' MIAN MUHAMMAD HANIF TAHIR (MEMBER (JUDICIAL)).---This judgment shall dispose of' the above captioned 4 appeals having identical questions of law and facts represented by the same counsel for the appellant and defended by the same Departmental Representative. These appeals have been filed against Order-in-Appeals Nos.42-45/2010 dated 6-4-2010 through which the learned Collector (Appeals), Multan had dismissed the appeals filed against Order-in-Original Nos.162-165 of 2009 dated 14-11-2009.
2. Briefly stated the facts of the case, are that consignments of Textile Coated Fabrics were imported by the appellants and cleared at Multan Dry port Trust, Multan which were reportedly grossly under invoiced. Bill of Entry No,00186 dated 20-1-2001 was, therefore, checked and it revealed that value of goods declared on the bill of entry was US $ 1.6 per kg, but the correct value was US $ 3.00 per kg on which it was being assessed at Customs, House, Karachi. Show-cause notices were served upon the appellants. The adjudication proceedings culminated into passing of Order-in-Original Nos.585-588 of 2001 dated 25-4-2001, through which the appellants were directed to pay short paid duties and taxes.
3. Being aggrieved, the appellant filed an appeal before the Tribunal, which vide combined judgment (in all the above 4 cases) dated 22-5-2007 observed that the case had not been properly adjudicated upon, therefore, remanded the cases back for de novo consideration. The remand proceedings culminated into passing of Order-in-Original Nos.162-165 of 2009 dated 14- 10-2009.
4. Being aggrieved, the appellants filed appeals before the learned Collector (Appeals), Multan who vide impugned Order-in-Appeal Nos.42-45 of 2010 dated 6-4-2010 dismissed the same and upheld the order-in-original. The appellants have assailed the said judgment through these appeals.
5. The main contentions of the learned counsel for the appellant as per memo of appeal are:--
(a) That the appellant imported the consignment of Textile Coated Fabrics falling under PCT heading 5907.0019 From Korea and declared unit value at US$ 1.60 per kg. The consignment was assessed by the Customs Authorities on the same value. There was no miss-declaration either of weight or of quality, quantity or value.
(b) That the prosecution department made out the case of under invoicing on the basis of irrelevant evidence collected from Customs House Karachi according to which the goods imported under PCT heading 5907.0090 had been assessed at US $ 3 per kg. The goods imported by the appellant admittedly fell under PCT heading 5907.0019 which is quite different from what has been produced on record as an evidence. The value of the goods falling under PCT heading 5907.0090 and the goods falling under PCT heading 5907.0019 of course possess different values.
(c) That the goods imported by the appellant were got tested by the Customs Authorities from two different laboratories and both the laboratories not only confirm the description of the goods but also mentioned its PCT heading as 5907.0019 which is in confirmation with the declaration of the appellant on the bill of-entry.
(d) That the explanatory notes to the Harmonized Committee Description and Coding System also given a clear 'difference in the goods falling under PCT heading 5907.0090 and 5907.0019. So, the evidence being relied upon by the prosecution, are neither of identical in nature nor similar goods but they have different uses and different nomenclature.
(e) That the learned Additional Collector of Customs, Multan in his letter to the Collector confirmed the classification of the goods falling under. PCT heading 5907.0019. It is also confirmed from his letter that the identical goods of PCT heading 5907.0019 were cleared at Lahore Dry Port vide Cash No,324 dated 11-11-2000 on declared value of US $ 1.45 per kg. This evidence of the same PCT heading, as that of appellant, could only be made the evidence for assessment of value rather to assess the value on the basis of value of the goods of different PCT heading.
(f) That the prosecution submitted GD along with a commercial invoice dated 12-10-2000 as an evidential data whereas from the perusal of GD it reveals that the goods imported through the said GD were Suede Fabric in rolls. Hence the said GD is of totally different goods from the goods imported by the appellant because the appellant imported Textile Quoted Fabric. The examiner had also confirmed the' same falling under PCT heading 5901.0090. The other GD submitted by the prosecution as an evidence also relates to Synthetic Textile Material falling under PCT heading 5903.9000, which is also a different thing.
6. On the other hand, the, learned Departmental Representative defended the impugned orders and contended that as per test reports the goods were Textile Fabric Coated and its exact nomenclature was "imitation suede". Accordingly value of coated fabric suede was taken into account for comparison. He further contended that there is no dispute of PCT heading rather the dispute is regarding value of goods, which has been made in accordance with law.
7. I have heard the learned counsel appearing on behalf of the appellant as well as the learned Departmental Representative and pursued the record carefully. The appeals are tenable. The appellant filed GD and the customs department drew samples from the consignment and sent the same to the Laboratory for carrying out the test to verify the declaration made by the importer on the GD. The department got two reports i,e, from Customs Laboratory Dry Port Lahore dated 27-1- 2001 and from the laboratory of Customs House, Karachi dated 29-1-201)1. Both the reports confirmed the declaration as made by the appellant. It was mentioned in both the reports that the goods fell under the PCT heading 5907.0019, which is exactly inconformity with the PCT heading declared on the GD filed by the appellant. This fact is not denied by the respondent, meaning thereby that there was no miss-declaration as made by the appellant in the import documents. As per law laid down by the superior courts that the case for want of valuation cannot be reopened unless the declaration with regard to physical description of goods, quantity, weight and classification is found incorrect. The judgment of the Hon'ble Lahore High Court in the case of Messrs A.S. International v. Collector of Customs Lahore passed in Writ Petition No,8400 of 2008 and the judgments reported as 2009 PTD 281 and 2009 PTD 467 as referred to by the learned counsel for the appellant are fully applicable in this regard.
8. The officers of the lower for a, during remand proceedings did not consider the issue and directions given by the Tribunal. They have held that there is no bar on the department to issue notice for show cause prior to an ordinary notice. This observation of the officers below did not have any legal force as the superior courts have repeatedly held in number of cases that the acts required to be done in a specific manner should be done in the same manner or should not be done at all. It has been held by the Hon'ble Sindh High Court in a case Messrs Nishat Mills Limited v.
Collectorate of Customs Karachi reported as 2006 PTD 2726 that "statute creating an obligation also specifying manner of its performance could not be enforced in a manner other than what was provided therein." This judgment is squarely applicable in this case.
9. The appellant filed the GD before the Assessing Officer by declaring PCT heading as 5907.0019 and the same was confirmed by the two laboratories of the Customs Department. The respondent/department has commercial invoice along with the supporting documents in which the value of the goods imported was mentioned and the customs department by accepting the declared value of the appellant @ US $1.6. Per Kg on the basis of computer data available to the Assessing Officer and according to that the consignment under same PCT heading 5907.0019 was declared at US $ 1.45 per Kg from Mughalpura Dry port, Lahore. The department even otherwise had made no effort to get check the veracity of the documents presented by the importer from the concerned foreign suppliers so in the absence of any allegation of miss declaration and especially in the presence of the computer data for the clearance of same goods at US $ 1.45 per Kg, the value declared by the appellant is acceptable as being the transactional value under section 25(1) of the Customs Act, 1969.
10. The arguments of the learned DR that difference in PCT heading makes to matter is not tenable in the eyes of law as the PCT code has been allotted to the things/articles according to the nomenclature and specification of the goods so it is quite obvious that the PCT heading 5907.0019 is quite different from the goods under PCT heading 5907.0090 and the goods covered under PCT heading 5903.9000. This argument of the learned DR carries no weight.
11. In view of what has been discussed above, all the four appeals are accepted and the impugned orders-in-original as well as order-in-appeal are set aside.