Full Judgment Text & Judicial Ruling

2024 P T D (Trib.) 133 [Customs Appellate Tribunal (Karachi Bench-I)] Before Mazhar Ali Ghallu, Member Judicial-II and Abdul Basit Chaudhry, Member Technical-I Messrs ESSA STEEL and another Versus The COLLECTOR OF CUSTOMS (ADJUDICATION-II), CUSTOM HOUSE, KARACHI and another Customs Appeal No.K-96 of 2022, decided on 25th May, 2023. (a) Customs Act (IV of 1969)--- ----Ss. 79, 80, 19, 32(1), 32(2), 32-A, 104 & 156(1), clauses (10-A), (14) & (14-A)---SRO 655(I)/2006 dated 05-06-2006---Mis-declaration---In-Bond Goods, description of---Fiscal fraud---Inadmissible exemption---Scope---Iron and Steel Sheets of assorted sizes were imported as an input raw material for manufacturing of "silencers" for motorcycles---Importer assailed order-in-original passed by Collector of Customs (Adjudication) following actions taken by Directorate General of Intelligence and Investigation-Customs ('Directorate')---Allegation against the appellant/importer was that sizes of the imported steel sheets coils mentioned in its Goods Declaration ('GD') did not match with the sizes allowed by the Engineering Development Board (' EDB ')to the importer as an input material---Submission of the reporting Directorate was that the importer had declared the raw material consumption of 7.99 kgs per unit whereas prevalent per unit consumption was 4.01 kgs---Validity---In the case of In-Bond GD, the goods are warehoused after checking and the goods are cleared after payment of duty / taxes, if any, through Ex-Bond GD being filed under section 104 of the Customs Act, 1969 ('the Act, 1969')---Particulars of an invoice, packing list, Bill of lading ('B/L') etc., are merged into GD and to check the "declaration" of an importer, the GD' s particulars are to be considered for the purpose of charging a person for mis-declaration within the meaning of S. 32 of the Act, 1969---Further, for charging a person for the violation of S.32-A of the Act, 1969, the Department has to prove the submission of some fake or manipulated or fabricated documents by the declared importer , which is missing in the present case, thus it is neither a case of " mis-declaration" nor a case of " fiscal fraud" within the meaning of Ss. 32 & 32-A of the Act, 1969 , rather, prima facie, it is just a case of S. 19 of the Act, 1969 which needs to be examined as per conditions of the SRO 655(I)/2006 dated 05-06-2006---Submission of the respondents impliedly confirms that, instead of sizes, the weight-wise consumption of the imported material / steel-sheets matters for determination of the lawful consumption for exemption ; thus, in case of any variation in sizes, the appellant / importer could not be charged for evasion of duties / taxes in availing inadmissible exemption---EDB had also pointed out the consumption of excessive material, not the sizes, and had asked the Department for recovery of duties / taxes, if any, on misuse of quota after chain audit---Respondent / Department had failed to establish its case and legality of its actions were without jurisdiction---Tribunal set aside the impugned order-in-original passed by the Collector of Customs (Adjudication)---Appeal filed by the taxpayer was allowed, in circumstances. (b) Customs Act (IV of 1969)--- ----Ss. 79, 80, 19, 32(1), 32(2), 32-A, 104 & 156(1), Cls (10-A), (14) & (14-A)---SRO 655(I)/2006 dated 05-06-2006---Mis-declaration---In-Bond Goods, description of---Fiscal fraud---In-admissible exemption---Scope---Importer-cum-manufacturer getting goods manufactured through another sub-manufacturer---Scope---Iron and Steel Sheets of assorted sizes were imported as an input raw material for manufacturing of "silencers" for motorcycles---Directorate, through contravention report, alleged that importer had shown some other unit as theirs because on their (Directorate) team's visit it was found that importer's unit did not exist, rather there was a small industrial unit (with a name other than name of unit given by the importer) employing 810 workers---Validity---Though there was discrepancy of the changed name, but no denial to the fact that the manufacturing facilities of the output goods were available, operational with 810 employees, on the given address of the unit---SRO 655(I)/2006 dated 05-06-2006 ('SRO 655(I)/2006') had allowed an importer-cum-manufacturer, like appellant, to get the goods manufactured through another manufacturer (sub-vendor)---Considering the spirit of availing exemption under the SRO 655(I), allegation against the appellant was immaterial, particularly against the imported raw material which had been consumed in manufacturing---Respondent / Department had failed to establish its case and legality of its actions were without jurisdiction---Tribunal set aside the impugned order-in-original passed by the Collector of Customs (Adjudication)---Appeal filed by the taxpayer was allowed, in circumstances. (c) Customs Act (IV of 1969)--- ----Ss. 79, 80, 19, 32(1), 32(2), 32-A, 104 & 156(1), Cls. (10-A), (14) & (14-A)---SRO 655(I)/2006 dated 05-06-2006---SRO 486(I)/2007 dated 09-06-2007---Mis-declaration---In-Bond Goods, description of---Fiscal fraud---In-admissible exemption---Scope---Issuance of "Flying Invoices" for sale of output goods, allegation of---Jurisdiction---Scope---Iron and Steel Sheets of assorted sizes were imported as an input raw material for manufacturing of "silencers" for motorcycles---Importer assailed order-in-original passed by Collector of Customs (Adjudication) following actions taken by Directorate General of Intelligence & Investigation-Customs ('Directorate')---Validity---Matter of issuance of "Flying Invoices" related to "supply" and for that I.R.S authorities had exclusive jurisdiction---Even otherwise, as per the conditions of the SRO 655(I)/2006 the complete round for availing exemption completes on communication to the concerned Collectorate of Customs (Imports), in writing , about the consumption of the input raw material in manufacturing of the specified output article, in term of condition (ix) of the SRO 655 (I)/2006 , which had been complied with by the appellant / tax-payer---According to the condition (x) of the SRO 655 (I)/2006, even if there was an information about evasion of duty / taxes through an in-admissible exemption in that case too , the matter was ought to be communicated to the Collector of Customs, having jurisdiction, who allowed input raw materials' release---Collector of Customs was to initiate proceedings for the recovery of duty / taxes, if any, due to non-consumption or mis-appropriation of the imported input goods by an importer---Even an "audit" or "investigation" could only be undertaken by the specific person or agency duly designated by the EDB and FBR---Respondents Directorate had failed to produce any " authorization" in terms of condition (x) of the SRO 655 (I)/2006, thus the actions of the respondents / Directorate were without jurisdiction---Considering Notification SRO 486(I)/2007 dated 09-06-2007 issued under S.3E of the Customs Act, 1969, the officers of Directorate General of Intelligence and Investigation-Customs had no jurisdiction to investigate the matters relating to S.19 of the Customs Act, 1969---Respondent / Department had failed to establish its case and legality of its actions were without jurisdiction---Tribunal set aside the impugned order-in-original passed by the Collector of Customs (Adjudication)---Appeal filed by the taxpayer was allowed, in circumstances. Saeed Shahzad for Appellants. Saddurddin, Assistant Manager, present for Engineering Development Board (EDB) and Umair Mustafa, A.O. for Respondent. Date of hearing: 19th April, 2023. JUDGMENT MAZHAR ALI GHALLU, MEMBER JUDICIAL-II.----By this judgment, we intend to dispose Custom Appeal No. K-96/2022 filed by the appellant against Order-in- Original No.849/2021-2022 dated 30.11.2021 passed by the Collector of Customs (Adjudication-II), Karachi. 2. Brief facts of the case as per contravention report, in pursuance of the above information, the documents relating to the consignments of steel sheet coils imported by M/s. Essa Steel (NTN # 3791808), Karachi under SRO 655(I)/2006 dated 22-06-2006 were retrieved from WeBOC system scrutiny of which transpired that M/s. Essa Steel (NTN # 3791808), Office No. 104, 1st Floor, Business and Finance Centre, I.I. Chundrigar Road, Karachi are involved in the evasion of Customs Duty and Taxes by mis-using SRO 655(I)/2006, dated 22.06.2006 by way of clearing steel sheets in coils on concessionary rate of Customs Duty i.e. @ 1% instead of Customs Duty @ 20%. It was observed that the description in in-bond GDs differs with the description as per invoice, packing list and bill of lading. Moreover, size of the steel sheet coils mentioned in invoice, packing list and bill of lading does not match with the size allowed by the Engineering Development Board (EDB). Whereas, grade / specification has not been mentioned in the GDs and packing list shows Goods Declarations-wise discrepancies which is the integral part of the show-cause notice /contravention report. The modus operandi adopted by M/s. Essa Steel (NTN # 3791808), Karachi was such that the imported goods were misdeclared to illegally avail the benefit of SRO 655(I)/2006 dated 22.06.2006, to get said goods cleared on reduced rate of duty and taxes thus causing loss to the national exchequer. 3. In view of above facts, it is established beyond any shadow of doubt that Essa Farooq of M/s. Essa Steel in connivance with other associates-in-crime have evaded customs duty and taxes amounting to Rs.23,847,607/- by mis-using and illegally claiming SRO 655(I)/2006 dated 22-06-2006 and have violated the provisions of violation of Sections 19, 32(1), 32(2) and 32(A) of the Customs Act, 1969, read with SRO 655(I)/2006 dated 22.06.2006, read with Sections 3, 6 and 7A of the Sales Tax Act, 1990, further read with Section 148 of the Income Tax Ordinance, 2001, punishable under clauses (10A), (14) and (14A) of Section 156(1) of the Customs Act, 1969, Sections 33 and 34 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001. 4. As per contravention report, the role of all associates in the crime, including Muhammad Siddiq (CNIC No. 42201-5940954-9) and Abdul Ghaffar (CNIC No. 42301-0752147-7) Partner of M/s. G.S.S. Traders, 18A, 19A, 1st Floor, Pak Chamber, West Wharf Road, Karachi clearing agents (CHAL No. 1043). Customs and Engineering Development Board (EDB) is being ascertained. FIRs. C.No. Appg 118A/DCI/R&A/Essa Steel/FIR/2019/, C.No. Appg-118-B/DCI/R&A / Essa Steel/FIR/2019/, C.No. Appg-118C/DCI/R&A/Essa Steel/FIR / 2019/, C.No.Appg-118-A/DCI/R&A Essa Steel/FIR /2019/, all dated 06.12.2019 were lodged accordingly against Essa Farooq and other associates in crime to be ascertained during investigation. 5. As per contravention report, subsequent to the lodging of the FIRs, efforts were underway to arrest the nominated accused person. The accused Essa Farooq filed Constitutional Petitions Nos. D-8053 of 2019 and D-9094 of 2019, wherein, the Honorable High Court of Sindh at Karachi, in its order dated 11-12-2019 in Constitution Petition No. D-8053 of 2019 and order dated 18-12-2019 in Constitution Petition No. D-8094 of 2019 restrained the Directorate General, Intelligence and Investigation (Customs) from arresting and taking any adverse action against the petitioner (Accused) and directed the petitioner to cooperate with the prosecution. In this regard the accused Essa Farooq was summoned and he appeared on 07-01-2020. He was asked series of questions related to the case, however, he could not give any documentary evidence of the existence of industrial unit of M/s Essa Steel in Hyderabad. However, he stated that he was unable to provide the evidence due to unavailability of data / documents at the time. Therefore, he was provided a list of documents that may prove existence of industrial unit at Hyderabad and prove production and sales of the finished products made out of concessionary imported steel, to submit on 09-01-2020, but he did not appear on the date. The accused was again reminded to appear and produce the required documents but he did not turn-up. 6. As per contravention report, since the accused was not cooperating in the investigation, therefore, to verify the existence of the industrial unit of M/s Essa Steel, the official of the Directorate General of Intelligence and Investigation-Customs, Regional Office, Karachi visited the provided address i.e. Plot # 13, Tando Yousuf Road, Zam Zam Industries, Cottage Area, Hyderabad, and found that the unit of M/s Essa Steel did not exist at the given address. However, a small industrial unit namely AR-Industries employing 810 workers was found. Upon enquiry from the worker namely Naveed son of Mohammad Hanif it was revealed that he did not know about M/s Essa Steel and the unit at the address is named as AR Industries that is owned by one Asif son of Qamar Uddin. The worker also provided copies of Sales Tax Invoices issued by M/s AR Industries NTN # 2662346-3. To verify the NTN, online enquiry with Federal of Board of Revenue (FBR) was conducted which revealed that, indeed, a unit named as M/s. A.R Industries was registered to Asif CNIC 41303- 7016202-3, on the given address. To proceed further into the matter, Mr. Asif was issued notice to appear on 09-03-2020 but he did not appear. However, based on the available evidence, it is proved that the industrial unit of M/s AR Industries exists on the address and unit of M/s Essa Steel does not exist. Mr. Asif his industrial unit's address use to illegally register the industrial unit of M/s Essa Steel that actually does not exist. 7. As per contravention report, that scrutiny of the sales record of M/s Essa Steel as provided by Engineering Development Board, revealed that M/s Essa Steel, in the month of Jun, 2019, filed / declared sales to M/s Zoya Steel Corporation NTN # 2225018-2 owned by Saleem Malik CNIC 37405-5051490-3, M/s Smart Steel NTN 7222207-4 owned by Muhammad Nasir CNIC 36302-4802618-5, M/s Jafir Trade NTN # 4117724-0 owned by Ghulam Jafir CNIC 36302-2042265-3, M/s Fine Steel NTN # 7222194-0 owned by Muhammad Yousaf CNIC 36102-6371408-1 and M/s. Modern Steel NTN # 5193707-5 owned by Abid Khan CNIC 21202-7517706-3 and to various unregistered buyers. To verify such sales, the registered buyers were issued notices on their registered addresses but the notices returned back due to incomplete, fake addresses. To verify the physical existence of the buyers, the official of the Directorate General of Intelligence and Investigation-Customs, Regional Office, Karachi visited the registered addresses of M/s Jafir Traders, M/s Fine Steel and M/s Smart Steel, but none existed on the given addresses. Moreover, Mr. Saleem Malik of M/s Zoya Steel Corporation, vide complaint dated nil received on 13.07.2020, received through the Directorate General, Intelligence and Investigation (Customs), Islamabad, stated categorically on oath that he has no business relations with M/s Essa Steel and he has not conducted any business with M/s Essa Steel. He further stated that his Sales Tax ID was handed-over to an advocate namely Shahid Shah son of Syed Noor Ahmed CNIC 42301-8357836-3, who has mis-used his ID and claimed fake sales invoices of M/s Essa Steel. Hence, based on the available evidence, the sales of M/s Essa Steel are fake / fabricated. 8. As per contravention report, to ascertain role of clearing agents, the agents Muhammad Siddiq and Abdul Ghafffar of M/s G.S.S Traders were asked to join investigation. On 06-01-2020, Muhammad Siddiq joined investigation and stated that his partner Abdul Ghaffar has passed away and submitted his death certificate dated 26-05-2016 issued by Secretary Union Administration-II, Garden East Jamshed Town, Karachi. To confirm the authencity of the death certificate a letter to the Union Administration-II, Garden East Jamshed Town, Karachi has been sent. Moreover, during interrogation, the clearing agent, Muhammad Siddiq admitted that he filed Into-Bond GDs and also claimed benefit under SRO 655(I)/2006 dated 22-06-2006 at the time of submitting of Ex-bond GDs. When asked for not claiming of SRO benefit at the time of filing of Into Bond GDs and then claiming of the same on Ex-bond GDs, he could not put forth any plausible justification. When he was asked why there is difference between thickness of coils as mentioned in Packing Lists of consignments and the thickness claimed against allowed quota, he replied that the SRO 655(I)/2006 dated 22-06-2006 is silent on the thickness and grade specification of the goods which are secondary in nature and the benefit provided by EDB to M/s. Essa Steel, is granted with respect to the quantity of the raw material which is not in dispute. However, perusal of SRO 655(I)/2006 dated 22-06-2006 revealed that as per condition II of the SRO, the manufacturer-cum-importer, at the time of import of approved items, shall make a declaration on the bill of entry or Goods Declaration (GD) to the effect that the items have been imported in accordance with his entitlement for the manufacture of specified items. Moreover, perusal of the Input Output Ratios and Capacity Utilization Certificate (Form-A), issued by Engineering Development Board (EDB), revealed that the benefit provided by Engineering Development Board (EDB) to M/s Essa Steel, is granted with respect to the quantity of specific thickness and grade specification of steel sheets and not only the quantity, thus the clearing agent to hoodwink the customs staff knowingly did not declare the thickness and the grade specification of the steel coils at the time of filing In-bond and Ex-bond GDs. 9. As per contravention report to ascertain the role of Engineering Development Board (EDB) a notice was sent to Chief Executive Officer of Engineering Development Board (EDB) to nominate officer who can provide information and relevant documents. In response Engineering Development Board (EDB) nominated Engr. Roshan Lal Manager (South) who submitted documents i.e. (a) Input Output Ratio and Capacity Utilization Certificate for the year 2018-19, (b) Input Material Consumption (Appendix-I) for the year 2018-19 (c) revalidation of Input Output Ratio and Capacity Utilization Certificate for the year 2019-20 issued by Yasir Qurban Deputy Manger, Engineering Development Board (EDB) (Tariff) and Asim Ayaz DGM-EDB (Coord) and Verification of Input Output Ratios/Wastages and Manufacturing Facility issued/certified by EDBs Technical team comprises of Engr Roshan Lal Haseji Manager - EDB (South), Sadaruddin Memon, Assistant Manager Engineering Development Board (EDB) and Mr. Muhammad Tariq of Motor Vehicle Research, Dev. and Establishment, (MODP), and Consumption Report, Statement of Purchase Orders and Delivery Challans issued by M/s Essa Steel. Notices to join investigation were sent to the aforementioned EDB officials; however, due to budget exercise 2020-21 and the Covid-19 pandemic they could not join investigation. Role of Shahid Shah son of Syed Noor Ahmed (CNIC 42301-8357836-3), Engineering Development Board (EDB) officials and Customs Staff is being ascertained in further investigation. 10. As per contravention report, in view of the above, it is established beyond any shadow of doubt that Essa Farooq of the M/s Essa Steel with connivance of other associates in crime have evaded customs duty and taxes amounting to Rs. 23,847,607/-, on 04 consignments/In-bond Goods Decelerations, cleared/filed at MCC Appraisement (East), Karachi by misusing and illegally claiming SRO 655(I)/2006 dated 22-06-2006 tacting violation of Sections 19, 32(1), 32 (2) and 32 (A) of the Customs Act, 1969, read with SRO 655(I) 2006, dated 22.06.2006 and punishable under clauses (10A), (14) and (14A) of Section 156 (1) of de Customs Act, 1969 read with Sections 3, 6, 7A, 33 and 34 of Sales Tax Act, 1990, further read with Section 148 of the Income Tax Ordinance, 2001. The Directorate has informed that similarly. 07 consignments In-bond Goods Decelerations of steel sheet coils were cleared/filed at MCC Port Muhammad Bin Qasim, Karachi with same modus operandi, evading duty taxes to the tune of Rs 91,191,341/-. Contravention Reports in respect of goods cleared from MCC Port Muhammad Bin Qasim, Karachi will be forwarded separately to the concerned Adjudication Collectorate. 11. Accordingly, Mr. Essa Farooq (CNIC No. 42301-6411249-3) of M/s. Essa Steel (NTN-3791808). Address:- (a).Office No. 104. 1 Floor. Business and Finance Centre, I.I. Chundrigar Road. Karachi & (b) Residence: 46/ A. Street No. 28, Khayaban-e-Mujahid. DHA, Karachi with their clearing agent and others associated persons (i) Mr. Muhammad Siddiq (CNIC No. 42201-5940954-9), Mr. Abdul Ghaffar (CNIC No. 42301-0752147-7) Partner Clearing Agent M/s. G.S.S. Traders (CHAL No. 1043), 18A, 19A, 1st Floor, Pak Chamber. West Wharf Road. Karachi, (ii) Mr. Saleem Malik (CNIC 37405-5051490-3), son of Allah Rakha. Proprietor of M/s Zoya Steel Corporation (NTN # 2225018-2). Plot No.2-I. Base No.1, Bazar No.4, Abu Hurara Market, I-8/2, Islamabad. (Buyer). (iii) Mr. Muhammad Nasir (CNIC 36302- 4802618-5), son of Ghulam Jafar. Proprietor of M/s Smart Steel (NTN # 7222207-4), Office No. 36, Trust Plaza, Near Dera Adda. Mumtazabad Town, Multan Buyer), (iv) Mr. Ghulam Jafir (CNIC 36302-2042265-3) son of Falak Sher, Proprietor of M/s Jafir Trader (NTN # 4117724-0), 5-Samajabad, Shah Rukn-e-Alam Town, Multan Cantt. Multan. (Buyer). (v) Mr. Muhammad Yousaf (CNIC 36102-6371408-1) son of Malak Raja. Proprietor of M/s Fine Steel (NTN 7222194-0), Address: Office No. 30, Lohari Gate, Mention Plaza, Mumtazabad Town. Multan (Buyer). (vi) Mr. Abid Khan (CNIC 21202-7517706-3) son of Mohammad Ashraf Afridi, Proprietor of M/s Modern Steel (NTN #5193707-5), Koki Khel, Katia Khel, Shah Kas, Jamrud, Khyber Jamrud, Peshawar. (Buyer). (vii) Mr. Asif (CNIC No. 41303-7016202-3) son of Qamaruddin of M/s AR Industries, address:- (a) Residence H = D/24, Cantt Housing Scheme, Gulistan-e-Johar, Karachi & (b). Office Address: M/s AR Industries, Zam Zam Industrial Cottages, Plot No. 13, Tando Yousif Road, Hyderabad, (viii) Mr. Yasir Qurban, Dy. Manger (Tariff), Engineering Development Board, 1st Floor, SEDC, Building (STP). Constitution Avenue, F-5/1, Islamabad, (ix) Mr. Asim Ayaz DGM (Coord), Engineering Development Board, 1st Floor. SEDC, Building (STP), Constitution Avenue, F-5/1, Islamabad and (x) Mr. Roshan Lal, Manger (South), Engineering Development Board, (Regional Office), PIDC House, 2nd Floor, Dr. Ziauddin Ahmed Road, Karachi were called upon to show-cause under the provisions of Sections 19, 32(1), 32(2) and 32(A) of the Customs Act, 1969, read with SRO 655(I)/2006 dated 22.06.2006, read with Sections 3, 6 and 7A of the Sales Tax Act, 1990, further read with Section 148 of the Income Tax Ordinance, 2001 as to why the evaded amount of duty and taxes to the tune of Rs. 23,847,607/- (Customs Duty amounting to Rs. 11,042,174/-, Additional Customs Duty amounting to Rs. NIL/-, Regulatory Duty amounting to Rs.2,905,836/-, Sales Tax amounting to Rs. 2,371,161/-, Additional Sales Tax amounting to Rs.2,214,246/- and Income Tax amounting to Rs. 5,314,191/-) along with default surcharge (to be calculated at the time of payment under Section 34 of the Sales Tax Act, 1990) may not be recovered from them and why penal action under clauses (10-A), (14) and (14A) of Section 156(1) of the Custom Act, 1969, Section 33 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001 should not be taken against them. 12. A show-cause notice issued and matter was adjudicated. The learned Collector of Customs (Adjudication-II), Custom House, Karachi passed an Order-in-Original No. 849/2021-2022 dated 30.11.2021 as under:- "22. In view of the foregoing facts proved that the charges of mis-declaration the instant consignments levelled in the show cause notice stood established. I, therefore, order the respondent Mr. Essa Farooq (CNIC No. 42301-6411249-3) of M/s. Essa Steel (NTN-3791808), Address:- (a).0ffice No. 104, 1st Floor, Business and Finance Centre, I.I. Chundrigar Road, Karachi and (b) Residence: 46 A, Street No. 28, Khayaban-e-Mujahid, DHA, Karachi to immediately pay the evaded amount of duties and taxes of Rs. 23,847,607/(Customs Duty amounting to Rs.11,042,174/-, Additional Customs Duty amounting to Rs.NIL/-, Regulatory Duty amounting to Rs. 2,905,836/, Sales Tax amounting to Rs.2,371,161/-, Additional Sales Tax amounting to Rs.2,214,246/- and Income Tax amounting to Rs.5,314,191/-). A personal penalty of Rs. 58,116,702/- equal to the offending value is also imposed to Mr. Essa Farooq (CNIC No. 42301-6411249-3) of M/s. Essa Steel (NTN-3791808), Address:- (a).Office No. 104, 1st Floor, Business and Finance Centre, I.I. Chundrigar Road, Karachi and (b) Residence: 46 / A, Street No. 28, Khayaban-e-Mujahid,…

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