MUHAMMAD ARIF MOTON (MEMBER JUDICIAL-II):--This order will dispose of Customs Appeal No,K- 273 of 2008 filed by the appellant against Order-in-Appeal No,980 of 2008 dated 9-4-2008, passed by the Collector of Customs (Appeals), Karachi.
2. Brief facts of the case are that Messrs H.H. Brothers imported a consignment of (i) Inter Lining Material (Bukrum) and (ii) plastic buttons, paid duty and taxes submitted G.D under section 79(I) of the Customs Act, 1969. On scrutiny of documents under section 80 of the Customs Act, 1969 it transpired that the importers had not declared the correct value of the goods. Resultantly, the goods were re-assessed in the light of 90 days customs computerized data after review and the assessm ent order was passed on 14-2-2008 whereby the appellant was directed to pay additional duty and taxes amounting to Rs, 758,109.78. Para. 2 of the assessment order is reproduced here-in- under:-- "It is very much clear that the importer had availed proper opportunity to contest the assessment/ valuation at the clearance stage and infact in the instant case the assessment/valuation was finally made by taking into account the evidential Goods Declaration (GD) data of determined customs value of similar kind of goods available in terms of Rules 107(a) and 121 of Customs Rules, 2001, read with subsection 13(a) of section 25 of 'the Customs Act, 1969, considering the provisions of subsection (9) read with subsections (6), (11) (13)(a) of section 25 of the Customs Act, 1969 read with Rules 107(a), 111 and 121 of the Customs Rules, 2001, the customs value has been correctly determined in this case.
3. The assessm ent order was challenged before the Collector of Customs (Appeals) under the provisions of section 193 of the Customs Act, 1969, who passed the order dated 9-4-2007, modifying the assessm ent order while observing that:-- "I have gone through the record of the case and also heard arguments of both sides. The case involves issue of valuation. The learned consultant has furnished substantial evidence and cited number of GDs cleared from Port Qasim Collectorate, Appraising and even Model Customs Collectorate wherein value of the identical goods was assessed at lower prices than done in the instant case. Considering all aspects the evidence produced by both the sides the value of buckrum should 'be assessed @ US$.
2.00/kg and plastic buttons @ US$ 0.60/kg to ensure fairness and transparency in the case."
4. The learned counsel appearing for the appellant put forth the following contentions:--
(i) That the order passed is against the facts and law.
(ii) The appellant categorically denies the assertion made by the Deputy Collector of Customs, Group-III MCC in the assessm ent order that he failed to provide further information, rather appellant provide the desired evidence in regards to the previous assessment of "Buckrum and Buttons" and categorically tendered his agitation on his denial for accepting the assessed unit value of plastic buttons @ US$.
0.50/pkg.
(iii) That the submission made in the assessment order by the Deputy Collector of Customs, Group-III, MCC is nothing more than an afterthought and he incorporated the same in order to over shadow and camouflage his illegal act of assessing the appellant's goods under wrong specification and that also in negation of the provision of section 25 of the Customs Act, 1969.
(iv) That it is erroneous on the part of the Deputy Collector of Customs, Group-III MCC to ascertain the value if the appellant goods on the basis assessment made in GD I-HC-437136 and I-HC- 424589 as against evidential invoice, as neither the provision of section 25 of the Customs Act, 1969 empowers him to assess the value of the imported goods with the application of assessed value as against import value expressed in Rule 110 of Chapter IX of Customs Rules, 2001. Resultantly, the assessm ent of appellant consignment by the Deputy Collector of Customs, Group III MCC was arbitrary and unilateral and as such is of no legal effect by virtue of suffering from lack of legal sanction.
(v) That the declared value of the imported goods has to be accepted,, as transaction value under section 25(1) of the Customs Act, 1969 and in case of dispute the value can only be determined under different subsection of section 25 of the Act with the application of those in sequential manner. Determining value of the imported goods contrary to the, provision of section 25 of the Customs Act, 1969 and Rules and Regulation framed thereunder. Hence, the assessment of appellant goods is void ab intio by virtue of suffer from legal infirmity as held by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore in its reported judgment 2005 PTD (Trib.) 617 in the Appeals Nos. 1668/LB and 1669/-2002 filed by the Collector of Customs, Lahore. The learned Members of the Tribunal held that: "After coming into force of the new section 25 of Customs Act, 1969 vide Finance Act, 1999 and as amended by Finance Ordinance, 2000 the value of customs purposes in transaction value---the price actually paid or payable for the goods when sold for export to Pakistan, in terms of subsection
(1) section 25 reservation in acceptance of the declared transaction value, it was obligatory on his part to "inform the importer of reservation in writing and give the importer an opportunity to justify the price difference" in terms of subsection (4) of section 25 of the Customs Act, 1969. On failure of the importer to justify the price difference then transaction value of identical goods (subsection (5) of section 25 (ibid), transaction value, of similar goods (subsection (6) of section 25 ibid), deductive value (subsection (7) of section 25 ibid), computed-value (subsection (8) of section 25 ibid) and fall back method (subsection (9) of section 25 ibid), where to be applied in the same sequential manner, as per subsection (10) of section 25 ibid. These were mandatory provision of law and could not be deviated. Admittedly the appellant did not fulfill the requirement of subsection (4) of section 25 of Customs Act, 1969. Data of Karachi Customs House could not be applied as such except in the- same format as aforesaid as given in subsections (5), (6), (7), (8) and (9) of section 25 ibid. The adjudicating officer has even reproduced C.B.R's instructions issued vide C.No, 1(25) S/VAL/ 98 dated 22-7-2000 wherein it was intimated that valuation data basis was to be discontinued. Besides the appellant failed to justify release of identical goods vide bills of entry referred to be the Deputy Collector of Customs, Group-III, MCC."
(vi) The value of imported goods is to be termed as true transaction value under section 25(1) of the Customs Act, 1969. Nevertheless, since it was not considered correct in the absence of any reason or cause and agitation of the appellant that his value is fair unless proved by the Deputy Collector of Customs, Group-III, MCC through evidential invoice of identical goods in terms of para. 78 of CGO 12/02 dated 15-6-2002 of the period and country of origin/shipment as enumerated in Sub-Rule (a) of Rule 107 of the Customs Rule, 2001. The Deputy Collector of Customs, Group-III MCC of PaCCS despite mandated to provide the evidential invoice in adherence of the provision of law failed to do so and unlawfully determined the appellant consignment value under the prohibited method embodied in Rule 110 of Customs Rules, 2001.
(vii) That any valuation done without any evidence is nullity in the eyes of law as held in the reported judgment by the High Court of Sindh 1986 MLD 190 Messrs Mughal Tobacco Limited v.
Collector of Customs PLD 1996 Karachi 68 Messrs Kamran Industries v. The Collector of Customs, Exports and 4 others, 2008 SCMR 438 Collector of Customs Port Muhammad Bin Qasim v. Zymotic Diagnostic International, Faisalabad and Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357 = 2007 PTD 1858.
(viii) That additionally it is appropriate for appellant to add further that his declared value is deemed to be considered as transaction value within the meaning of section 25 (1) of the Customs Act, 1969 and same cannot be discarded/rejected by the Deputy Collector of Customs, Group-III, MCC of PaCCS unless it is proved without any iota of shadow of doubt, that the appellant has not paid the value of the goods as specified in Rule 113 of Sub-Chapter-III of Sub-Chapter-IX of the Customs Rules, 2001. When no allegation in this regards were leveled at the time of clearance of goods the value of the appellant consignment was ought to be considered as fair within the meaning of transaction value in terms of section 25(1) of the Customs Act, 1969.
(ix) That in the absence of any valid evidence as referred in above, it was mandated upon the Deputy Collector of Customs, Group-III, MCC of PaCCS to accept the declared/transaction value of the consignment by the Deputy Collector of Customs, Group-III, MCC to accept the declared/transaction value - of the consignment. Contrary the value of the appellant consignment was assessed on hypothetical manner and with the application of the value of a product whose quality was far superior than the appellant and while ignoring the evidential import evidences of clearance of identical goods embodied in Section 25(5) of the Customs Act, 1969 from PMBQ, Appraisement and PACCS as detailed below: S# GD No./Date D.V. A.V. Collecorate
1. 3487/090706 0.048/MT 0.065//Kg PMBQ
2. 11683/090106 0.057/Kg 0.0627//Kg PMBQ
3. 11291/031007 0.057/Kg 0.060//Kg APPG
4. 349578/070807 0.056/Kg 1.10//Kg PACCS
5. 281619/290507 0.05093/Kg 1.10//Kg PACCS
6. 274886/220507 0.51/Kg 1.10//Kg PACCS
7. 405948/290907 0.8466/Kg 1.00//Kg PACCS
8. 26491/210907 0.25/Kg 0.57//Kg APPG
9. 31291/080107 0.57/Kg 0.57//Kg APPG
10. 48187/011207 0.50/0.70Kg 0.50/0.70Kg APPG
(x) That the impugned determination/fixation of import value of the appellant's consignment is arbitrary and capricious and is based on erroneous and forced construction of law and fact of the case, the same is bad in law.
(xi) That the Deputy Collector of Customs, Group-III MCC despite commission of illegality also tried to deprive the appellant from challenging the vide of his order under section 193 of the Customs Act, 1969 under which an appeal can be filed against an assessment order passed under section 80 ibid, while incorporating last para in the assessment order directing the appellant that if he desires file a review under section 25-D of the Customs Act, 1969 before the Director General Valuation and PCA because the Deputy Collector assessed the value and has not determined the value and his assessm ent is not an advice/ruling under the provision of section 25-A ibid and as against earlier issued assessm ent orders, wherein direction were made for filing an appeal, under section 193 ibid.
5. The departmental representative supported the orders passed by Deputy Collector of Customs of MCC of PaCCS and Collector of Customs, argued strictly in accordance with the written arguments inter alia:
(i) Not admitted. The order-in-Appeal was passed by the respondent as Collector (Appeal).
(j) Perusal of para 4 of the impugned order clearly indicates that the respondent had examined the clearance effected at MCC-Port Qasim Appraisement and PaCCSS and modified the MCC PaCCS order for assessm ent of Buckrum @ US$.
2.00/Kg and plastic Buttons,@ US$.
0.60/Kg.
(k) Same as for para (ii)
(1) Same as for para (ii)
(m) Same as for para (ii). As regards citation from the judgment (2005 PTD (Trib.) 617), it is stated without prejudice that by virtue of insertion of section 25D in the Customs Act, 1969 by Finance Act, 2007 (Enforced w,e,f, L-7-2007), the power to review the valuation and since the date of inception of the aforesaid section and thereafter such cases shall not be entertained at any court, authority or Tribunal. In the changed situation, the appellant should have approach the appropriate forum.
(n) Same as for paras (ii) and (v)
(o) Without prejudice, it is stated that the position has been changed as the said judgment was passed on 29-2-1984. The legal position is explained in para (v) above.
(p) Same as for para (ii)
(q) Contents of this para are not admitted in view of observation of respondent in para 4 of impugned order
(r) Same as for paras (ii) and (ix)
(s) Contents of this para are not correct. The relevant provisions of the Customs Act 'were cited in the Assessm ent Order even then the appellant filed appeal before the respondent although he was not competent to proceed in the matter. The learned respondent passed an order modifying the Assessm ent order which is otherwise not correct and, not binding on the MCC PaCCS as he is not competent to do so in the presence of legal provisions of Section 25D.
6. Rival parties heard and case records perused and the following issues are framed for consideration by this forum:--
(i) Whether the declared value is the transaction value within the meaning of section 25(1) of the Customs Act, 1969 and the appellant has discharged burden of proof laid upon him under Rule 109 of Customs Rule, 2001?
(ii) Whether the respondent has discharged the burden of proof by following the provisions enumerated in section 25 of the Customs Act, 1969 while determining the assessable value of the subject goods?
(iii) Whether simultaneous invocation of the two methods of valuation incorporated in section 25 of the Customs Act, 1969 in terms of sections 25(6) and 25(7) ibid. By the Deputy Collector of Customs PaCCS is lawful and legal for the determination of assessable value in this case.
(iv) Whether the transaction value declared by the appellant is in conformity with the clause (d) of subsection (5) of section 25 of the Customs Act, 1969?
(v) Whether a review lies under section 25(D) of the Customs Act, 1969 to. Director General Customs Valuation against an assessment order passed by Deputy Collector of Customs under the provision of section 80 of the Customs Act, 1969.
(vi) Whether the subject imports of the appellant have been meted out a differential treatment as compared to other contemporaneous imports involving an element of discrimination in terms of Articles 4 and 25 of the Constitution of Pakistan read with number of judgments of the Superior Judicial fora?
7. That as regards Issue No, (i), it is observed by this Tribunal that when the appellant in the column of (financial information) of the GD stated clearly that the import is without L/C, he discharged the burden of proof laid down upon him under Section 25(1) of the Customs Act, 1969 and under Rule 109 of the Customs Rules, 2001. That for disputing the said value, it was mandated upon the respondent to transmit the message under sub-rule (2) of Rules 109 of Chapter-IX and 437 of Sub- Chapter-III of Chapter-XXI of Custom Rules, 2001 to the appellant for transmitting/scanning additional documents for substantiating his declared value. On the contrary no such exercise was under taken either by the Appraiser, Principal Appraiser and the respondent No, 1 as no A copy of the transmitted view message has been placed on record by the respondent to discharge the burden shifted on to the respondent. No decision was also communicated with grounds as enunciated in sub-rule (3) of Rule 109 confirming that no cause or reason was available with the respondent for disputing the value and the said fact further stood proved from the fact that no evidential invoice as directed in para. 78 of. CGO 12 of 2002 of the period expressed in Rule 107(a) was placed before this Tribunal. The department has failed to discharge the onus of establishing that the price declared by the appellant of the imported goods is not the transaction value within the meaning of section 25(1) of the Customs Act, 1969. The same view has been taken by the Hon'ble Supreme Court of Pakistan and High Court and Customs Appellate Tribunal in judgments reported Customs Appeal No,K-249-2000/13372, Customs Appeal No,K-35/2002, Customs Appeal No,K-1670/2001, 2005 PTD (Trib.) 617, 1668/LB and 1669/LB of 2002, Customs Appeal No,K-1281/05, 1986 MLD 790 Karachi PLD 1996 Karachi 68, 2006 PTD 909, 2002 PTD 2957, 2007 SCMR 1357 = 2007 PTD 1858, 2008 SCMR 438, 1992 SCMR 1083, 2008 PTD 1250 and 2008 SMCR 438". As such Issue No,(i) is answered in the affirmative.
8. As regards Issue No,(ii), the provision of section 25 of the Customs Act, 1969 'are to be followed in sequential manner bearing certain exceptional cases where massive group under invoicing is rampant. However, resort to subsequent methods is not permissible without exhausting the sequence indicated in section 25 as it would annihilate and terminate the spirit and essence of the transaction value which in the first instance has to be established as colorable and tainted. The mere insertion of word "may" or "may not" in place of " are required to" in subsection (15) of section 25 of the Customs Act, 1969 through Finance Ordinance, 2007 does not give unbridled and unfettered authority to customs administrations to play havoc with the provisions of section 25 ibid. Thereby making them in-effective and redundant. Discretion has to be exercised within limits based on reason, rationale and fair play. It is specifically provided by legislature in subsection (10) of the section 25 that subsections (1) (5)(6)(7)(8)(9) define how the customs value of the imported goods is to be determined by the customs. The methods of custom valuation are normally required to be applied in a sequential order except reversal of the order of subsections (7) (8) at the importers, request, if so agreed by the Collector of Customs. This aspect has been examined in a Division Bench in a case of 2008 PTD 1494 Messrs Toyo International Motorcycle v. Federation of Pakistan and 3 others. Their lordships observed:-- "Common factor in sections 25 and 25A is determination of value on the basis of the procedure provided in section 25 in the sequence mentioned therein.---The language of sections 25 and 25A provides for an authority to determine the value of a particular item but the same is not independent of the various provisions of section 25.
A plain reading of provisions of sections 25 and 25A convey that common factor in them is determination of value on the basis of the procedure provided in section 25 in the sequence mentioned therein. Each one of them serves the same purpose if looked from angle of language of law and the principle of interpretation of a fiscal statute." and in paras 24 and 25 further that: "In principle this court has agreed with learned Legal Advisor Mr. Izhar-ul-Haque Sheikh, Advocate, that section 25A is a non obstante clause and it is in supersession to section 25, therefore, all the arguments with regards to adoption of the said procedure as a normal and mandatory requirement stands abated. However, the matter does not end there. There is a very clear direction for the Collector of Customs and Director of Customs Valuation, which is discussed hereinafter.
25. The provisions of section 25A(1) reproduced earlier can be classified in the following manner:--
(i) That it is a non obstante clause, hence it supersedes section 25,
(ii) That the Collector of Customs can prepare such advice at his own motion,
(iii) That the Director of Customs Valuation can prepare the same on request of a person.
(iv) That while preparing such advices, the sequential order provided under section 25 shall be followed.
In the cited judgment the question under consideration was as to how the section 25 of the Customs Act, 1969 is to be applied by the Director General of Valuation for determining the value of the imported and exported goods for issuance of ruling under section 25-A of the Customs Act, 1969.
9. The established principle of interpretation of the tax law is that the plain language of the law is to be applied. A bare perusal of section 25 shows that it is specifically provided in subsection (1) of section 25 that the customs value of the imported goods, subject to the provisions of this section and rules shall be the transaction value i,e, the price actually paid or payable for the goods when sold for export to Pakistan. The detailed guidelines in this behalf are given in subsections (1), (2), (3) and (4). The provisions contained in sections 25(1) to (4) contain primary methods of valuation and in the first instance the primary method of valuation is required to be adopted in each case of the valuation of the imported consignment which is mandatory. The detailed guidelines in this behalf are contained in section 25 and the rules reproduced above. Thus, it is a very important requirement of law that before resorting to the method provided in subsection (5) the customs officials shall make an exercise in accordance with the provisions contained in subsection (1) to (4) of section 25 and if thereafter they find that the customs value of the imported goods cannot be determined under the provisions of subsection (1) they shall resort to the method provided in subsection (5) and not otherwise. It shall be an exercise duly reflecting on the record so that the appellate forums may examine whether the mandatory requirements of law have been carried out or not. We are fortified in our views in this behalf with the provisions contained in sub rule (3) of Rule 109 which provided that "when a final decision is made, the appropriate officer shall communicate to the importer in writing his decision and the grounds therefore. In addition to the specific provisions contained in subsection (10) of section 25 to the effect that the methods of customs valuation are required to be applied in a sequential order, we find that it 'is provided in subsection
(6) that, if the customs value of the imported goods cannot be determined under the provisions of subsection (5) the method provided in subsection (7) shall be resorted to and similar provisions are contained in subsections (7), (8) and (9). For the said reason, it is held that different method of valuation provided in section 25 of the Customs Act, 1969 and Customs Rules, 2001 are required to be applied in a sequential order, and without visible exercise reflected on record no resort can be made to secondary method of valuation. In this case the evidences available of like contemporaneous imports on record and also produced by the appellant have been ignored, no visible exercise brought on record or communicated the appellant and the assessable value arrived at by ignoring the sequential manner, which also confirms that assessment order was passed arbitrarily and unilaterally under prohibited method enunciated in Rule 110 of Customs Rules, 2001. As such the Issue No,(ii) is answered in negative.
10. That as regards Issue No,(iii), Deductive Method 'for determining assessable value in terms of subsection (7) of section 25 advocates that if the customs value of the imported goods cannot be determined under subsection (6) it shall be subject to Rules be determined on the basis of.
Customs Value of the imported goods of similar goods relying upon unit price at which such imported goods are E also sold in aggregate quantity at or about the time of importation of goods being valued to persons who are not related to person from whom they buy such goods subject to certain specified deductions. This Deductive Method is primarily a work back method based on Analytical Basis of Valuation prevalent under defunct/ret. While concept of Normal Price or Notional Value under Brussels Definition of Value (BDV). The market inquiry to be conducted by the customs functionaries is to be restricted/based on the following parameters:--
(i) That goods employed for determination of the customs value should comprise of the impugned imported goods or identical/ similar imported goods which are sold in Pakistan in the same state;
(ii) That the inquiry should be based on the unit price at which impugned imported goods or identical or similar imported goods are sold in the greatest aggregate quantity.
(iii) That the words at orabout the time of importation of goods (iv) being valued denotes 90 days valuation data in terms of section 25(1) read with Rule 107(a) of the Customs Rules, 2002.
Amongst others the above two ingredients in respect of the imported goods to be so valued on relating to the quantity and the other relating to the period during which the impugned imported goods or identical or similar goods are sold in the maximum aggregate quantity have been visibly and patently flouted by the respondent officers. The so called assessment made by respondent No, 1 simultaneously on similar/identical goodstransaction value under subsection (6) of section 25 of the Customs Act, 1969 and Deductive Method of value under section (7) ibid., being distinctive from each other, renders the assessm ent contradictory to the provision of the relevant subsections (6) and (7) of section 25 of the Customs Act, 1969 and the assessment so made in this case is null and void ab intio. As such Issue No, (iii) is answered in the negative.
11. As regard Issue No,(iv) , the declared value of the appellant is to be adjudged in the light of transaction value of identical/similar goods expressed in subsection (5) of section 25 of the Customs Act, 1969 read with Rules 117 and 118 of the Customs Rules, 2001. The copies of the GDs supplied by the appellant and mentioned at para 4 (ix) of the order, the veracity of which has not been challenged by the respondents and the opinion of respondent No, 2 in para 4 of the order dated 9-4-2008 read with the copy of the data provided by the departmental representative supports the position that the lowest declared transaction value of the identical imported goods ranged between US$.
0.561/kg to 0.847/Kg which had been enhanced to US$. 1/Kg to US$ 1.10/kg without producing evidence of physical imports of the (90) days valuation data. Since, there can be more than one transaction values for the identical/ similar goods, it is not necessary to enhance the value of the identical goods on record in terms of clause (d) of subsection (5) of section 25 of the Customs Act, 1969 which is also applicable mutatis mutandis to subsection (6) of the section, 25 ibid. The relevant extract is as under:-
(d) If, in applying the provisions of this subsection, there are two or more transaction values of identical goods that meet all the requirements of this subsection and clauses (b),(d),(e) and (f) of subsection (13), the customs value of the imported goods shall be the lowest such transaction value, adjusted as necessary in accordance with clauses (b) and (c)
12. Moreover the respondent has not been able to bring on record any cogent evidence or documents in terms of (90) days valuation dat a which can prove the declared transaction value of the subject goods tainted or colorable. The lower transaction value for the subject goods in absence of such evidence particularly when similar goods have been released by Custom House in relevant period does not necessitate the enhancement of the value to the level of the highest of transaction value for similar/identical goods on record. As such Issue No, (iv) is answered in the affirmative.
13. As regards issue No,(v), the respondent in their comments has taken the stance that the appellant should approach the Director General (Valuation) for review of the assessed value in terms of section 25-D of the Act for revision of the value is not tenable in this case. The subject assessm ent of the valuewas admittedly made by the respondent No, 1 under the provisions of section 80 of the Customs Act, 1969, against which an appeal lies under sections 1193 and 194A of the Customs Act, 1969. Cases where values are fixed through issuance of valuation rulings in terms of section 25-A of the Customs Act, 1969, by the Collector of Customs or Director of Customs Valuation can be challenged through a review under the provisions of section 25D of the Customs Act, 1969. For ease of reference, sections 25-A, 25-D and 198(1) are reproduced below:-- [Section 25A "Power to determine the customs value"---(1) Notwithstanding the provisions contained in section 25, the Collector of Customs on his own motion, or the Director of Customs Valuation (on his own motion or) on a reference made to him by any person [or an officer of Customs), may determine the customs value of -any goods or category of goods imported into or exported out of Pakistan, after following the Methods laid down in section 25, whichever is applicable.
(2). The Customs value determined under subsection (1) shall be the applicable customs value for assessm ent of the relevant imported or exported goods.
(3) In case of any conflict in the customs value determined under subsection (1) the Director General of Customs Valuation shall determine the applicable customs value] (Section 25-D)
"Review of the value determined"----Where the customs value has been determined by the Collector of Customs or Director of Valuation or any other authority competent to do so, a review application shall lie before Director General of Valuation and any proceeding pending before any court, authority or Tribunal shall forthwith abate] Section 193(1)
Appeals to Collector (Appeals)---(1) Any person [other than] an officer of Customs aggrieved by any decision or order passed under [sections 79, 80 and 179 of this Act by an officer of Customs not below the rank of an Assistant Collector] [***] may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such, decision or order.
14. The Lahore High Court vide its reported judgment 2008 PTD 1594 titled Sun Traders v. Deputy Collector of Customs, Faisalabad and 4 others held in un-ambiguous terms that "law required that when a valuation was determined by the Collector or Director of Customs-Valuation etc., a review petition lies before the Director General under section 25-D of Customs Act, 1969 and an application lies to the Director General under S.25-A(3) of the Customs Act, 1969 in case of conflict in the customs valuation determined under subsection (1) of section 25-A of the Customs Act, 1969." This view has been confirmed from a different angle by the Hon'ble High Court of Sindh reported as 2010 PTD 1293 while deciding the Special Customs Reference Application, 35 of 2009 whereby the Customs Appellate Tribunal dismissed the appeal of the appellant which was filed in terms of section 194A of the Customs Act, 1969 against order of the Collector (Appeals) passed under section 193 ibid, while holding that:- "The Tribunal seems to have mislead itself in considering that the impugned order before it was that of valuation ruling which was not the case rather it was an order of adjudication passed under section 193-A of the Customs Act, against which appeal only lies to the Tribunal. The impugned order of the Tribunal is thus not in accordance with law.
In the circumstances, we set aside the impugned order and remand the matter to the Tribunal for fresh decision of the appeal".
As such Issue No, (v) is answered in negative.
14-A. As regards Issue No, (vi), the consultant of the appellant referred to Goods Declaration in para 4 (ix) supra, where identical/ similar goods were cleared by the respondent through the application of clause (d) of subsections (5) and (6) of section 25 of the Customs Act, 1969 and Rules 117 and 118 of Customs Rules 2001 on the basis of data of import maintained under Rule 110 of the period given in Rule 107(a) ibid without any hindrance and without recourse of Deductive Method of Valuation under subsection (7) of section 25 of the Customs Act, 1969. It is a well-settled principle of law that "there exists no power to target incidence of tax in such a way that similarly placed person be dealt not only this similarly, but discriminatingly" as held by Hon'ble Apex Court in another reported judgment 2002 SCMR 312 and in reported judgment 2005 SCMR 492 observed that "A facility allowed to someone and denied to other is discrimination" and further held in the reported judgment 2010 SCMR 431 that:-- "doctrine of equality, as contained in Art. 25 of the Constitution, enshrine golden rules of Islam and states that every citizen, no matter how high so ever, must be accorded equal treatment with similarly situated persons---State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class---In fact all legislations involve some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not---What however, is prohibited under principle of reasonable classification, is legislation favoring some within a class and unduly burdening others---Basic rule for exercise of such discretion and reasonable classification is that all persons placed in similar circumstances must be treated alike and reasonable classification must be based on reasonable grounds in given set of circumstances but the same in any case must not offend spirit of Art. 25 the Constitution."
15. The treatment given to the appellant against the principles enshrined in Article 25 of the Constitution of Pakistan violates the principles of law settled by the Superior Courts in other judgment reported as 1990 SCMR 1059, 2002 SCMR 312, 2002 PTD 976, 2007 PTD 361 and 2009 PTD 1507. As such Issue No,(vi) is answered in affirmative.
16. In view of the foregoing the assessment order is based upon proceedings which are infested with patent illegalities and as such is held to be null and void. The Assessment order as well as impugned order of the Collector (Appeals) based on such proceedings are also ab initio null and void and are therefore, set aside. The subject appeal is accordingly allowed.