' MUHAMMAD ARIF MOTON (MEMBER JUDICIAL-M.-By this common order, we intend to dispose of above captioned (100) Customs Appeals having similar facts and common questions of law filed by the appellants through their Advocates and Consultant against Order-in-Appeals Nos. 3390 to 3481 of 2010, dated 15-4-2010, passed by the Collector of Customs (Appeals), Karachi.
2. Brief facts of the case as reported are that the appellants imported various consignments of G.P.
Steel Sheet of secondary quality classifiable under H.S. Code 7210 and cleared the same from MCC PaCCS on a lower value without application of valuation ruling vide No,Misc/32/2007-IV-A dated 18-12-2007 issued in terms of section 25-A of the Customs Act, 1969, subsequently reviewed by the competent authority under section 25-D of the Act vide ruling dated 30-1-2008 and further reviewed vide ruling dated 29-4-2008 and vide ruling dated 18-8-2008. Due to non-applicability of the above-mentioned valuation ruling, an amount of Rs,147.891 million was found to have been short-levied in these cases. The appellants were accordingly show caused for recovery of the said amount under the relevant provisions of law and the adjudicating officers held that the aforesaid amount was recoverable from the appellants. The adjudicating officers passed identical orders in all these cases. The operative, part of one such case (O.N.O No,01/2010 to 27/2010 (Manual) dated 12-1-2010) is reproduced as under:-- "I have gone through the record of the case and arguments advanced by both the sides. It is an admitted fact that neither the importer at the time of self - assessment in terms of section 79(1)(b) of the Customs Act, 1969, nor the customs authorities/PaCCS system at the time of assessment under section 80 of the Customs Act, 1969, have applied the customs value determined under sections 25A(1) of the Act, which is binding for assessment in terms of section 25A (2) of the Customs Act, 1969. It is clearly a case where duty/taxes were chargeable at the customs values determined under section 25A(l) of the Act, hence, it is a case where short payment/assessment has been made, hence, duty and taxes are recoverable under section 32(3) and 32(3A) of the Act.
The respondent importers have no plausible rebuttal to the aforesaid legal position. The respondent importers are only taking refuge behind the honorable High Courts Judgments whereas not in a single Judgment cited by the learned counsel the honorable High Court has passed any orders to make the provision of section 25A of the Act, as redundant. The law is very land and clear that in terms of section 25A(1) of the Act, in order to make the assessment uniform and transparent and to combat the group under-invoicing the Director (Valuation) is empowered to determine the customs value of any class of goods and in terms of section 25A(2) of the Act. It is mandatory for the Government to collect the revenue as per determined customs value.. In the presence of section 25A(2) and amended Provision section 25(10) of the Customs Act, 1969. The application of valuation methods in sequential order are no more mandatory. The arguments advanced by the learned counsel are devoid of any merits and against the provision of law referred to above, hence, no force of law. The importers are, therefore directed to make payment of short levied amount, as stated below, within 10 days hereof along with surcharge in terms of section 83(2) of the Act, failing which the short levied amount will be recovered in terms of section 202 of the Customs Act, 1969."
3. The orders were challenged before Collector of Customs (Appeals), Karachi, who also rejected the appeals. The appellant to have now challenged the above order by way of filing these appeals on the following grounds incorporated in the memo of appeals:--
(i) That the learned Collector of Appeals erred to validity the show-cause notice issued by post/Audit Department without critically examining that power under section 32(A) is yet to be transferred to post/Audit department still same is employed by post/Audit department though power under this provision still rest with valuation department, hence show-cause notice issued by post/Audit department is without lawful authority and without jurisdiction.
(ii) That section 25-A deleted from Customs Act, 1969 in Finance Bill, 2007. It remains part of the statute between 1-7-2006 to 30-6-2007 only. Thus show-cause notice as well as order issued under section 25A is nullity as violative of the decision of honorable Supreme Court that provisions eliminated from the statute will be treated as if it never exist - learned Collector Appeals with full knowledge of this factum has still authenticated the erroneous order in original.
(iii) That extension of time by F.B.R. After the expiry of limitation and dead line in violation of the decision of honorable Supreme Court and honorable FTO is accorded validity by the learned Collector Appeals though it was categorically pinpointed that both decisions are constitutionally binding on him.
(iv) That learned Collector Appeals deliberately left un-adjudicated the all-important legal point held by honorable Supreme Court and Tribunal that even subsequent D.B cannot deviate from the point of law decided by earlier Division Bench has categorically violated the decision of above quoted authorities without realizing that he is much junior authority.
(v) That learned Collector was specifically remained of the decision of superior judiciary both in Pak and India to 'adjudicate all the' points raised by appellant still he prefer to left un-adjudicated vital legal issues.
(vi) That several decisions of higher judiciary specifically on the point that once transaction finalized and goods left the premises of customs become a final and closed transaction need no future intervention are deviated from on ridiculous contention that several provisions exist in Customs Act for such action. Without least consideration that honorable High Court has decided this issue in the light of all the provisions of Customs Act.
(vii) That learned Collector of Appeal committed, a serious error of law by applying valuation rulings of 2008 to completed (sic) under section 25-A transactions completed in 2007 when section 25-A was deleted from Customs Act.
(viii)That learned Collector Appeals failed to consider the simple legal issue that how valuation ruling prepared subsequently can be applied to transactions already completed way back almost a year back.
(ix) That Collector of Appeals is not justified to validate a decision opposed to basic principle of law that valuation rating framed subsequently in future cannot be applied to already completed and cleared transactions.
(x) That learned Collector Appeals failed to realize and appreciate that how a transaction can be subjected to re-proceedings when payment of duties was strictly made at officially prevailing rate the date of transaction.
(xi) That learned Collector Appeals upheld the decision of order in original without realizing that show-cause notice issued in clear violation of the principle laid down by honorable Supreme Court in a case reported as 2001 (sic) 638 that when section 38(2) involved, show-cause notice categorically mentioned the factum of Collaboration in the show-cause notice alternatively it will be treated merely or "outright demand notice without legal effect".
(xii) That the Collector Appeals failed to consider that when transaction attained finality, vested right created in favour of the appellant which cannot be taken away even by amendment in law or introduction of fresh law.
(xiii) That learned Collector Appeals so lightly set aside appellant's contention that no show-cause notice issued by just stating that show-cause notices issued without confronting and providing opportunity and providing evidence as to when show cause was issued and served and what was the mode of service.
(xiv) That Collector Appeals reminded of the violation of Article 25A of the Constitution as to why notice not issued to all the transactions since 1957 still left un-adjudicated become time barred and when proceedings initiated against the present time barred matters.
(xv)That while justifying the present order completed after the expiry of limitation of times, the same Collector Appeal in Appeal No,ST.11 1217/07 Audit dated 20-7-2009 Messrs Siddiq Traders Karachi held proceedings void and nullity as completed after limitation.
4. The departmental representative submitted arguments, stating inter alia as under:-
(i) That in the light of submissions made above the contents of para. (i) of grounds of the appeal are incorrect, hence, denied.
(ii) That as stated above the present section 25C of the Customs Act, 1969, was numbered as "25A" till June, 2006. However, through Finance Bill, 2006, the "Powers to determine the customs value" were introduced in the law vide section 25A of the Customs Act, 1969, whereby the powers to determine the customs value were entrusted to 'the Director of Customs Valuation and to the Collector of Customs. Therefore, the learned counsel of the appellant's plea that the provision of Section 25A of the Customs Act, 1969, is never existed is totally incorrect and showing signs of ignorance of law.
(iii) That as stated above it is not a case of adjudication for confiscation of goods or for imposition of penalty, therefore, the provisions of section 179 of the Customs Act, 1969, or the limitation given therein are not applicable on this simple recovery case of loss revenue.
(iv) That in the light of submissions made above the contents of para. (iv) of grounds of appeal are incorrect, hence, denied.
(v) That the provisions of law as stated above are very much clear, therefore, the citations quoted by the appellant are not applicable on the subject case/appeal.
(vi) That in the presence of Sections 32, 32A & 80 of the Customs Act, 1969, the contents of para. (vi) of grounds of appeal are incorrect, hence, denied.
(vii) That the contents of para. (vii) of grounds of appeal are incorrect, hence, denied. It is respectfully submitted that the Goods Declaration (G. D.) mentioned in the statement enclosed with the show-cause notice (pages 47 to 49 of the appeal) confirming that all transactions are related to the year 2008 instead of 2007. It is also pertinent to mention here that the applicable Valuation Ruling is of dated 18-12-2007.
(viii)That the contents of para. (viii) of grounds of appeal are incorrect, hence, denied.
(ix) That the contents of para. (ix) of grounds of appeal are incorrect, hence, denied.
(x) That the contents of para. (x) of grounds of appeal are incorrect, hence, denied.
(xi) That the contents of para. (xi) of grounds of appeal are incorrect, hence, denied. Without prejudice to above it is, however, respectfully submitted that the show-cause notice was not issued under section 38(2) of the Customs Act, 1969.
(xii) That in the presence of sections 32, 32A and 80 of the Customs Act, 1969, the contents of para.
(xii) of grounds of appeal are incorrect, hence, denied.
(xiii) That the contents of para (xiii) of grounds of appeal are incorrect, hence, denied. It is, however, respectfully submitted that in paras. No,(2) and (3) of grounds of appeal (page 33 of the subject appeal), submitted before the Collector of Customs (Appeals), the appellant has accepted the issuance/service of show-cause notice.
(xiv) That in the light of submissions made above the contents of para. (xiv) of grounds of appeal are incorrect, hence, denied.
(xv) That in the light of submissions made above the contents of para. (xv) of grounds of appeal are incorrect, hence, denied.
(xvi)That the contents of para. (xvi) require no comments. (xvii) Lastly he prayed to dismiss the appeal.
5. At the time of hearing the learned advocate for the appellant Haji Yousuf argued as under:--
(i) That the provisions of section 32(3A) of the Customs Act, 1969 are not applicable to these cases.
(ii) That section 32(3A) of the Customs Act, 1969 is purely penal in nature. If the parent section 32 ibid. Regarding miss-declaration is not applicable then how section 32A ibid. Can be applied.
(iii) That these are past and closed transactions where assessment has been completed in terms of section 80 of the Customs Act, 1969 and where goods were examined by the shed staff before made out of charge.
(iv) That section 25(A) of the Customs Act, 1969 was deleted from Customs Act, 1969 through Finance Act, 2007-08. It remained on the statute book from 1-7-2006 to 30-6-2007. As such a show-cause notice issued under section 25(A) of the Customs Act, 1969 the proceedings based upon it are ab initio null and void.
(v) That period of limitation cannot be extended by Federal Board of Revenue once the period of limitation expires.
(vi) That the forums below have not issued speaking orders and have not addressed all the points and issues agitated before them.
(vii) That the three different valuation rulings issued in these cases are unlawful being issued in violation of the provisions of section 25 of the Customs Act, 1969 without exhausting primary and secondary methods in a sequential manner.
6. The respondents argued that the appeals are not maintainable in terms of section 195-B since the adjudged amounts have not been deposited into the Government Treasury before filing of the subject appeals. Secondly section 25A of the Customs Act, 1969 was very much in existence when the subject proceedings were undertaken and demands were issued. Thirdly the adjudication order is not time barred since no confiscation of goods or imposition of penalty in terms of section 179 of the Customs Act was not involved. The respondents also pointed out that limitation period under section 32(2) and (3) whatever needs to be exhausted before re-opening of case under section 195 of the Customs Act, 1969. Lastly they vehemently supported the impugned orders for the reasons stated therein and requested for dismissal of the subject appeals.
7. Rival submissions heard. Case record examined. The issues raised by the appellants' advocate in para. 5 supra in respect of invoking of provisions of sections 32(3A), 25A of the Customs Act limitation period etc., hit at the very basis of adjudication and appellate orders and need serious scrutiny and consideration by the officer of original jurisdiction by going through the case records as well as rival submissions put forth by the departmental officer before this forum. As such the impugned orders passed by the forums below are set aside and these cases are, therefore, remanded to the adjudicating authority for de novo consideration on merits after giving a patient hearing to the appellants and after a careful study of the arguments put forth by the appellants and the departmental officers and documents on record through a well speaking and well- reasoned order within three months.