1. ORDER: MRS. ASHRAF JEHAN, MEMBER (JUDICIAL).--(1). By this single order, I propose to dispose of Customs Appeal Nos, 619, 620, 698, 700, 730, 731, 964, 965 and 966/2004 filed against the Order-in- Original No, 32 to 126/2004 dated 29.05.2004, as they arise out of common facts and questions of law.
2. 2.The facts giving rise to the present appeals are that the appellants were served with the Show Cause Notices issued by the Additional Collector of Customs, Adjudication-I, demanding short recovery of duties and taxes regarding importation of paper, paper boards and allied paper products. The above Show Cause Notices were based upon information received by the customs authorities that a group of importers through their authorized customs agents and indenters M/s. International Business Management (IBM), Karachi in collusion with each other were engaged in criminal act of under-invoicing the import of paper products by submitting untrue import documents to the customs authorities with criminal intent to evade duties and taxes by committing such fraud. Upon receipt of such information the office of Indenter M/s. International Business Management was searched under section 163 of the Customs Act, 1969 and the relevant record included computerized data were seized and the Show Cause Notices were issued to the importers, customs agents and indenters and ultimately Order-inOriginal No, 32 to 126/2004 dated 29.05.2004 was passed, which is impugned before this Tribunal.
3. 3.Being aggrieved by the above order, Appeal Nos, 698, 700 730, 731 and 966 of 2004 were filed on the following grounds:-- (a)That impugned order is totally silent as to which consignment was imported by the appellant and that what was the value of goods and what was the transaction value, assessed value and that how it was released whether on the basis of declared value or as the case may be assessed value. So much so that no detail of sale confirmation (contract) or as the case may be remittance by the appellant has been given in the impugned order. Both show cause notices as well as impugned order contained vague type of allegation. While referring imported transaction in the enclosed sheet, no effort is made to evaluate that each and every import transaction is hit by the mischief of section 81(1)(2)(3)(4) of the Customs Act, 1969. Hence, impugned order is patently illegal and void.
4. (b)That respondent while passing the impugned order has confiscated the goods with an option to redeem the same on payment redemption fine equal 30% of the ascertained value of offending goods which were not available. Respondent seems to have totally loose sense and totally lost sight that goods were assessed and released by the Customs authorities on payment of duties and taxes long ago. It is not understood under which provision of law the goods which are not available either with the customs or with the appellant or as the case may be even in the market can be confiscated and allowed to be redeemed. This shows non application of independent judicial mind to the matter by respondent. It also reflects attitude of respondent towards the rights of tax payers/assessees/citizens. Perusal of impugned order shows that respondent even did not go through the record nor he was aware of actual facts. Probably impugned order was prepared and typed by some subordinate functionary who was unaware of law on the subject and respondent just signed it without going through it. Hence, impugned order is patently a void order in the eyes of law.
(c) That perusal of show cause notice as well as impugned order revealed that some raid was conducted by customs authorities at some premises and certain computerized and other record might have been seized which has nothing to do with the appellant. A lengthy imaginary story has been mentioned in the show cause notice as well as in the impugned order which has no relevancy at all with the case of appellant. Respondent while passing the impugned order has fail to incorporate the reply given by appellant as most probably he did not even bother to read it. Had the reply given by appellant been gone through by respondent, impugned order would have not been passed without providing requisite material/record information to the appellant. It is further pointed out that respondent passed impugned order in case of M/s. Hafeez Tabat Ghat, Karachi but incorporate therein reply given by certain other importers and their lawyers due to the reasons best known to respondent.
5. (d)That while leveling charges, respondent never furnish the copies/detail of documents namely detail of goods imported by him alongwith certain other information/documents including bill of entry contract examination report, commercial invoice, sale confirmation, evidence of remittance, evidence of transactional value of identical goods, copies of notices under section 25(4) of Customs Act, 1969 and copy of order passed under Rule 109(3) of Customs Rules, 2001 notified vide SRO 450(1)/2001 dated 18.06.2001 to substantiate the allegation made in the Show Cause Notice.
6. (e)That it is settled preposition of law that if the goods are not available, same can neither be confiscated nor can be allowed to be redeemed. Moreover, in the absence of goods, no penalty can be imposed under clause (14) of section 156(1) of Customs Act, 1969 because presence of goods and value thereof is condition precedent to imposition of redemption fine and penalty. Since admittedly the goods are not available, thus, confiscation thereof, extending option to redeem the same and imposition of penalty are illegal, void, unjust without lawful authority and of no legal effect.
7. That appellant never made mis-declaration of value. He presented true and correct documents in respect of all the consignments imported by him till date. He never remitted foreign exchange through T.T. in respect of any consignment imported by him.
(g) That the respondent erred in law by not issuing specific Show Cause Notice with complete detail of import, detail of goods imported by him alongwith certain other information/ documents including bill of entry contract examination report, commercial invoice, sale confirmation, evidence of remittance evidence of transactional value of identical goods, copies of notices under section 25(4) of Customs.
8. Act, 1969 and copy of order passed under Rules 109(3) of Customs Rules, 2001 notified vide SRO 450(1)12001 dated 18.06.2001 to the appellant for no fault on the part of appellant. In the absence of any lawful evidence of violation under the Customs Act, 1969 and the absence of speaking Show Cause Notice was nothing except source of harassment to the innocent appellant.
9. 4.The Appeals Nos, 619 and 620 of 2004 have been filed on the grounds as mentioned below:-- (i)That the respondent erred in law to issue Show Cause Notice to the appellant for no fault on his part and in absence of any lawful evidence for any violation under the Customs Act, 1969. The issuance of Show Cause Notice was nothing except source of harassment to the innocent appellant.
10. (ii)That the description, quantity and quality of goods was examined by customs prior to release of goods and found intact as per shipping documents and declaration contained in the Bill of Entry.
11. However, the value of goods was assessed to duty taxes as per value fixed by the customs itself under Section 25-B etc., of the Customs Act, 1969.
12. (iii)That no contravention was liable to be alleged against the appellant above named for the past, and closed case. As the assessment order was neither challenged before the competent authority nor got the same reopened by the appropriate authority within the stipulated period of limitation contained in the Customs Act, 1969.
13. (iv)That the impugned judgment has no bearing on the legal rights of the appellant. As it is silent about the facts of the case of importer or appellant. Which the respondent was under obligation to pass a speaking judgment as to discuss and prove the mens rea through un-impeachable evidence beyond the shadow of any doubt.
14. (v)That the impugned order is void, and nothing except blind man's stick to be applied blindly on the innocents mutates mutandis. Which 'mutates mutandis' practice is unwarranted by law, as there are hardly two criminal cases having involved the same state of mind, intent, and act of omission or commission.
15. (vi)That it is unwarranted by law to punish 94 or 200 persons without discussing the facts of their cases individually for awarding punishment. Because each and every importer has:-- Imported different quality goods, Indifferent quantities, During different occasions/times, From different suppliers, Through different agents/indenters etc. 5.The appellants in Appeal No, 964/2004 have taken the following pleas:--
(i) That the appellant is quite innocent and has been implicated in this case with mala fide intention without any just and rational reasoning. It is submitted that the appellant has never obtained any indent or sales confirmation from M/s. International Business Management, Karachi, the indenter, whose office was allegedly raided. Therefore, to involve the appellant in the case of indenter without any documentary evidence against the appellant is against the law as well as against the principle of natural justice.
16. (ii)That the appellant has never imported any class of paper or paper board through the indent of M/s. International Business Management (IBM), nor the appellant having any concern or relevancy either with the said indenter or ever obtained any services from it being Clearing and Forwarding Agent and therefore, the involvement of the appellant in the present case on the basis of the material acquired from the office of the said indenter (IBM), is not only remote but impossible.
17. (iii)That the allegation of evasion of duties and taxes to the Government exchequer amounting to Rs,9,02,301/- in not less than thirty five transactions as alleged in the show cause notice is nothing but a figment of imagination of learned customs officer as the appellant has never transacted any kind of business with M/s. International Business Management (IBM), Karachi, the indenter, therefore the alleged demand is totally purported and fabricated.
18. (iv)That it is reliably learnt that the appellant and all other imports have been implicated in the present case on the behest of local manufacturers of paper and paper board who wanted to monopolize the local market and do not wish to let the importers sale imported paper and paper board which is of superior quality and is available at competitive price.
19. 6.Lastly, in the Appeal No, 965/2004, the grounds taken by the appellants are hereby reproduced as under:-- (i)That the impugned order is opposed to the facts of the case and is contrary to law. It ignores the relevant and material considerations and is based on irrelevant and immaterial considerations.
20. (ii)That the learned respondent No, 1 erred in law in ignoring the facts of the case and in passing an omnibus order without any regards to the facts of a particular case.
21. (iii)That the learned respondent No, 1 failed to appreciate that the show cause notice is vague and ambiguous and ought to have been vacated on this ground alone. The show cause notice fails to disclose under which sub-section of section 32 it has been issued. That it has been held by the superior that where the show cause notice fails to level specific allegations and state clearly under which sub-section of section 32 the same has been issued, it cannot be considered as a show cause notice that has been validly and properly issued under section 32 of the Customs Act, 1969.
22. (iv)That the learned respondent No, 1 has erred in holding at paragraph 12 of the impugned Order- in-Original that the question of limitation is a matter of technicality. It is submitted that section 32 of the Customs Act, 1969 is not a directory provision and after the prescribed period of time has lapsed; no recovery can be made under this provision. That reliance may be placed on the judgment of Supreme Court of Pakistan reported as Federation of Pakistan and others v/s Ibrahim Textile Mills Limited & others PTCL 1993 CL. 532.
23. (v)It is stated that the show cause notice relates to consignments imported during the period November 1999 to May 2000. The show cause notice was issued on 19.12.2003, that under sub- sections (1) and (2) of section 32, where duty is not levied or is short levied as a consequence of a person making a statement or submitting a document knowingly or having reason to believe that the same was false in any material particular or where duty was not levied or was short levied by reason of any collusion, the limitation period for issuance of a show cause notice is five years. It is submitted that sub-sections (1) and (2) of Section 32 are not attracted to the case of the appellant.
24. That no particulars of any false document having been submitted or any false statement having been made by the appellant has been provided in the show cause notice. It is submitted that no case can be made out under section 32(1) and (2) in the absence of any specific particulars relating to the alleged mis-declaration. That reliance may be placed on the case reported as M/s. D. G Khan Cement Company Ltd. v/s. Collector of Customs, Sales Tax and Central Excise, Multan and 2 others - 2003 PTD 1997.
25. 7.In the present appeals the department was directed to file specific comments in each case but instead of filing comments the department moved an application under section 151 CPC, praying therein, that all the appeals covered under the Order-in-Original No, 32 to 126/2004 may be remanded back, in view of the objections raised by the appellants.
26. 8.I have heard the learned counsel appearing for the appellants and Mr. Haidar Iqbal, Advocate for the respondent. The learned counsel for the appellants have reiterated the arguments as mentioned in the memo of appeal and further drawn the attention to the contents of Show Cause Notices and have stated that in all the cases imports of the appellants were not from Indonesia.
27. The contents of Show Cause Notices are self-contradictory, having no relevancy with the imports of appellants, therefore the department has no case against the appellants. While on the other hand, learned counsel for the respondent has conceded that the Show Cause Notices issued to the appellants are not in accordance with law.
28. 9.I have considered the arguments advanced before me and perused the case record. The perusal of impugned Order-in-Original goes to show that the adjudicating authority while clubbing the cases of 94 importers had passed Order in the case of M/s. Hafeez Tabat Ghat, Karachi and had applied it to all importers. The main objections from the appellants' side are that the Show Cause Notices are self-contradictory and do not contain any specific allegation of under invoicing or collusion with M/s. International Business Management and even in some of the show cause notices there is no mention of the import/commodity, allegedly imported by the appellants and merely on the basis of illegal Show Cause Notices they have been penalized by the department. In order to address the above contentions, I have examined each and every file and find that Show Cause Notices issued in these appeals are self-contradictory and contain incorrect and irrelevant facts and there are imports from countries other than Indonesia, not only this but some of Show Cause Notices are even totally silent about the name of the import/commodity. In the present cases the appellants in order to substantiate their contention have also filed the copies of bills of entry in respect of their imports, wherein the customs department itself had enhanced the value of the goods for the purpose of levy and collection of duty and taxes.
29. 10.Moreover, the Order-in-Original has been passed in the case of M/s. Hafeez Tabat Ghat, Karachi and the above order has been applied mutates mutandis in the cases of 94 importers without any reference to the facts of the each case. It would be relevant to mention that in all the cases the Show Cause Notices had been issued on the same pattern, which either do not contain any specific allegation against the appellants or are full of material contradictions. Looking to these glaring discrepancies and illegalities the learned counsel for respondent has also conceded that the Show Cause Notices issued to the appellant are not only containing incorrect facts, but are also not in accordance with the law.
11. A careful perusal of the Show Cause Notices reveal that the facts of the cases of different importers have been mixed up and in many cases facts recorded in the Show Cause Notices are incorrect, contradictory to the record and self-contradictory. Even in some of the cases the declared and assessed value has been shown more than value at which the customs authorities had suggested to assess those goods in the Show Cause Notices. Obviously, in such circumstances no loss to the exchequer can be attributed to the importers nor it can be held that any case of mis- -declaration within the meaning of section 32 of the Customs Act, 1969 is made out. Looking to the above admitted facts, any further action against the appellants on such premises cannot be sustained.
12. It is well settled law that one cannot go beyond the allegations mentioned in the Show Cause Notice and since as mentioned earlier the Show Cause Notices are either self- contradictory, vague without any specific allegation or containing incorrect facts, therefore have no legal sanctity.
30. Consequently, the appeals are allowed and the impugned order is set aside so far as the cases of present appellants are concerned. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.