Full Judgment Text & Judicial Ruling

2018 P T D (Trib.) 1947 [Customs Appellate Tribunal] Before Muhammad Nadeem Qureshi, Member (Judicial-I) and Muhammad Nazim Saleem, Member (Technical-II) Messrs NICE TRADERS, GUJRANWALA Versus The DIRECTOR GENERAL, DIRECTORATE GENERAL OF VALUATION, CUSTOMS HOUSE, KARACHI Customs Appeal No.K-25 of 2017, decided on 21st August, 2017. Customs Act (IV of 1969)--- ----Ss. 25, 25-A & 25-D---Import of goods---Customs value of goods---Determination---Declared value of imported goods was accepted by the Clearance Collectorate---Directorate General of Valuation, issued Valuation Ruling through which value of imported goods was determined under heading of "other origin", and no notice of hearing was served upon the importer---Importer filed revision under provisions of S.25-D of the Customs Act, 1969, which was rejected---Vires of said rejection order was challenged before the Customs Appellate Tribunal which declared the impugned Ruling and revision order as of no legal effect to the extent of the importer; with direction to accept the declared value of the importer being fair---Said order was served on the authorities, but on the very date when the order was served, authorities with mala fide intention and to thwart the compliance of the order of the Tribunal, issued fresh ruling, through which value of goods of foreign origin was again determined at US $ 1.35/Kg, without any basis or evidence in support of the same---Importer again filed revision application before Director General Valuation, who rejected the same---Validity---Director, General of Valuation was only empowered to determine value for the levy of customs duty under the provisions of S.25-A of the Customs Act, 1969 but valuation ruling was issued through which value for levy of sales and income tax at import stage was also determined in the absence of any lawful authority---Competent authority empowered to determine the value for levy of sales tax on imported goods was "Officer of Inland Revenue" under the respective provisions of Sales Tax Act, 1990 and Income Tax Ordinance, 2001---While issuing Valuation ruling, it was mandated upon the Director General of valuation to state prominently in the ruling that value so fixed was only for the levy of customs duty not for sales tax and income tax at import stage---By laying hand on the domain of the officer of 'Inland Revenue' the Director General of Valuation had usurped the power not vested to it, rendering the determination of value through the impugned valuation ruling without power/jurisdiction---Director General valuation was not empowered to fix/determine the value of imported goods through valuation ruling in exercise of power vested under S.25-A of the Customs Act, 1969; Federal Board of Revenue was to issue notification in that respect---Assumption of jurisdiction, was of great importance and power had to be exercised within allotted sphere; acting contrary to the said principle was incurable, rather fatal for the case---Director General Valuation had erred in law and impugned order-in-revision did not appropriately reflected on the submissions and argument of the importer, nor did it illuminate as to why the significant case-law presented by the importer were considered irrelevant---Valuation Ruling issued under S.25-A of the Customs Act, 1969 only would apply for a certain period---If some method other than specified in S.25 of the Customs Act, 1969, was complied, that would be ultra vires the powers conferred under S.25-A of the Customs Act, 1969---Order-in-revision was set aside and Valuation Ruling by the Director General and Director Valuation, did not have any adherence with the statutory requirements---Valuation Ruling was declared to be without lawful authority, void and infested with patent illegally and was set aside. [Case law referred]. Nadeem Mirza for Appellant. Safdar, P.A. for Respondents. Date of hearing: 20th June, 2017. JUDGMENT MUHAMMAD NADEEM QURESHI, (MEMBER JUDICIAL-I).--By this order, we dispose of Customs Appeal No. K-25/2017 filed by the appellant against Order-in-Revision No. 270/2016 dated 13.12.2016 passed by Director General, Directorate General of Valuation (here-in-after to be referred as respondent No. 2), rejecting the revision application, while maintaining Valuation Ruling No. 897/2016 dated 04.08.2016 issued by Director, Directorate General of Valuation, (here-in-after to be referred as respondent No.1) through which value of Korean origin Non Dairy Topping Cream was determined vide serial No. 2 with the caption of "all other origin" in addition to origins of USA/EU, Malaysia and Vietnam. 2. Brief facts of the case are that Messrs Nice Traders, Gujranwala are commercial importers and stockiest and wholesellers of Non Dairy topping Cream. They imported the said products mostly from Korea and upon filing of Goods Declaration, their declared value was accepted by the Clearance Collectorate due to the fact that they are the only importer of the said product from Korea. On 22.01.2016, Respondent No. 1 issued Valuation Ruling No. 801/2016 through which he determined the value of Korean Origin Non dairy topping Cream @ US$. 1.50/Kg under the heading of "other origin" behind the back of the Appellant because the dispute was between the importers of non dairy topping cream of Vietnam origin and there was no dispute in regards to Korean origin. Resultant no notice of hearing was served upon him by Respondent no. 1 in regards to holding of meeting in which he determined the value. Being aggrieved, they filed Revision Application No. 388/2016 dated 09.02.2016 before the Respondent No. 2 under the provision of Section 25D of the Customs Act, 1969. The respondent No. 2 rejected that through a consolidated order, wherein, he applied the order of M/s. Pacific Distributor, Karachi, mutatis mutandis. The vires of that was challenged before the Appellate Tribunal. Which vide order dated 23.07.2016 declared the ruling and the revision order as of no legal effect to the extent of appellant with the direction to accept the declared value of the appellant being fair and falls within the meaning of Section 25(1) of the Customs Act, 1969 without any exception. The said order was served on respondents in the morning of 04.08.2016, on which date with mala fide intention and to thwart the compliance of order of the Tribunal, issued fresh ruling dated 04.08.2016 in the evening through which value of appellant goods of Korean origin was again determined @ US$. 1.35/kg without any basis and evidence in support of the same. 3. Being aggrieved appellant filed revision application before Director General Valuation, who rejected the same vide Order-in-Revision No.270/2016 dated 13.12.2016. Operative para of the impugned Order is relevant hence reproduced as under:-- "In view of the above, I have inferred that customs values have been determined after checking international website prices, market survey, etc. The customs values have been determined without pre-judiciously on genuine grounds after providing opportunity for justification but the petitioner could not provide any substantive documents in favour of their claim. The Valuation Ruling 897/2016 dated 04.08.2016 is, therefore, upheld and revision petition is rejected." 4. Being aggrieved and dissatisfied with the Order-in-Revision No.270/2016 dated 13.12.2016, the appellant filed the instant appeal before this Tribunal on the grounds mentioned in the Memo. of Appeal. 5. On the date of hearing Mr. Nadeem Ahmed Mirza, Consultant appeared on behalf of the appellant and reiterated the contents of the appeal and further contended that, prior to dilating upon the legality upon the valuation ruling it is of vital importance to abreast your authority that inspite of the fact that the respondent is only empowered to determine value for the levy of customs duty under the provision of Section 25A of the Customs Act, 1969. To the contrary, valuation rulings so issued by him are silent in this regard confirming that through the valuation rulings he also determine the value for levy of Sales and Income Tax at import stage in the absence of any lawful authority. The competent authority empowered to determine the value for levy of sales tax on imported goods is "Officer of Inland Revenue" under the respective provision of Sales Tax, 1990 and Income Tax Ordinance, 2001, resultant while issuing valuation ruling it is mandated upon him to state prominently in the ruling that the value so fixed is only for levy of customs duty not for sales tax and income tax at import stage under the provision of Section 25-A (1) of the Customs Act, 1969. The competent authority to determine the value for levy of Sales Tax and Income Tax is the officer of Inland Revenue under clause (d) of Section 2(46) of the Sales Tax Act, 1990. Whereas, Section 148 of the Income Tax Ordinance, 2001, the officer of Customs has to levy income tax on import stage on the value determined under Section 25 of the Customs Act, 1969. By laying hand on the domain of the officer of Inland Revenue the respondent usurped the power not vested with him, rendering the determination of value through the impugned valuation ruling without power/jurisdiction in regards to fixation of value for levy of Sales Tax and Income Tax at import stage, therefore is null, void and ab-initio, hence coram non judice as held in reported judgments Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd., v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP, PLD 2005 Supreme Court 842 Khyber Tractor (Pvt.) Ltd. v. FOP, PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2006 PTD 2237 Pak Suzuki Motors Company Ltd, Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832. He further contended that, if the Board is desirous of determining the value for levy of sales tax on the goods for collection under section 6 of the Sales Tax Act, 1990, it issues a notification in terms of 1st proviso of subsection (g) of Section 46 of the Sales Tax Act, 1990 which is reproduced for the ease of reference: "Provided that, where the Board deems it necessary, it may by notification in the Official Gazette fix the value of any imported goods or taxable supplies or class of supplies and for that purpose fix different values for different classes or description of such type of imported goods or supplies." The determination of value for collection of Income Tax under the provision of Section 148 Income Tax Ordinance, 2001 on the imported goods have to be determined as per the expression of Section 25 of the Customs Act, 1969 in terms of subsection (6) of Section 148 of the Income Tax Ordinance, 2001 by the Authorities expressed in subsection (9) ibid., which are Collector of Customs, Additional Collector of Customs, Deputy Collector of Customs, Assistant Collector of Customs, or an Officer of Customs appointed under section 3 ibid. The respondent is not empowered to fix/determine the value of imported goods through valuation ruling in exercise of power vested under section 25-A(1) of the Customs Act, 1969. It is for the Board to issue a notification. Similarly, determination of value for levy/collection of Income Tax at import stage, the Respondent is also not empowered as evident from the expression of subsection (9) of Section 148 of the Income Tax Ordinance, 2001, rendering the determination of value for levy of Sales Tax and Income Tax under the provision of Section 25A(1) of the Customs Act, 1969 without power/jurisdiction, rendering, the determination of value for sales tax and income tax negated as the same is being in derogation of 1st proviso of subsection (g) of Section 46 of the Sales Tax Act, 1990 and sub-section (9) of Section 148 of the Income Tax Ordinance, 2001. Hence, Valuation Ruling No.897/2016 dated 04.08.2016 is void ab-initio and as such coram non judice as held in reported judgments Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184), Omer and Company v. Controller of Customs, (Valuation): (1992 ALD 449 (1) Karachi AAA Steel Mills Ltd. v. Collector of Sales Tax and Central Excise Collectorate of Sales Tax (2004 PTD 624), PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP, PLD 2005 Supreme Court 842 Khyber Tractor (Pvt.) Ltd., v. FOP, PLD 1976 Supreme Court 514 Ali Muhammad v. Hussain Buksh and others and PLD 2001 Supreme Court 514 Land Acquisition Collector, Noshehra and others v. Sarfraz Khan and others, 2006 PTD 2237 Pak Suzuki Motors Company Ltd., Karachi v. Collector of Customs, Karachi, 2009 PTD (Trib.) 1996 and 2010 PTD (Trib.) 832. The assuming of jurisdiction is of great importance and power has to be exercised within the allotted sphere, acting contrary to that is incurable rather fatal for the health of the case and this has been countless time held by the Hon'ble Supreme Court of Pakistan that in case of assuming wrong jurisdiction, the structure built thereon ought to crumble down, reference is placed on the reported judgment 2001 SCMR 1822 Ali Muhammad v. Chief Settlement Commissioner, wherein the Hon'ble Chief Justice of Pakistan Mr. Iftikhar Muhammad Choudhry presiding a bench in the capacity of Judge of Supreme Court held that: "whenever order are passed by an officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercise in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice." Their lordship also held in reported judgment PLD 2004 Supreme Court 600 All Pakistan Newspaper Society and others v. FOP and others that "determination of jurisdiction by Court seized with the matters is one of the important element in administration of justice as if justice has been provided basing upon coram non judice order then same would have no legal sanction behind." And in PLD 2005 Supreme Court 842 Khyber Tractor (Pvt.) Ltd. v. Pakistan Through Ministry of Finance, Revenue and Economic Affairs that "question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum having no jurisdiction, even if it is found to be correct on merit is not sustainable. Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi judicial functionary to exercise its power/authority and no sooner the question of jurisdiction is determined in negative the whole edifice built on such defective proceeding, is bound to crumble down." The valuation ruling issued by respondent is for pleasing and benefiting the manufacturer namely Messrs Venus Pakistan (Pvt.) Ltd., Karachi. Which is not permitted being in derogation of Article VII to the WTO Valuation Agreement, enunciated with clarity that, the value of the national produced goods has no influence on the imported goods and the value of the imported goods has to be determined on the basis of value of the imported goods only. In nullity to the clear expression of Article VII the respondent invited manufacturer of the non dairy topping cream for determine of value while ignoring the fact that they are non entity in this entire affair in terms of Section 25A of the Customs Act, 1969 and have no locus standi rendering the valuation ruling and revision order as of no legal effect / jurisdiction hence, void and ab-initio. For better understanding, re-verbatim of Article VII is reproduced: "Article VII of the General Agreement on Tariff and Trade laid down the general principles for an international system of valuation. It stipulated that the value for customs purpose of the imported merchandise should be based on actual value of the imported merchandise on which duty is assessed, or of like merchandise, and should not be based on the values of merchandise of national origin or arbitrary or fictitious value. Although Article VII also contains a definition of "actual value, it still permitted the use of widely differing methods of valuing goods. In addition, 'grandfather clauses' permitted continuation of old standard which did not even meet the very general new standard." The said proposition of law is to be adhered and for that reason the Hon'ble Tribunal in its order dated 23.07.2016 held that: We are also appalled from the fact that how under which provision of law the respondents entertained the complaint of Messrs Venus Pakistan (Pvt) Ltd., Karachi, who is a manufacturer and on whose request/complaint, determination of value cannot be made and that also in accordance to their will and desire. The entire exercise conducted by the respondents are without lawful authority being in derogation of the provision of Section 25A of the Customs Act, 1969, which with clarity express that the Collector or Director may determine the value of the goods or the class of goods on his own motion, upon receipt of reference by him from any person or an Officer of Customs, which means an importer or the Officer of Customs and none else. Manufacturer of non dairy topping cream does not falls within the ambit of any person through any stretch of imagination, he is a non entity and has no locus standi to approach the respondent for determination of value for creating his monopoly, which is not permitted under the respective Article of Constitution of Pakistan. This fact alone renders the valuation ruling and the order-in-revision as of no legal effect and in derogation of Section 25A of the Customs Act, 1969. He further contended that, the provision of Section 25 of the Customs Act, 1969 are to be followed in sequential manner baring certain exceptional cases where massive group under invoices is rampant. However, resort to subsequent method is not permissible without exhausting the sequence indicated in Section 25 as it would annihilate and terminate the spirit and essence of the transaction value which in the first instance has to be established as colorable and tainted. Section 25(13)(a) does not give unbridled and un fettered authority to respondent to play havoc with the provision of Section 25 ibid., thereby making them in-effective and redundant. Discretion has to be exercised within limits based on reason, rationale and fair play. It is specifically provided by the legislature in subsection (10) of Section 25 that subsections (1), (5), (6), (7), (8) and (9) define how the customs value of the imported goods is to be determined by the customs. The method of custom valuation are normally required to be applied in a sequential order except reversal of the order of subsections (7) (8) at the importers, request, if so agreed by the Collector of Customs as held in judgments 2008 PTD 1494 Messrs Toyo International Motorcycle v. Federation of Pakistan and 3 others, C.P. No. 2673 of 2009 of Sadia Traders v. FOP the Hon'ble High Court of Sindh, W.P. No. 756/2010 Messrs Faco Trading and 45 others v. Member Customs, FBR and 2014 PTD 176 Goodwill Trader, Karachi v. FOP etc. The observation made by Director Valuation in para 4 of the Ruling that, provision of Section 25(1) found inapt in the light of wide variety of invoices, whose veracity cannot be fully ascertained, the said formed opinion may be correct to the extent of import from USA, Europe, Malaysia or Vietnam but not to the extent of product of applicant of Korean origin, which is bracketed with the determined value of other origin not included in the ruling and for that heading "all other origin" is created while ignoring the fact that the valuation ruling should be a "country specific" and it is essential by virtue of the fact that certain vital elements plays an important part in determination of value e.g. "quality of the goods, quantum of the goods and amount of freight etc.". The ruling issued without mention of country is arbitrary/ unilateral and in derogation of Section 25A of the Customs Act, 1969. Hence, void and ab-initio. For determination of value of the applicant goods, it was mandated upon the respondents to adhere the expression of Section 25(1) and in Rule 113 of Chapter IX of the Custom Rules, 2001 in letter and spirit i.e. proving the letters of credit established by the appellant as fake, tainted as expressed in Rule 109(2) of Chapter IX of Customs Rules 2001, which he failed to prove as not a single word in this regard has been uttered in the ruling. Presumption is that he has nothing to say in regards to veracity of the letters of credit. Resultant, he has to remain within the ambit of section 25(1) of the Customs Act, 1969. The stance of the applicant also stood validated from the Goods Declaration of the Korean Customs annexed as exhibit "S" at page 78 of the Revision Application No. 801/2016 and Exhibit "T" at page 91 of Customs Appeal No. K-1331/ 2016. This fact nullifies the opinion of respondents and provides no cause or reason or rationale to determine the value of the appellant goods through the impugned valuation ruling, sans acceptance of his declared value. Rendering the impugned valuation ruling as of no legal effect and ab-initio void to the extent of appellant as was the earlier Ruling No. 801/2016 dated 22.01.2016, held by the Customs Appellate Tribunal in its Judgement dated 23.07.2016. The same circumstances prevail even to-date as were on 22.01.2016, no drastic change in any context has been apparent as nothing has been inscribed by the respondent in the valuation ruling. Resultant, no cause or reason was available for the respondent No. 1 to again re-determine the value of the appellant goods through the impugned valuation ruling with the exception of mala fide intention, determination of value on the basis of one's bias, illegal and unfounded opinion is not permitted, such determination of value is deems to be arbitrary/unilateral not permitted under Rule 110 Chapter IX of Customs Rules, 2001. The valuation ruling dated 04.08.2016 upon receipt of order of the Tribunal dated 23.07.2016 in the first half of 04.08.2016 speaks volume about the mindset of the Officials of the Directorate General Valuation and the Director Valuation, and pathetic state of affairs of the Directorate in preparation/issuance of valuation ruling and flouting the orders of the Superior Judicial Fora's to which they are not empowered. The observation made by the Division Bench of the Tribunal in order dated 23.07.2016 left no room for the respondent to issue valuation ruling of applicant Korean origin goods, declared value of which is transaction value within the meaning of Section 25(1) of the Customs Act, 1969 and in Rule 113 of Chapter IX of the Custom Rules, 2001, unless contrary is proved by the respondent through incriminating tangible evidence outlined by the Judicial Fora in reported judgments 1986 MLD 790 Karachi, PLD 1996 Karachi 68 , 2006 PTD 909, 2002 PTD 2957, 2007 SCMR 1357 = 2007 PTD 1858, 2008 SCMR 438, 1992 SCMR 1083, 2008 PTD 1250 and 2008 SCMR 438. The order passed by the respondent No. 2 is bad in law and based on a callous attitude and confirms that it has not been passed by an independent revisional authority instead in the capacity of Collector of Clearance Collectorate and as such fails the test of judicial scrutiny. These types of orders are deemed to be not passed independently and with the application of mind and provision of the Act, rendering it non speaking order and least conforms to the mandatory requirement of section 24-A of the General Clauses Act, 1897 validated from the fact that no rebuttal on the grounds of revision applications and order of the Tribunal nor any reasoning/rationale has been adduced for ignoring those. Rendering the impugned order not being passed on objective consideration stand validated from its contents. Such type of orders is deemed to be always treated as illegal, void, arbitrary and a result of misuse of authority vested in a public functionary. No room is available for such illegal, void and arbitrarily orders in any system of law. If any authority Court or…

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