MUHAMMAD ARIF MOTON (MEMBER JUDICIAL- II). -This order will dispose of Customs Appeal No. 170 of 2008, filed by the appellant, against Order-In-Appeal No. 946 of 2008, dated 22.3.2008, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals) Karachi.
2. Brief facts of the case are that the appellant electronically filed goods declaration vide CRN-l- HC-405948, dated 29.9.2007 said to contain interlining material buckrum, hand sewing needles and measuring tape etc., at total invoice value of US$. 9949.10. The appellant determined his liability of payment of applicable duty and taxes and sought clearance under Section 79(1) of the Customs Act, 1969. Ln order to check as to whether the appellant paid the correct and legitimate amount of duties and taxes, the under reference GD was selected for scrutiny in terms of Section 80 of the Customs Act, 1969. Perusal of the case reveals that appellant is guilty of misdeclaration in terms of weight of the goods, it is pertinent to mention here that weight is considered a prime factor in determination of the ascertained value of the Interlining Material Buckrum. On being physically examined the weight was found in excess than the declared one. The appellant declared the weight of buckrum as 9255 kgs in his GD, whereas on examination the net weight was determined as 23675 kgs, resulting in an excess weight of 14420 kgs being 156% of the total consignment: Appellant was thus found guilty of concealing the actual weight. The total amount of revenue involved has been determined as Rs. 230143. Considering the available data of similar kind of goods in terms of sub-section (13a) of Section 25 of the Customs Act, 1969 and rule 107(a) of the Customs Rules, 20*01, the determined value of the offending goods was fixed at Rs. 876736. The contravention report alleged that the appellant had mis declared the weight of the goods deliberately and wilfully to defraud the government of legitimate revenue also by suppressing the actual value. The appellant has therefore contravened the provisions of Sections 79(1), 32(1), 32(2) and 32A of the Customs Act, 1969 and Section 148 of Income Tax Ordinance, 2001 punishable under clauses (14), (14A) and (45) of Section 156(1) of Customs Act, '1969 and 148 of Income Tax Ordinance, 2001. A show-cause notice dated 20.10.2007 was issued to the appellant by the Additional Collector of Pass.
3. Adjudication proceedings were initiated against the appellant and the learned Additional Collector passed the Order-in-Original No. 2060 of 2007. The relevant extract is as follows:- "I have gone through the electronic declaration, invoice, examination report, as well as the reply submitted on behalf of the importer. The simple arguments that excess quantity was sent by the shipper due to mistake of the office staff is not tenable as no foreign supplier would send goods is excess and more than the quantity for which payment is either made to him in advance or is actually agreed-to be paid by the importer. Therefore the value of goods found in. Excess is amply covered under the provisions of Section 25 of the Customs Act, 1969 and misdeclaration regarding quantity and value is established against the importer. I therefore, order confiscation of the offending goods in terms of clauses (14) and (14A) of Section 156(1) of the Customs Act, 1969.
Option is however given to the importer to get the goods redeemed under Section 181 of the Act, read with S.R.O. 487(l)/2007, dated 9.6.2007 on payment of redemption fine equal. To 50% of the determined value of the offending goods. A personal penalty of Rs. 200,000 is also imposed on the importer."
4. The order was challenged before Collector (Appeals) who also vide his order dated 22.3.2008 dismissed the appeal. The relevant extract is as follows:- "I have examined the case record and considered submission of both the sides. This is a simple case of misdeclaration of one item (bupkrum) attributed against the appellants, it has been observed that some of the importers have been trying to derive undue advantage of the MCC .Automated system of clearance of goods. Different new and ingenious and even technical methods are adopted by indulging into misdeclaration of the description, quantities, weights and value etc; aimed to deprive the public exchequer of its legitimate amount of revenue. When caught, it is termed as "mistake" and always committed in the favour of importers themselves, costing dearly to the government, if remain undetected. Moreover, the appellants have not furnished any piece of evidence to prove that it was a mere mistake. No step was taken to immediately correct the situation and show their bona fide before the Customs. How could the importers be unaware about the correct contents, description, quantities and weight of the goods for which they made significant payment to the suppliers. There was no mistake but the case of deliberate and international misdeclaration. As regards the issue of valuation, the Collectorate has assessed the value on the basis of the data of imports available with them. Opportunity to show- cause was also provided to them at the original stage. Rulings Cited by the learned Consultant are old and not relevant with the facts of the case. Moreover they have not provided any convincing documentary evidences to show unfairness and discrimination in assessment of the subject value in this case. The value taken in the case is quite fair and according to the data available of imports in the MCC. The difference in weight was colossal by 156% found higher than the declared weight.
The department's contention that the appellants should approach Director General (Valuation) as per Section 25-D of the Act for revision of the value is however, not tenable nor applicable and irrelevant in this case. The subject assessment of value, admittedly on the basis of import data than fixation of value in terms of Section 25-A of Customs Act, 1969 by the Collector of Customs or Director of Customs Valuation therefore falls outside the ambit of Section 25-D".
Hence this appeal on the following grounds:---
(a) The orders-in-original/appeal are stereotyped and not speaking orders with the reasoning given by the respondents for ignoring the grounds taken by the appellant in the memo, of appeal and how he reached at the conclusion that the appellant in fact made a deliberate misdeclaration.
Contrary, the respondent instead of deciding the appeal judiciously within the parameter of law, spoke about his opinion and the said fact is evident from the contents of order-in-appeal which indeed contains arguments of the appellant as "quote/unquote" but with ho rebuttal. Resultant, the impugned judgment of the respondent least reflects professionalism, fairness, neutrality, reasonableness, clarity and justice. Such type of orders are set aside by the superior Courts as absurd, baseless and suffering from legal infirmity.
(b) That the Adjudicating Authority and respondent failed to appreciate that the gross weight of the appellant consignment was 40325 Kgs i.e. Two containers. Contrary, one container was weighed, which reveals weighment of 23675 Kgs and the second container weighing 16650 kgs was not weighed. Meaning thereby that if the second container should had been weighed, no shortage or excess weight would had been found. The lapse was on the part of terminal operator and the customs officials posted at terminal who instead of asking the documents from the appellant under rule 437 of Sub-Chapter I of Chapter XXI of Customs Rules, 2001 for reaching at correct decision regarding the difference in weight. Contrary, the appellant Was made escape goat for the, committed deficiency and lapse on their part.
(c) That the respondent also failed to appreciate that not a single unit imported in the consignment was either found excess or less. Rather were found in accordance with the declaration. Whereas, the customs authorities intentionally considered the lot number indicated in the column of quantity of the 1st item as against actual quantity of 117600 meters as the quantity of the said items in Kgs instead of meters. The said fact stood re- verified from the packing given underneath of GD.
(d) That the stance of the appellant that the quantity mentioned against item No. (ii) i.e. Hand Sewing Needles as 4250000 Kgs as in the transmitted GD as against pieces in the column of quantity was totally ignored by the respondent, In case, the said declared weight against item No.
(ii) considered correct, then the weight should had been found in excess in exorbitant percentage as against declared. There is no point of considering the quantity in pieces as against kgs against item No. (ii),; meaning thereby that the customs officials were well aware of the facts that not a single unit of the goods imported by the appellant were either excess or less in either pieces or Kgs.
(e) That the software device by the Pass is full of short coming because the programming has not been done in consideration of the provision of Act and the Rules and Regulations made there- under. Due to the said short coming, every discrepancy committed inadvertently is termed by the respondent Collectorate as misdeclaration attracting Section 32 of the Customs Act, 1969 despite not warranted in the given circumstances of such cases and appellant's case is one of that type.
(f) That the captioned case of appellant was very simple i.e. If the weighment was found excess against Item No. (i) and obviously excess in innumerable percentage was found against Item No. (ii), it would have been appropriate for the customs to advise the appellant or his clearing agent to get the amendment of both the items under the provision of Section.205 of the Customs Act, 1969 prior to proceeding in the matter, for adjudication which was unwarranted in the given circumstances of consignment and its clearance subsequently as it is very much within the norms of natural justice -and fair play and neither it is prohibited under the provision of Section 29 ibid. Contrary through Rule 434 of Sub-Chapter 7 of Chapter XXI of Customs Rules, 2001 the Federal Board of Revenue made Sections 205 and 29 of the Customs Act, 1969 despite not omitted from the Act as redundant because neither an importer can seek amendment after taking notice of the discrepancy/error nor the customs officials can allow the amendment by virtue of non-availability of excess in the software, once the importer files electronic GD in terms of Rule 433. Nevertheless the said rule least after or amends or rescinds the provisions of Sections 29 and 205 of the Act, which has to be adhered to by the field formations but ironically rule 434 is considered by the Customs as above to the provision of Act. Reliance is made on the reported judgment PLD 1989 Supreme Court 222 in the case of Messrs Nishat Mills Ltd. v. Superintendent of Central Excise Circle- ll 2000 PTD 399 Superior Textile Mills Ltd. v. FOP and 1982 SCMR 522 Messrs Arjun Salt Chemical v. UC Gharo.
(g) The respondent's observation in Para 6 of the order that "no step was taken to immediately correct the situation and show their bona fide before the customs" is contrary to the facts and rules framed because the appellant invariably f insisted upon the discrepancy and allowing of the amendment at the time of hearing but of no avail by virtue of expression of rule 434 of Sub- Chapter I of Chapter XXI of Customs Rules, 2001, which had overriding effect on Section 205 of the Customs Act, 1969. Resultantly in order to get his goods cleared to save him from terminal, storage/demurrage and* container detention/rental charges, he accepted the charge subject to challenging it before the competent authority subsequently, which he did while appeal before the respondent and subsequently before the Appellate Tribunal through instant appeal.
(h) That yet another hidden charges in the show- cause notice is against the appellant is suppression of the value as evident from para.3 of show-cause notice showing loss Of , revenue calculated after consideration of available data of similar kind of goods in terms of sub-section 13(a) of > Section 25 of the Customs Act, 1969 and Rule 107(a) of the Customs Rule, 2001. These charges cannot be considered valid in the eyes of law. Principally appellant value has to be treated as transaction values within the parameter of Section 25(1) of the Customs Act, 1969. Ln case of valuation dispute the onus of proof stand shifted to the respondent, who is under legal obligation to produce material to ^ substantiate as per para.78 of CGO 12/2002, dated 15.6.2002. The value relied upon by the respondent is a nullity in law as these are not based on evidential invoices or data of import as expressed in Rule 110 ibid and also does not pertain to the corresponding contemporaneous period mentioned in Rule 107(a) ibid, ln fact assessment has been made arbitrarily/unilaterally by the respondent of the imported consignment without any legal sanctity.
The data repository relied upon has been discarded by the Federal Board of Revenue vide their letter C. No. 1(25) S/val/98, dated 22.7.2000. Also no evidence as per- mandated requirement of law was provided by the Customs. Reliance is placed on judgments of High/Supreme Courts reported as 1986 MLD 190, PLD . 1996 Karachi 68, 2002 PTD 2957, 2004 PTD 38, 2005 PTD (Trib.) 617, 2006 PTD 909, 2008 PTD 1250 and 2008 SCMR 438.
(i) That the Additional Collector, Model Customs Collectorate has disputed the correctness of the declared value of the appellant and has assessed his consignment while applying a unilateral and arbitrary value prohibited under sub-rule (iii) of rule 110 of the Customs Rules, 2001. No assessment of value can be made by any customs officials under the said method. The valuation has to be done with the application of the provision of Section 25 of the Customs Act, 1969 in sequential manners and while keeping into consideration the Rules 107 and 122 of Sub-Chapter I of Chapter IX of the Customs Rules, 2001.
(j) That it is not out of place to add here that as per norms of natural justice and even under Article 117 of the Qanun-e-Shahadat, it is for the person levelling allegation to bring home the allegation of misdeclaration of value, no proceeding on the basis of whims and wishes and conjectures, presumptions and surmises can be undertaken as held by the Supreme Court and High Courts in umpteenth judgments e.g. (PLD 1996 Kar. 68) in the case of Messrs Kamran Industries v. The Collector of Customs, Exports; (1992 SC MR 1083) Latif Brothers v. Deputy Collector of Customs, Lahore; (PLD 1959 SC (Pak.) 364) Eastern Rice Syndicate v. C.B.R. (1969 SGMR 708); The Collector, Central Excise and Land Customs, Chittagong v. Imdad AH and (2004 PTD 2592) Karachi Bulk Storage and Terminal (Pvt.) Ltd. v. Controller of Customs (Valuation), Karachi and others. Their Lordship of High Court of Sindh in this latest judgment held that: "Enhancement of value of goods by the Customs Department on the ground that the declared value was not the true price-Basic requirement for refusing to accept the declared price in view of Section 25, Customs Act, 1969 was that the department was in possession of sufficient material on the basis of which it could be said that department has rightly come to the conclusion that the declared price/value of the goods by way of concealment or undervaluation or was not the true price-Onus was on the Customs Authorities to prove that the declared price was untrue before the same could be rejected warranting the enhancement or determination of the value/price- Customs Department, in the present case, failed to produce any material or evidence in support of their contention that they had relied on the very important material in concluding that the declared price was not the true price, was by way of concealment or was undervalued and further that at the relevant time the price of the goods in question was more than the declared price-ln view of lack of material, the action for rejection of the declared values/prices and for determining/ ascertaining of the value or price of goods, would ascertaining of the value or price of goods, would appear to be arbitrary, whimsical, capricious and in complete disregard of the provisions of Section 25, Customs Act, 1969 which required the Customs Authorities to disclose evidence or material for rejecting the declared value/price and enhancing/ determining the same.
(k) That the contents of Order-in-Original transpires that the adjudicating authority spelled therein about the Notification No. 487(1) of 2007, dated 9.6.2007 for imposing redemption fine and penalty.
Whereas the show-cause notice is silent in this regard. Resultant the Order-in- Original is outside the four corners of the show- cause notice. No fresh grounds can be taken at belated stage as laid down by the Supreme Court of Pakistan in its reported judgment 1987 SCMR 1840. The Collector of Central Excise and Land Customs and others v. Rahim Din. Wherein their lordship of Supreme Court held that:- "Order being ultimately based oh a ground which was not mentioned in the show-cause notice or earlier taken was ' palpably illegal on face of it."
(I) That it is also appropriate to add here for the sake of clarification and seeking a judicial opinion of the Tribunal in regards to the interpretation of Section 181 of-the Customs Act, 1969. Which is invariably misread and interpreted contrary to the provision of-the Act. The provision indeed speaks about redemption fine and penalty, but that does not contemplate that it should be exorbitant and in support of our stance it is submitted that trow on the basis of allegations of impugned revenue loss of Rs. 230,143.0. The respondent can impose redemption fine to the extent of 50% amounting to Rs. 438,368.00, beside penalty of Rs. 200,000.00. Such type of act is never appreciated by the Superior Court of Pakistan. The redemption fine if imposed cannot exceed the amount of revenue loss (the value empowering the respective adjudicating authorities Under Section 179 of the Customs Act, 1969). Ln any manner and under any circumstances and when a redemption fine is imposed, the penalty should be nominal. The criterion adopted by the adjudicating authorities is absurd and in negation of the norms of natural justice and the provision of the Act.
5. The departmental representative supported the orders passed by Additional Collector of Customs of MCC of Paces and the respondent while stating that:-
(a) The weighment of goods is the sole discretion of the customs and it is for it to get the goods weighed through terminal operator, to the extent of container/goods desired by it.
(b) That only one container was selected for examination and weighment, which transpired difference in weight in item No. (i) by 156% on the strength of which Show-Cause notice was - issued. No need was felt for calling for documents and for weighment of the second container.
(c) That no amendment can be allowed under Rule 434 after filing of GD electronically in term of Rule 433 and if it is selected for examination. The Rule 434 of Sub-Chapter 1 of Chapter XXI has overriding effect on Section 29 and Section 205 of the Customs Act, 1969.
(d) The admission of submitting discrepant/with error declaration at the time of filing of GD under Rule 433 amounts to mis-declaration attracting Section 32 of the Customs Act, 1969 under Paces Rules notified through Sub- Chapter 1 of Chapter XXI of the Customs Rule, 2001.
(e) That no dispute in regards to valuation/assessment is available in the instant case as assessm ent of the' goods after adjudication was completed under Section 13(a) of Section 25 of the Customs Act, 1969 and Rule 107(a) of the Customs Rules, 2001.
(f) The authorities relied upon are not relevant beside not applicable on the clearance through Pass.
6. Rival parties heard and case records perused. The-following issues are framed for consideration by this Tribunal:-
(i) Whether the weight of impugned goods was mis declared in material particulars?
(ii) Whether the provisions the Customs Act, 1969 would prevail to the extent of apparent inconsistency in the Rules made thereunder?
(iii) Whether production of evidential data of actual physical contemporaneous imports in terms of Section 25 read with para. 78 of Customs General Order 12 of 2002, dated 15.6.2002 further read with sub-rule (at of Rule 107 and Rule 110 of the Customs Rules, 2001, further read with judgments of superior Courts is mandatory on the part of customs administration for enhancement of transaction value?
7. As regards issue No. (i) scrutiny of the data available on record viz. The description available in invoice, declaration made by the appellant in electronic GD and ascertained in Examination Report is deemed essential:-
(a) Declaration in Invoice:-
(i) Interlining Material of bukram one side coated:
(ii) , Hand sewing Needles
(iii) Measurement Tape
(iv) Plastic buttons Small: K-3227 3227 Kgs
(v) Container Nos. GATU-4332300, Tex 7401703
(vi) Total No. Of Pkgs 1492 Cons
(vii) Total Weight 40325 Kgs
(b) Declaration in GD: Quantity
(i) Interlining material bukram one 9255 Kgs side coated (contain: 586 bags of 2 rolls each bag and 4 bags of 1 roll each, total Rolls = 1176
(ii) Hand Sewing Needles (contains 4250000 Kgs 85 ctns 50000 needles in 1 ctn, total quantity: 4250000
(iii) Measurement Tape (100 cens 144000 Units 1440 pcs in 1 ctn), total quantity 144000)
(iv) Plastic Buttons (contains 717 ctns, 3227 Kgs Total weight 3227 kgs) total quantity 3227 Kgs 4262482 Kgs 144000 Units
(c) Ascertained/assessed in Examination report:
(i) Interlining material bukram one 23675 Kgs side coated (contain : 586 bags of 2 rolls each bag and 4 bags of 1 roll each, total Rolls =1176
(ii) Hand Sewing needles (contains 4250000 Kgs)
85 ctns 50000 needles in 1 ctn, total quantity: 4250000
(iii) Measurement Tape (100 ctns 144000 Units 1440 pcs in 1 ctn), total quantity 144000)
(iv) Plastic Buttons (contains 717 ctns, 3227 Kgs Total weight 3227 kgs) total quantity 3227 Kgs 4276902 Kas 144000 Units
8. The declaration in invoice confirms that total quantity of goods imported in 2 containers in weight were 40325 Kgs as against which the declaration transmitted electronically for filing GD with PaCCs by the appellant of the goods quantity in weight and unit were 4262482 Kgs and 144000 Pcs.
However as per examination it was found to be 4276902 Kgs and 144000 units confirming that the weight was in excess by 4236577 Kgs, which is 10506% (percent) of the shipped weight. One fails to understand as to why the officers of the respondent. Collectorate only considered the goods excess weight by only 14420 kgs which is 156% as against the excess weight of 10506%, besides quantity in units declared and found correct, lt is also interesting to note that despite declaration of item No. 2 in Kgs, read it in units for assessment/adjudication as against the Item No. 1, wherein, in the column of quantity the appellant indicated lot number 9255 of the goods inadvertently and was read as Kgs, while ignoring the length of the roll mentioned on the GD, for assessm ent/adjudication. This contradictory consideration proves that the respondent was well aware of the fact that the appellant had committed an apparent inadvertent order while filing GD electronically. The aforesaid assertion is further proved from the fact that the respondent only got 01 container weighed. Had they got the 2nd container weighed, the weight would had been in accordance with the shipped weight. Apparently when such a huge discrepancy was visible from the declaration, it would have been appropriate for the officials of the Collectorate to call for the documents under Rule 437 of Sub-Chapter-I of Chapter-XXI of Customs Rules, 2001, which also forms, a declaration of the appellant in terms of Section 2(kka) of the Customs Act, 1969. The definition of documents not only includes the Goods Declaration but also includes invoices, packing list and bill of lading. The same is reproduced below:- [(KKa) "documents means a goods declaration, application for claim of refund, duty drawback or repayment of duty, import or export general manifest passenger manifest, bill of lading, airway bill, commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to customs, whether or not signed or initiated or otherwise authenticated, and also includes:-
(i) any form of writing on material, data or information recorded transmitted, or stored by means of a tape recorder, computer or any other device, and material subsequently derived from information so recorded, transmitted or stored;
(ii) a label, marking or other form of writing that identifies anything of which it forms part of which it is attached by any means;
(iii) a book, map, plan, graph or drawing and
(iv) a photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment of being reproduced; and)]
9. From the perusal of the above definition, it transpires that invoice, packing list and B/L have also been defined as customs documents therefore these documents should have been called through a view message under Rule 437 of Sub-Chapter-1 of Chapter-XXI of Customs Rules, 2001 and upon receipt of scanned documents if the apparent discrepancy was confirmed, it was to be treated as a procedural lapse, and a bona fide mistake instead of branding it misdeclaration for invoking Section 32 of Customs Act, 1969, which could otherwise be levelled against the appellant on the basis of mis-statement of material particulars missing in this case. As per relevant statute an amendment should have been allowed by the competent officer under Section 205 of the Act, 1969.
As such the Issue No. (i) is answered in the negative.
10. That the apparent discrepancy/error in the subject case could have been cured while invoking provisions of Section 205 of the Customs Act, 1969, wherein a customs officer is competent to allow amendment of any discrepancy upon either pointation of the importer or even on the observation of the customs officer himself prior to allowance of clearance of the consignment. Section 205 stipulates that "except in the cases provided for by Sections 29, 45, 53 and 88, an officer of customs not below the rank of an Assistant Collector of Customs may, in his discretion upon payment of a fee of Rs. 100 authorize any document after it has been presented at the Custom House to be amended". The stance taken by the respondent Collectorate that Rule 434 prohibits amendment after an importer files a GD electrophonically under rule 433 of the Customs Rules, 2001 and it has been selected for examination is without any substance. As rules are made for the promotion of the Act and- aye to be used, applied and interpreted as "stepping stones" and not to be applied and operated as "stumbling blocks". These may also not be employed to harass taxpayers on the basis of technicalities instead of advancing of the purpose for which these are framed as held by the Hon'ble Supreme Court of Pakistan in its judgment reported as PLD 1989 SC 222. Where rules are in-conflict with the parent Act, the former must yield to the later and the rules to the extent of inconsistency would be void as held by the Hon'ble High Court in its judgment reported as 2000 PTD 399. The said opinion is further fortified by the Supreme Court in its reported judgment 1982 SCMR 522 wherein their lordships of Supreme Court settled the ratio by observing that "it is now well-established principle of statute that rules which are merely subordinate legislation cannot override or prevalent on the parent statute and whenever there is inconsistency between the rule and statute the later must prevail". Resultantly as laid sown by the Superior Courts the rule 434 does not override the provision of Section 205 of the Customs Act, 1969. As such the issue No.. (ii) is answered in affirmative.
11. As regards Issue No. (iii), it is observed by this forum that the Customs Authorities have disputed the value of the subject goods as evident from para. 2 of show-cause notice, para. 3 of the Order- in-Original and para. 6 of the commentary of respondent in order-in-appeal and assessment made by the respondent Collectorate of Pass in GD exhibited by the appellant at page 27 of memo, of appeal, in doing so, the respondents are saddled with the responsibility to produce cogent and admissible material to substantiate that the value of the goods has been mis declared and are liable to bring on record the evidential invoices of the goods in question from the country of export and pertaining to the period of import into Pakistan as stipulated in sub-rule (a) of Rule 107 of Customs Rules, 2001 and as per direction contained in para. 78 of C.G.O. 12/2002, dated 15.6.2002 or data of import expressed in rule 110 ibid. Contrary to this the customs authorities relied upon data base/repository of assessm ent, which stood withdrawn by the Federal Board of Revenue vide letter C. No. 1(25) SH/Val/98 on 22.7.2002. The reliance upon the data base instead of evidential invoices or data of assessm ent of contemporaneous import is palpably illegal because such valuation or assessm ent falls under the ambit of sub-rule (iii) of Rule 110 ibid (prohibited methods). The department in the instant case miserably failed in submitting any provision of the Act/Rules or any other notification nullifying the proposition of law and did not rely upon any admissible or convincing material e.g. Evidential invoices on the strength of which allegation of misdeclaration was levelled against the appellant and their goods were assessed, rendering the charge of misdeclaration and assessm ent of value as unsubstantiated. Admittedly the department has failed to discharge the onus of establishing that the prices declared by the appellant of the imported goods are not correct. The same view has been taken by the superior judicial fora in judgments reported as 1986 MLD 1990, PLD 1996 Karachi 68, 2002 PTD 2957, 2004 PTD 38, 2005 PTD (Trib.) 617, 2006 PTD 909, 2008 PTD 1250 and 2008 SCMR 438. As such Issue No. (iii) is answered in affirmative.
12. Ln view of the above findings there is no misdeclaration of weight or value committed by the appellant. The impugned orders are therefore, set aside and the subject appeal is accordingly allowed.