Collectorate. Therefore, the appellants were clearly aware of the correct HS code of the commodity imported by them and instead deliberately chose the irrelevant description/HS code with the mala fide intent for wrongful gain. It needs to be mentioned that not a single consignment imported by the appellants was examined/stopped due to the automated nature of the system of clearance. The plea that there was an established and long standing practice of clearing such consignments under HS code 4001.1000 is clearly belied by the evidence on record. Therefore, the authorities quoted by the learned counsel and the issues framed by him are not relevant to the facts of the instant case. The order passed in this case is very logical and speaking and the penal action taken against the appellants is also in conformity with the gravity of offence committed by them. The arguments advanced by the learned counsel find no support from the evidence available on record. Therefore, I hold that the impugned order is correct in law and on facts and there is no reason to interfere with the same. The appeal is rejected accordingly." 6. The applicants being aggrieved by the order passed by the Collector (Appeals) filed appeals before the Customs, Excise and Sales Tax Appellate Tribunal, who vide its impugned order dated 29-4-2010 dismissed the appeals of the applicants. The applicants have assailed the aforesaid order before this Court by-raising the questions as mentioned hereinabove, for opinion of this Court. 7. Learned counsel for she applicants has contended that the impugned order is erroneous in law and the same is based on misconceived facts. Per learned counsel, order-in-original has been passed on the basis of show-cause notice issued under section 32 of the Customs Act, 1969, which is not attracted to the 'facts of this case. It is contended that in view of specific provision of section '32-A of the Customs Act, 1969, relating to cases of fiscal fraud the show-cause notice could have only be issued under section 32-A(c) and not under section 32 of the Customs Act, 1969. Learned Counsel further argued that for invoking provision of section 32-A, notice is required to be issued within 180 days, whereas in the instant case Show-cause notice has been issued after abdut one year of the alleged misdeclaration. It is further contended by the learned counsel that once goods were cleared through PACCS system without any objection the said transaction being past and closed transaction cannot be reopened by the department on the allegations of misdeclaration, whereas mentioning a wrong PCT heading does not amount to misdeclaration. It has been further argued that the order of the Tribunal has been passed beyond the period of limitation as provided under section 194-B of the Customs Act. Per learned counsel, as per first proviso of Section 194-B,
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an appeal is to be decided within sixty days of filing the appeal, whereas in the instant case it has been passed much after the lapse of above specified period, hence the order of the Tribunal is illegal. Per learned counsel, the order of Tribunal is also violative of the provision of section 194-C(8) as the same is not in consonance with the provision of sections 480 and 482 Cr.P.C. Learned counsel finally argued that the impugned order as well as the order-inoriginal and the order-in- appeal passed by the forums below are liable to be set aside. In support of his contention, learned counsel has placed reliance on the judgments reported as (i) Messrs Haji Ismail and Company v. Customs, Excise and Sales Tax Tribunal Karachi Bench and others SBLR 2008 Sindh 1699, (ii) Messrs Muzzamal Brothers v. The Central Board of Revenue and others PLD 1997 Lahore 36, (i.e) Messrs Abbasi Enterprises v. Collector of Sales Tax 2008 PTD 2025, (iv) Filters Pakistan (Private) Limited v. Federal Board of Revenue and 2 others 2010 PTD 2036 and (v) Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072. 8. Conversely, learned counsel for the respondent has opposed the contention of the learned counsel for the applicants and supported the impugned order passed by the Tribunal. It has been contended by the learned counsel for the respondent that these are the clear cases of misdeclaration whereby the applicants, by misusing the facility of automated system of clearance. PACCS, sought benefit of the concessional rates of duties and taxes by misdeclaring the imported goods under wrong PCT het ding. Learned counsel further submitted that the applicants themselves have been importing the natural rubber (latex) by declaring the HS code 4001.2100, whereas in the impugned transactions they deliberately declared the HS Code as 4001.1000 to get the benefit of S.R.O. 567(1)/2005 dated 6-6-2005 and S.R.O. 621(1)/ 2005 dated 17-6-2005 in respect of customs duty and sales tax respectively without paying any duty and taxes, hence deliberately caused loss to the exchequer. Learned counsel argued that orders of forums below based on pure finding of facts, whereas no question of law arises from the impugned order, hence all the instant reference applications are liable to be dismissed in limine. 9. From the perusal of the impugned order-in-original it is seen that applicants have been charged of misdeclaration and evasion'of duty and taxes. There are concurrent findings by the customs authorities as well as. By the appellate Tribunal whereby it has been held that the applicants deliberately, by misusing the facility of automated system of clearance under PACCs, misdeclaraed the goods their value and HS code deliberately and caused loss to the exchequer. In order to examine the veracity of such finding by the custom authorities, it will be advantageous to examine the provision of sections 79 and 32 of the Customs Act, which read as follows:-- "79 Declaration and assessm ent for home consumption or warehousing.---[(1) The owner of any imported goods shall make entry of such goods for home consumption or warehousing or for any other approved purposes, within fifteen days of the arrival of the goods, by,-- (a) filing a true declaration of goods, giving therein complete and correct particulars of such goods, duly supported by commercial invoice, bill of lading or airway bill, packing list or any other document required for clearance of such goods in such form and manner as the Board may prescribe; and (b) assessing and paying his liability of duty, taxes and other charges thereon, in case of a registered user of the Customs Computerized System: [Provided that if, in case of used, goods, before filing of goods declaration, the owner 'makes a request to an officer of customs not below the rank of an Additional Collector that he is unable, for want of full information, to make a correct and complete declaration of The goods, then such officer subject to such conditions as he may deem fit, may permit the owner to examine the goods and thereafter make entry of such goods by filing a goods declaration after having assessed and paid his liabilities of duties, taxes and other charges:
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Provided further that no goods declaration shall be filed prior to ten days of the expected time of arrival of the vessel.] (2) If an officer, not below the rank of Additional Collector of Customs, is satisfied that the rate of customs duty is not adversely affected and that there was no intention, to defraud, he may, in exceptional circumstances and for reasons to be recorded in writing, permit substitution of a goods declaration for home consumption for a goods declaration for warehousing or vice versa. (3) An officer of Customs, not below the rank of Assistant Collector of Customs, may in case of goods requiring immediate release allow release thereof prior to presentation of a goods declaration subject to such conditions and restrictions as may be prescribed by the Board." "32. [Untrue] statement, error, etc.---If any person, in connection with any matter of customs,-- (a) makes or sips or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or (b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, [or] (c) submits any false statement or document electronically through automated clearance system regarding any matter of Customs,] [knowing or having reason to believe that such document or statement is false] in any material particular, he shall be guilty of an offence under this section. (2) Where, by reason of any such document or statement as aforesaid or by reason of some collusion, 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 [five] years of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice. (3) Where, by reason of any inadvertence, error or misconstruction, 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 [three years] of the relevant date requiring him to show cause why he should not pay the amount specified in the notice [Provided that if the recoverable amount in a case is less than one hundred rupees, the Customs authorities shall not initiate the aforesaid action.] [(3A) Notwithstanding anything contained in subsection (3), where any duty or charge has not been levied or has been short-levied or has been erroneously refunded and this is discovered as a result of an audit or examination of an importer's accounts or by any means other than an examination of the documents provided by the importer at the time the goods were imported, the person liable to pay any amount on that account shall be served, with a notice within three years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice. [Provided that if the recoverable amount in a case is less than one hundred rupees, the customs authorities shall not initiate the aforesaid action.] (4) The appropriate officer, after considering the representation, if any, of such persons as is referred to in subsection (2) or subsection (3) shall determine [any amount, payable by him under this Act,] which shall in no case exceed the amount specified in the notice, and such person shall pay the amount so determined. (5) For the purposes of this section, the expression "relevant date" means-- (a) in any case where duty is not levied, the date on which an order for the clearance of goods is made; (b) in a case where duty is provisionally assessed under section 81, the date of adjustment of duty after its final assessm ent;
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(c) in a case where duty has been erroneously refunded, the date of its refund; (d) in any other case, the date of payment of duty or charge; (e) in case of clearance of goods through the Customs Computerized System, on self assessment or electronic assessm ent, the date of detection.]" ) . 10. From bare perusal of the provisions of section 32 as referred hereinabove, it is clear that law itself provides a self-contained mechanism for retrieving the loss of revenue, caused on account of misdeclaration or on account of submitting untrue statement within the prescribed period. In the instant cases admittedly, show-cause notices have 'been issued within a period of one year, whereas misdeclaration on the part of the importer and his clearing agent by mentioning the wrong PCT with intent to evade duty and taxes is also manifest from their conduct. We are of the opinion that this is a clear case of misdeclaration, whereas goods imported by the applicants have been correctly ,held to be liable to duty and taxes as well as penalty thereon under the provisions of customs Act, 1969. 11. After the amendment brought in section 79 of the Customs Act, 1969 through Finance Act, 2006, it provides that the owner of any imported goods is bound to file complete and true goods declaration in respect of goods imported for home consumption or warehousing within fifteen days of the arrival of the goods. Complete and correct particulars of the goods imported, duly supported by commercial invoice, bill of lading or airway bill, packing list or any other documents as required for clearance of such goods, are also required to be given while submitting the goods declaration. It is the duty of the importer and his clearing agent to self-assess and pay the liability of duty, taxes and other charges thereon, through Automated Computerized Customs System of (i.e. PACCS) under which system the consignment is not physically checked by the customs authorities, whereas only few consignments are examined through random selection by computer. This mechanism on the one hand provides facility to the importer to get the consignment released through self-assessm ent without any departmental intervention or hackles of examination and assessm ent, whereas, at the same time, also cast upon him a responsibility to make, true declaration of the good's imported by making proper payment of duties and taxes payable as per law. 12. From perusal of the record of the instant cases, it appears that the applicants, by misusing the facility of automated system under PACCS, filed goods declaration electronically wherein it was declated that the goods are primary form of natural rubber falling under HS code 4001.1000 and claimed the benefit of S.R.O. No:567(I)/2005 dated 6=6-2005 and S.R.O. 621(1)/2005 dated 17-6- 2005. Subsequently, on information received and on checking of the consignments, it was learnt that with the connivance of their clearing agents, the owners of the imported goods deliberately and knowingly misdeclare HS Code 4001.1000 instead of correct HS Code 4001.2100 with an intention to evade custom duty, sales tax and AIT. The H.S. Code in the Pakistan Tariff is reproduced as under:- "4001.1000 -Natural rubber latex, whether or not Prevulcanized. -Natural Rubber in other forms. 4001.2100 -Smoked sheets." Pakistan Custom Tariff clearly classifies RSS (Ribbed smoked sheets) under HS Code 4001.2100 liable to custom duty at the rate of 5% sales tax, @ 15% and AIT @ 6%. All the foruins below while giving concurrent finding on the facts of these cases held that goods actually found in the consignments were intermediary product of rubber falling under HS code i.e. 4001.2100, and not in primary form of natural rubber falling under HS code i.e. 4001.1000, therefore, the applicants, deliberately given wrong classification in the goods declaration to evade duty and taxes. Learned counsel for the respondent has pointed out that the applicants themselves have been declaring
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the correct HS code for the same goods and getting the goods cleared by paying full duty and taxes, whereas through transactions in dispute, they have got their consignments released without paying proper duty and taxes, hence caused loss of revenue to the public exchequer through misdeclaration. The applicants, with the connivance of their clearing agents, have deliberately misdeclare the description of goods, its value, and HS code in order to get the benefit of the above mentioned S.R.Os. By claiming exemption and reduced rate towards duties and taxes, otherwise leviable on the imported goods. It may be observed that the mala fide on the part of the applicants and the mens rea, while mis-declaring the classification, value of goods and HS Code, on goods declaration submitted under self-assessment procedure through automated Computerized Customs System of PACCS, is manifest from the fact that under similar circumstances while importing similar goods, the importers and their clearing agents themselves have cleared their consignments after making ,payment of full duties and taxes without availing the benefit of the S.R.Os. Mentioned hereinabove. It may be further observed that all the details of goods imparted and their respective PCT headings including the good under dispute are available on the website and there is hardly any scope left for an importer to mis-declare the particulars of the goods on goods declaration. The applicants were confronted through show cause notice that the goods declaration in questions were in 360 bales. [Bales are used for the packing of Ribbed Smoked Sheets (RSS), while latex is imported in drums or huge flexi bag], in 120 feet container which was done to hoodwink the customs authorities. However, no plausible explanation was offered by the applicants in this regard. Under the circumstances and in view of hereinabove facts, we are of the view that the concurrent finding of all the forums below in this regard is based on proper appreciation of facts and correct application of law. Hence the respondents have rightly invoked the provision of section 32 of the Customs Act, within the prescribed period of limitation. 13. Reference made to the provision of section 32-A of the Customs Act, by the counsel for the applicants, is also misconceived as no such ground was raised before the forums below including tribunal nor there is any…
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