FINDINGS /DECISION ' JUSTICE (RETD.) MUNIR A. SHEIKH (FEDERAL TAX OMBUDSMAN).---The complaint has been filed against the Collectorates of Customs MCC, Port Muhammad Bin Qasim, against the order-in- original, dated 10-5-2008 under which, recovery of dues has been ordered under subsection (3) of section 81 of the Customs Act without adhering to the time-frame for final assessment provided under subsection (2) of section 81 ibid. It has been alleged that the Deputy Collector of Customs has indulged in maladministration on the (irrelevant and misconceived) ground that the Valuation Ruling was an assessm ent order passed in the manner provided under Paragraph 66 of A CGO 12 of 2002. The complainants have argued that provisional determination/assessment of duty and taxes had attained finality on 12-7-2006; therefore nothing was payable, but the amount secured as security has not been refunded and the respondents were applying pressure on the complainants in the case.
2. The complainant is the same importer and the same consignment about which an earlier complaint was made vide No.422-K of 2008 on account of alleged unlawful blockage of filing of Goods Declaration and unlawfully issuing a demand-cum-show-cause notice, dated 23-9-2006. It has been stated that the present complaint has been filed against the aforesaid order-in-original, which was passed under the misconceived idea that the Valuation Ruling, dated 17-5-2006 was the assessm ent order. Both the aspects have been examined in the investigation of complaint No. 422-K of 2008 and appropriate recommendations have been made to the Federal Board of Revenue. The facts of the case being the same need not be reiterated in the present complaint.
3. During the hearing of this complaint, the learned counsel for the complainants stated that Valuation Ruling, dated 17-5-2006 was not an order under subsection (2) of section 81 of the Customs Act read with paragraph 66 of C.G.O. 12 of 2002. The order-in-original passed by the Deputy Collector on 10-5-2008 finalizing the assessment under subsection (2) of section 81 ibid was barred by time and, therefore, unlawful. He further stated that even if the Valuation Ruling has been issued in exercise of power under section 25A of the Customs Act, the assessment has to be finalized by the Collectorate of Customs in accordance with law and within the time-limit prescribed under section 81 of the Customs Act. Since the Department has issued an order on 10-5- 2008, it was barred by time and therefore not acceptable. The provisional assessment on the basis of declared value had already attained finality and, therefore, under subsection (3) of section 81, the security ought to be returned.
4. The Deputy Collector of Customs replied that under subsection (2) of section 81 of the Customs Act, the language has been changed and instead of passing an assessment order it only mentions about the determination of the value of goods within the period of nine months. The determination of value was made through Valuation Ruling within the period of nine months which was valid (as held by the President of Pakistan in one of his judgments). He stated that since the Valuation Ruling had been issued within the period of nine months and the provision of passing an assessment order had been done away with it was not necessary to pass the order as provided in the Act before 2005. The stated that this matter has already been agitated in Complaint No.422-K/2008 and there was no necessity of filing another complaint on the same subject.
5. In rebuttal of the Deputy Collector's argument, the learned counsel stated that Complaint No.422-K/2008 was filed primarily against the unlawful and unnecessary blockage of the processing of documents whereas this complaint has been filed against illegal judgment passed by the Deputy Collector in a closed transaction.
6. While it is correct that determination of value was made through Valuation Ruling within the period of nine months, it needs to be added that an assessment order by the concerned assessing officials/Customs Group has to be passed on the basis of the Valuation Ruling or valuation advice and the presumption that the Valuation Ruling by itself would be an assessment order is misconceived.
7. It may be added that the Valuation Ruling was issued on 17-5-2006 but the demand-cum-show- cause notice was issued on 23-9-2006 after more than four months. There was no justification for this delay nor for the fact that the value determined by the Valuation Department was not intimated to the importer. It was also unjust that a period of one year and seven months elapsed before the adjudication order was passed by the Deputy Collector of Customs. If the show-cause notice and hearing notices were correctly delivered to the importer who did not attend the hearing, an ex parte order could have been passed instead of adjourning the hearing about ten times. It is established that the case was decided two years after the issue of Valuation Ruling which amounts to maladministration.
8. This office has examined this aspect in Complaint No.422-K of 2008 and recommended to the Federal Board of Revenue to:--
(i) direct the director General of Customs Valuation to review the valuation of goods under section 25A of the Customs Act after affording the Complainants the opportunity to represent their case, contest the evidence relied upon by the Valuation Department, and hearing their arguments, and decide the review case within thirty days; and
(ii) compliance be reported to this office within forty-five days.