MR. JUSTICE MUHAMMAD MUJEEBULLAH SIDDIQUI-(1). This appeal is directed against the order, dated 28-10-2000 by the learned Customs, Excise and Sales Tax Appellate Tribunal, Karachi.
2. The appeal was admitted to consider the following questions of law:-
(1) Whether the provisions of section 32 of the Customs Act, 1969 are attracted to cases where there is no motive to evade duties and taxes inasmuch as the goods temporary imported from the payment of duties and taxes?
(2) Whether the learned Adjudication Officer as well as the learned Appellate Tribunal Customs, Sales Tax and Central Excise was justified in omitting to note that as per S.R.O. 1374(1)71998, dated 17-12-1998, the 100% redemption fine provided therein is to be worked out with reference to the duties and taxes attempting to be evaded and not the duties and taxes leviable on the whole consignment?
3. Heard Mr. Usman Shaikh, learned counsel for the appellant and Mr. Raja M. Iqbal, learned counsel for respondent No. 2.
4. The admitted facts are that the appellant filed bill of entry with the statement that the weight of the imported goods was 6749 Kilograms while the actual weight of the goods arrived, was 7541 Kilogram. Thus, the goods arrived were in excess of the declared weight. Consequently, a contravention report was prepared. The issuance of show-cause notice was waived by the appellant and on his request the issue was decided by the Additional Collector (Adjudication-II) on ,the basis of information duly confronted to the appellant and the explanation furnished. The appellant did not deny the arrival of excess weight as compared to the declaration made in the Bill of Entry but .Took a plea that it was the fault of supplier who generally send 10 to 15% extra fabric for the purpose of sampling. However, the appellant was not able to produce any evidence to substantiate the contention and consequently the explanation was rejected. The Adjudicating Officer ordered for outright confiscation of the consignment with an option to redeem the goods against 100% fine of the value of the consignment as per 5. R.O. 1374(I)/98, dated 17-12-1998. The penalty in the sum of Rs. 50,000 was also imposed. The First Appeal preferred before the learned Tribunal was dismissed and hence this Second Appeal before us.
5. Mr. Usman Shaikh, learned counsel for the appellant reiterated the contention that the excess weight arrived, because of fault on the part of supplier. However, he has conceded that no evidence in this regard was produced before Adjudicating Officer or the Tribunal.
6. In the above circumstances, we are of the considered opinion that the impugned order of the Tribunal is not open to any exception. The answer to Question No. 1 is not necessary because it depends on the finding of fact to the effect that an importer has no motive to evade the duties and taxes and this question of fact has not been proved by the appellant.
7. So far the question No. 2 is concerned, it is answered in the terms that the redemption fine is to be worked out with reference to the duties and taxes attempted to be evaded and not the duties and taxes leviable on the whole consignments. In the facts and circumstances of the case the respondents are directed to issue Delay and Detention Certificate. The Appeal stands disposed of as above.
8. After hearing the learned Advocates for the parties in Court today, the Appeal was disposed of by a short order. These are the detailed reasons in support thereof.