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Petitioner: Messrs ZAINAB ENTERPRISES, KARACHI and another VS Respondent: The DEPUTY DIRECTOR, DIRECTORATE GENERAL OF VALUATION, KARACHI and 2 others
Court Name: Customs Appellate Tribunal Judge(s): Jehanzaib Wahlah Title:Messrs ZAINAB ENTERPRISES, KARACHI and another vs The DEPUTY DIRECTOR,
DIRECTORATE GENERAL OF VALUATION, KARACHI and 2 others Case No.: Custom Appeals Nos. K-37 and K-38 of 2018 Date of Judgment:2018-12-22 Reported As: 2019 PCTLR 1257, 2019 PTD (Trib.) 1519 Result: Appeal allowed Judgment ORDER JEHANZAIB WAHLAH (MEMBER JUDICIAL-III).--- Through this common order I intend to dispose off Appeals Nos, K-37/2018 and K-38/2018 directed against Order-in-Appeals Nos, 775 and 776/2017 dated 28.11.2017 passed by respondent No, 3 maintaining the assessment orders dated 31.03.2017 passed by respondent No, 2. 2. Since, these appeals are based on similar facts and grounds, it is needless to reproduced facts of each case separately , facts of Appeal No, K-37 /2018 are taken into consideration, which are the appellant is a importer/stockiest and whole seller of stationery items e.g. Staplers all types, punch, staple remover and binder clip of China origin, which were assessed with the application of identical/ similar goods value as defined in section 25(5) & (6) of the Customs Act, 1969 (Act) and subsequently upon issuance of valuation ruling (VR) No, 585/2013 dated 30.09.2013, with the application of that. On 09.06.2016 the Director , Director ate General of Valuation despite not warranted in the light of the Internat ional Market trend, re-determined value of the said goods vide VR No, 868/2016 dated 09.06.2016 through which he enhanced the value considerably on higher side while ignoring the factual and legal aspect. Being aggrieved appellant filed revision application under the provision of Section 25D of the Act before Director General, Director ate General of Valuation. Who rejected the same vide Order-in-Revision No, 211/2016 dated 27.07.2016, despite of the fact that he re-determined the values of certain stationery items in the order . The appellant being aggrieved from the Revision Order and VR challenged their vires before the Customs Appellate Tribunal under the provision of Section 194A(1) of the Act through Appeal No, K-1600/2016. A consignment of the appellant arrived at terminal during the pendency of appeal corresponding to Goods Declaration (GD) No, KAPW -HC-25188 dated 08.08.2016 for which he filed an application for interim relief, the Tribunal vide its order dated 24.08.2016 ordered "the Collector of Customs, MCC of Appraisement-W est to release the consignment upon payment of duty and taxes in accordance with the declared value and upon deposit of pay
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order for the differential between the declared and assessed value." The encashment of pay order submitted as security and passing of final assessment order under the provision of Section 80 of the Act was subject to passing of final order by the Customs Appellate Tribunal. The Tribunal decided the appeal vide order dated 12.01.2017, through which it set-aside the VR and Order -in-Revision being without lawful authority and jurisdiction, void and ab- initio while holding in the operative para that "we led to conclude that the impugned valuation ruling No, 868/2016 dated 09.06.2016 and Order -in-Revision No, 211/ 2016 dated 27.07.2016 passe d by the Director and Director General, Customs Valuation, which does not have any adherence to the statutory requirements, beside being derogatory to specific provision of Sections 25-A and 25-D of the Customs Act, 1969." Upon receipt of the order , the consultant of the appellant forwarded letter to respondent No,2 to return the pay order submitted as security deposit in compliance of the order of the Tribunal. The respondent No, 2 instead of returning the securities after cancellation as mandated under law opted to pass assessment order under section 80 of the Act dated 31.03.2017 through which he finalized the assessment while construing the case as of provisional release falling under the provision of Section 81 ibid., while adducing remarks in the assessment note reading as: "Assessment finalized in the light of DC Valuation remarks as follows " The case has been examined in the light of reference made by lie Collectorate data available on record. For the determination of customs value, the method given in Section 25 of the Customs Act, 1969 were followed. Transaction Value method under Subsection (1) of Section 25 of the Act, 1969 was found inapplicable because required information under the law was not available. Identical and similar goods value method provided in subsections (5) and (6) of Section 25 of the Customs Act, 1969 provided some reference value but due to vide variation the same could not be relied upon. In the sequential order this office then conducted a market inquiry in terms of Subsection (7) of Section 25 of the Customs Act, 1969. Thus, the customs values are determined as under:- S. No, G.D. No, and Date Description of goods China C&F Custom value 1.KAPWHC-25188-08-08-16 Stationery/file clips China US$. 2.35/Kg. 2. KAPW - HC-49649-09-09- 16 Stationery /File Clips China US$. 2.35/kg Collectorate may like to finalized the assessment accordingly ." 3. The Appellant challenged the vires of the impugned order-in-original before the Respondent No, 3 vide Appeal No, Cus/1663/ 2017/A-W est dated 28.04.2017, which was dismissed vide order dated 28.11.2017 on the strength of the imported grounds having no nexus whatsoever with the grounds taken by the appellant in the memo of appeal. Para 4 is relevant which read as follows: "I have examined the case record. The appellants imported stationery clips from China and declared transaction value @ US$. 0.70/kg. At the time of filing of Goods Declaration, Valuation Ruling for stationery item was infield but to get the goods cleared without application of said Ruling, the applicant filed an application for interim relief before the Customs Appellate Tribunal. The Tribunal directed the Clearance Collectorate to release the consignment upon payment of duty and taxes in accordance with the declared value and upon deposit of pay order for difference between declared and assessed value with the concerned Collectorate . Later on the Tribunal set aside both the Valuation Ruling No, 868/2016 and Order -in-Revision 211/2016. In this back drop, the appellant insist that his declared value be considered as transaction value for the purpose of assessment. But, there is no documentary evidence of transaction at this price. The goods are statedly imported without letter of credit. The appellant have not disclosed payment methodology for the purchase. In the absence of Valuation Ruling or proof of transaction value by the appellants, the respondents were justified in rejecting the declared transaction value and determined Customs value in one or sequential method. The respondent have placed data pertaining to import of identical goods, on record, which reflects excepting transaction value at the rate of US$. 2.35/Kg. I therefore, hold that there is no infirmity in the assessment order . The appeal being without merit failed." 4. The appellant filed the instant appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing 'argued the case strictly in accordance with those and placed host of judgments in support of his stance . No cross objection under Subsection (4) of Section 194A of the Act has been filed within the stipulated period of 30 days by the respondent No, 1, nor attended the hearing even once despite multiple notices, resultant, lost his right in defending the appeal by not submitting counter affidavit, which is tantamount to admission and deposition made by and on behalf of the appellant in the memo of appeal and affidavit are therefore, deems to be true and correct and no controversy is left behind in regards to the fact of the case. Non submission of counter
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affidavit whether by will or default forfeit the respondent No, 1 right to deny assertion made in the affidavit. This proposition of law stood validated from the following judgments of the Superior Judicial Fora reported as (1974) 94 ITR I, PLJ 1979(sic), 71 & 72, 1986 CLC 745 Kar. (1984) 146 ITR 140, 1986 PTD (Trib.) 119, 1986 CLC 1119, 1986 CLC 1408 Kar. 1991 MLD 1243 , PLD 1992 SC 317, 1993 SCMR 662, PLD 1996 Karachi 68 and PLJ 197(sic) Quetta 66, 2003 PTD 2118. Likewise respondent No, 2 also failed to submit counter objection as per the expression of the aforesaid provision of the Act within time, instead submitted comments, which are not in any manner qualify memo of cross objection, deemed to be termed as cross appeal filed under Subsection (3) by the department as expressed in aforesaid Section. Therefore, these are to be considered merely as opinion, having no binding force, nevertheless, placed on record of the case. 5. Rival parties heard and case record perused, in addition with the relied upon citations. I framed following issues for decision. Whether the case of appellants was of provisional release as per enunciation of provision of Section 81 and as to whether respondent No, 2 was empowere d to exercise the powers available in the aforesaid provision of the Act in the presence of availability of VR No, 868/2016 dated 19.06.2016, Order-in-Revision No, 211/2016 and Interim Order of the Tribunal dated 24.08.2016 ? Whether respondent No, 1 was empowered to issue valuation advise in terms of clause (b) of Serial No, 3 of SRO 494(1)/2007 dated 09.06.2007 in the presence of infield VR No, 868/2016 dated 19.06.2016, Order-in-Revision No, 211/2016 and Interim Order of the Tribunal dated 24.08.2016? Whether respondent No, 2 while terming the cases of the appellants as of Section 81 of the Act passed final assessment order under the provision of sections 80 and 81(5) of the Act within the stipulated period given in Subsection (2) and its proviso of aforesaid Sections? Whether order passed by respondent No, 3 is within time and as to whether Boar d extended the time for passing order vide C.No, 1(03) TO-II/2017 dated 14.11.2017 was prior to lapse of initial currency period given in Subsection (3) of Section 193A of the Act and was in accordance with the essence and spirit of the law laid down by the Superior Judicial Fora? Whether the order passed by respondent No, 3 is in accordance with the facts and grounds of the cases and as to whether his order could be termed under any standard/definition a valid/legal order as per the contemplation of Section 24-A of General Clauses Act, 1897? 6. That as regard to issue No, (i). Since, in the instant order deliberation on the provision of Section 81 and Rules 439 (a) and 440 of the Act/Rules is to be made, it is therefore appropriate to reproduce verbatim of those:-- 81. Provisional determination of liability .---(l) Where it is not possible for an officer of Customs during the checking of the goods declaration to satisfy himself of the correctness of the asses sment of the goods made under section 79, for reasons that the goods require chemical or other test or a further inquiry , an officer, not below the rank of Assistant Collector of Customs, may order that the duty, taxes and other charges payable on such goods, be determined provisionally: Provided that the importer , save in the case of goods entered for warehousing, pays such additional amount: on the basis of provisional assessment or furnishes bank guarantee [or pay order] or a post-dated cheque of a scheduled bank along with an indemnity bond for the payment thereof as the said officer deems sufficient to meet the likely differential between the final determination of duty over the amount determined provisionally: Provided further that there shall be no provisional assessment under this section if no differential amount of duty and tax is paid or secured against bank guarantee [or pay order] or post-dated cheque. [(2) Where any goods are allowed to be cleared or delivered on the basis of such provisional determination, the amount of duty, taxes and charges correctly payable on those goods shall be determined within six months of the date of provisional determination: Pro Tided that the Collector of Customs or, as the case may be, Director of Valuation, may in circumstances of exceptional nature and after recording such circumstances, extend the period for final determination which shall in no case exceed ninety days.
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Provided further that any period, during which the proceedings are adjourned on account of a stay order or for want of clarification from the Board or the time taken through adjournment by the importer , shall be excluded for the computation of aforesaid periods (3) On completion of final determination, the amount already paid or guaranteed shall be adjusted against the amount payable on the basis of final determination, and the difference between the two amounts shall be paid forthwith to or by the importer , as the case may be. (4) If the final determination is not made with the period specified in subsection (2), the provisional determination shall, in the absence of any new evidence, be deemed to be the final determination. (5) On completion of final determination under subsection (3) or (4), the appropriate officer shall issue an order for adjustment, refund or recovery of amount determined, as the case may be. Explanation .---Provisional assessment means the amount of duties and taxes paid or secured against bank guarantee or post-dated cheques. 439(a) Valuation:---The clearance of goods by the Clearance Collectorate shall be restricted to transaction value method, identical goods method and similar goods method under Section 25 of the Act, and where detail scrutiny is required and subsequent valuation method are to be applied, the case shall be forwarded to Valuation Department online while clearing the goods provisionally . 440 Finalization of Provisional Assessment:---The case of valuation and classifica tion forwarded to the Valuation Department and Classification Centre under Rule 439 shall respectively being finalized by them using their respective unique identifier and the cases of exemption and lab test shall be finalized by the Collectorate clearing the goods on the basis of assessment made by it where-after the securities furnished by the importer shall be released or encashed, as the case may be by such Collectorates. 7. The power under the provision of Secti on 81 and Rule 439(a) of the Act/Rules could be exercised by respondent No, 2, when he or his subordinate assess the imported goods under the provision of Section 25(1), (5) & (6) of the Act, and the value so declared by the importer found to be not correct/fair despite discharging burden of proof laid upon him under Sub-Rule (1) of Rule 109 of the Rules and respondent No, 2 or his subordinates desired to determine fair value either by themselves or referring that to the Directorate General of Valuation, to proceed with the said exercise, reasoning for the said effect has to be communicated in writing to the importer as per the expression of Sub-Rule (3) of Rule 109 of the Rules. The respondent No, 2 is only even then empowered to exercise powers of provisional release of the consignment under the provision of Subsection (1) of Section 81 and Rule 439(a) of the Act/Rules after securing pay order/bank guarantee equivalent to the differential amount between the declared and ascertained value as contemplated in 2nd proviso of the aforesaid Section. In the presence of VR of the "goods" or "class of goods " issued by Director , Directorate Genera l of Valuation under the provision of Section 25A with the application of different subsection of Section 25 of the Act in sequential manner . Respondent No, 2 has no power to exercise the powers of provisional release available in Subsection (1) of Section 81 and Rule 439(a) of the Act/Rules . In the instant case VR No, 868/2016 dated 09.06.2016 and Order-in-Revision No, 211/2016 dated 27.07.2016 were infield. By virtue of the said fact the respondent. No, 2 refused to exercise powers available under the provision of Section 81 and Rule 439(a) of the Act/Rules, despi te of the fact that the vires of the VR/Order-in-Revision were challenged by the appellant through appeal under the provision of clause (e) of Subsection (1) of Section 194 of the Act before the Customs Appellate Tribunal vide No, K-160012016. Resultant, appellant filed application for interim injunction before the Appellate Tribunal for release of consignments imported vide GD No, KAPW -HC-25188 dated 08.08.2016, which was allowed by the Tribunal vide dated 24.08.2016 ordering Collector of Customs, MCC of Appraisement-W est, "to allow clearance/release of the cons ignment corresponding to the aforesaid GD upon payment of duty and taxes in accordance with the declared value and upon deposit of pay order for the differential between the declared and assessed value." Hence, the consignment of the appellan4 were released on the order of the Tribunal not by respondent No, 2 in exercise of the powers vested upon him under the provision of Subsection (1) of Section 81 of the Act, nor direction to the said effect was given by the Tribunal in its order dated 24.08.2016 B for determination of value to the respondent No, 2 or by the respondent No, 1. Construing the case of appellant as of Section 81 of the Act/order of the Tribunal is manifestly
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erroneous being based on misconception/ inapt interpretation of the aforesaid provision of the Act. The issue No, (i) is answered in negative. 8. That as regard to issue No, (ii). The respondent No, 1 is only empowered to issue advise of the imported goods against any GD in terms of clause (b) of Serial No, 3 of SRO 494(I)/2007 dated 09.06.2007 reading as "to issue advises and VRs on the cases referred by the field formations including the determination of values involving provisional assessment under the Section 81 of the Customs Act, 1969." As evident from the supplied emphasis to the part of clause (b), the respondent No, 2 is empowered to exercise powers for determination of value of any consignment for issuance of advise, corresponding to the goods or class of the goods imported, only when respondent No, 2 allow the release of the consignment under the provision of Section 81 of the Act and refer the GD online to respondent No, 1. Asper the expression of Rule 439(a) of the Rules the respondent No, 1 is however , barred to determine value of any goods or class of goods and to issue advises, where a valuation ruling of the goods in question are infield, which have been issued by the Director , Directorate General of Valuation under the provision of Section 25A, with the application of different Subsection of Section 25 of the Act in sequential manner . In the case under consideration VR No, 868/2016 dated 09.06.2016 and Order-in-Revision No, 211/2016 dated 27.07.2016 passed by Director General, Directorate General of Valuation on the Revision Application filed by the appellants under the provision of Sectio n 25D of the Act and interim order dated 24.08.2016 having no such direction/order were infield. Resultant, respondent No, 1 was not empowered under any pretext to determine the value of the goods or class of the goods, values of which have been determin ed by the Director , Directorate General of Valuation through VR and Director General, Directorate General of Valuation maintained that by rejecting the revision application through Order-in-Revision as it tantamounts to overlapping VR/Order-in-Revision, issued/passed by his superior , otherwise if done renders the same without lawful authority/jurisdiction and as such ab-initio and void. In the case under cons ideration the release of consignment of the appellant was allowed by the Tribunal through interim order dated 24.08.2016, not by respondent No, 2 in exercise of the powers vested upon him under the provision of Section 81 of the Act. No occasion was available either with the respondent No, 2 to consider the case in question as of Section 81 or with the respondent No, 1 to determine the value of the imported goods of the appellant under clause (b) of Serial No, 3 of SRO 494(I)/2007 dated 09.06.2007. The issue of value of the imported goods of the appellant ought had to be decked by the Appellate Tribunal at the time of authoring judgment in the filed appeal bearing No, K-1600/2016 filed against VR No, 868/2016 dated 09.06.2016 and Order- in-Revision No, 211/2016 dated 27.06.2016, which the Tribunal decided vide dated 12.01.2017 through which VR and Order-in-Revision were set aside in totality while holding that "we led to conclude that the impugned valuation ruling No,868/2016 dated 09.06.2016 and Order -in-Revision No, 211/2016 dated 27.07.2016 passed by the Director and Director General, Customs Valuation, which does not have any adherence to the statutory requirements, beside being derogatory to specific provision of Sections 25-A and 25-D of the Customs Act, 1969." In the light of apparent commission of blatant illegalities and that also in the absence of availability of power/jurisdiction. And for that reason the respondent No, 1 either himself nor his superior least bothered to submit cross objections under Subsection (4) of Section 194 of the Act or became a party during the course of proceeding of the instant case before the Tribunal despite multiple hearings. I am left with no other option to hold without hesitation that the respondent No, I was not empowered to determine the value of the goods of the appellant under any Subsection of Section 25 of the Act in exercise of the powers vested upon him through clause (b) of Serial No, 3 of SRO 494(1)/2007 dated 13.06.2007 . Rendering, the determination of value and issuance of advise without lawful authority/ jurisdiction being in derogation of VR No, 868/2016 dated 09,06.2016 Order-in-Revision No, 211/2016 dated 27.07.2016 and above all Order of the Tribunal dated 12.01.2017 in Appeal No, K-1600/2016. Hence, ab-initio, null and void and as such coram non judice. The issue No, (ii) is answered in negative. 9. That as regard to issue No, (iii). Upon bares reading of the Subsection (2) of Section 81 of the Act, it is abundantly clear that the commencement of period for determination of value starts from the date of determination of provisional assessment and the correct /fair value of the goods and final assessment order under the provision of Sections 25 and 80 and 81(5) and Rules 438 and 440 of the Act/Rules have to be made either by Officer of Customs or Directorate General of Valuation and respondent No, 2 within 06 months without any exception,
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however , if the determination of value /final assessment order cannot be made determined /passed within 06 months, the Collector or Director as the case may be can extend the period furthe r but not more than 90 days as expressed in 1st proviso of subsection (2) of Section 81 of the Act, subject to availability of "exceptional circumstances " and recording of those after serving a notice to the importer as per law laid down by the Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881 Khalid Mahmood v. Collector of Customs . In the case in hand provisional determination of value was made as per assessment note on 09.09.2016. Final assessment order under the provision of Sections 80 and 81(5) and Rules 438 and 440 of the Act/Rules, have to be passed by the respondent No, 2 on or before 28.03.2017. To the contrary , order was passed by respondent No, 2 on 31.03.2017 without any extension as evident from the adduced assessment note, which is completely silent in this regard. Hence the order passed by him is barred by time by 03 days. Rende ring it, without power/jurisdiction and not enforceable under law as held by the Superior Judicial Fora in reported judgments relied upon the appellant in ground No, (v) of the memo of appeal and the judgment of Hon'ble Supreme Court of Pakistan in CPLA No, 728/K of 20! titled as the Collector of Customs, PMBQ, Karachi v. M/s. International Industries Ltd, Karachi filed against the order of the Hon'ble High Court of Sindh in Special Customs Appeal No, 33/2010, wherein it has been held that "when no final assessment is made in terms of subsection (2) to Section 81 of the Customs Act, 1969 the declared value stood final". With this leave to appeal were refused and petition was dismissed vide order dated 08.08.201 1, reading as:- "2- As it appears from record, short controversy involved in the said petition was as regards the interpretation and applicability of subsection (4) to section 81 of Customs Act, 1969 which read as follows:- "81(4) if the final determination is not made with the period specified in subsection (2), the provisional determination shall, in the absence of any new evidence, be deemed to be the final determination." In this regard, learned Division Bench, while passing…
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