IRFAN SAADAT KHAN, J. - By this Special Customs Reference Application (R.A ), filed against the order of the learned Customs, Excise & Sales Tax Appellate Tribunal (STAT) dated 05.06.2009 in Custom Appeal No. K- 57 of 2008, the following questions said to be arising from that order, have been proposed for the opinion of this Court: -
(I) Whether the Honourable Tribunal has failed to correctly appreciate the principle laid down by the Supreme Court of Pakistan in the case of Ms. Nazir Ahmed v. Pakistan (PLD 1970 SC 453) and in the case of M/s. Radaka Corporation v Collector of Customs (1989 SCMR p. 353), where it was held that where a departmental practice has followed a course in the implementation of the relevant rule whether right or wrong, will be extremely unfair to make a departure from it after a lapse of many years and thereby disturb rights that have been settled by a long and consistent practice ?
(II) Whether in the facts and circumstances of the case the Honourable Tribunal has erred in law by not taking into consideration this vital aspect of the case that the application of the changed classification to the applicant's goods with retrospective effect was primarily wrong as the Central Board of Revenue itself had notified vide various CGOs that any change in the existing classification practice shall not be applied retrospectively?
(III) Whether in the facts and circumstances of the case the learned respondent erred in law by not taking into consideration this vital aspect of the case that in terms of Section 65 of the Sales Tax Act, 1990 the tax hot levied or short levied as a result of inadvertent practice, shall not be required to be paid by the applicant for the period prior to the discovery of such inadvertent practice?
(IV) Whether in the facts and circumstances of the case the demand of short recovery in terms of Show-Cause Notice on the basis of which the impugned orders were passed by the respondents was not illegal, void ab initio and without lawful authority as the issue for the determination of classification of the goods in question which as yet has not been decided by the pet classification committee and still pending for proper ruling/decision?
(V) Whether in the facts and circumstances of the case the Order-in-Original passed by the respondent # 1 was not barred by time of limitation in terms of Section 179(3) of the Customs Act, 1969?
(VI) Whether in the facts and circumstances of the case the impugned orders passed by the respondents were not out of the purview of the Show-Cause Notice and also in violation to ruling of Supreme Court of Pakistan in case of Collector v. Ms. Mahm Din (SGMR P. 1840) or not?
(VII) Whether a vested right created by established practice of many years can be withdrawn abruptly deviating from established practice while ignoring the guiding principles as laid down vide CGO 21/73 & CGO 21/89 and ruling of Supreme Court of Pakistan given in identical cases of Ms. Nazir Ahmed, PLD 1970 SC.453, Ms. Manzoor Brothers, 1995 SCMR p. 516 & Ms. Radaka Corporation, 1989 SCMR p. 353 is lawful or not?
(VIII) W hether any impugned order on the dispute of contents in subsequent to release/out of charge of the consignments from the customs premises while ignoring the bar under Section 29/ruling of Superior Courts given in identical cases of 1. Collector v. Ms. S.M. Ahmad & Company (1999 SCMR P. 138),
2. Ms. Shahnawaz Enterprises v. Collector (PTD 2005 p. 1172),
3. Collector v. Ms. New Electronics (PLD 1994 SC 363),
4. Ms. Muzzamal Brothers v. CBR (PLD 1997 Lah. 36),
5. Ms. H.
Sheikh Nooruddin & Sons Ltd. v. CBR (PLD 1989 Khi. 601),
6. Ms. Happy Manufacturing (PTD 2003 Tri.
293),
7. Ms. Prime Ent. v. Collector (K- 678/2001), can be treated lawful or not?
(IX) Whether the respondents impugned order/notice passed in violation to spirit of Section 179 of the Customs Act, 1969 cannot be treated held as without lawful authority as held by the Superior Courts given in cases or not? > Ms. Super Asia Muhammad Din Sons (PTCL2008CL. 1), > Ms. Tariq Irshad v. The State (PLD 2006 Khi. 25), > Ms. Atta Muhammad Qureshi v. Settlement Commissioner (PLD 11971 SC.61),
(X) Whether the impugned order which has been passed after the lapse of 3 months from the date of hearing is in violation to ruling of Superior Courts given in identical case of Ms. Crescent Sugar Mills (NLR 1982 Tax 1) relied on Supreme Court cases Ms. Mazari & Mazari Ltd., v. Pakistan (1971 SCMR P. 681, 1981 SCMR P. 101 & PLD 1958 SC 104 can be treated/called a proper order or not?
(XI) Whether the respondent as a Member Technical is appropriate officer to decide the case under Section 194-C of the Customs Act, 1969 or not?
(XII) Whether the impugned order of the respondents is also stereo type/non-speaking and devoid of reason same is not substantial in law as laid down by the Supreme Court given in identical cases or not?
Adamjee Jute Mills Ltd. v. The Province of East Pakistan (PLD 1959 SC 2721), Cowanea Mohan Sikdar v. Controller Imports & Exports (PLD 1970 SC 158), Mollah Ejahar Ali v. Government of East Pakistan (PLD 1970 SC 173)
Ms, Muhammad Ibrahim Khan v. Ministry of Labour {1984 SCMR P.1014)
(XIII) W hether in the facts and circumstances of the case the Order passed by the learned Tribunal is maintainable in law?
2. Learned counsel for the applicant Mr. Ziaul Hasan, Advocate, submitted that the subject consignments were imported between August 2005 and January 2006 and were assessed and cleared under PCT heading 2823.0020. However, during the post importation scrutiny it transpired that the correct classification in respect of the subject consignments is PCT heading 3206.1100. He contended that PCT heading could not be applied retrospectively. Moreover, according to the learned counsel, the Customs authorities have cleared the same goods of other importers under the same PCT heading 2823.0020. Hence, in his view, the action of the Customs authorities is not only against the past practice but also a discrimination against the applicant. According to the learned counsel, the applicant previously also imported the Same goods but no adverse inference was drawn by the Customs authorities. Finally he submitted that a question of law cannot be determined by a Member Technical. The learned counsel relied on the following cases:-
(1) PTCL 2004 CL 494,
(2) 1999 SCMR 138, and
(3) 2009 PTD 266.
3. On the other hand, Mr. Raja Muhammad Iqbal, learned counsel for the Department, submitted that the question whether the subject consignments fall under which PCT heading is not a question of law but a question of fact and the learned Member Technical was fully competent to decide the same. He relied on the cases of PTCL 2003 CL 132 and 2005 PTD 2446. He submitted that the World Customs Organization Brussels as amended from time to time should be considered authentic forum of interpretation. He submits that no question of law arises out of the order of the Tribunal and, therefore, this RA is not competent. Finally he submitted that this application is misconceived and is liable to be dismissed in limine.
4. We have heard the learned counsel and have gone through the record of the case, as well as the case-law cited before us.
5. Briefly stated the facts of the case are that the applicant company had imported five consignments of "Titanium Dioxide" under PCT heading 2823.0020 during the period between August 2005 and January 2006 chargeable to duty at the rate of 5%, free of sales tax and income tax at the rate of 1% and the same were assessed and cleared accordingly. On post importation audit it was found that the consignments were classifiable under PCT heading 3206.1100 and were chargeable to duty at the rate of 5%, sales tax at the rate of 15% and income tax at the rate of 6% and additional sales tax at the rate of 10%. Accordingly, a Show-Cause Notice dated 20.7.2006 was issued by the Customs authorities for short recovery of Rs. 26,98,817. The applicant replied to the Show-Cause Notice and denied the allegations made therein. The Deputy Collector, Collectorate of Customs (Appraisement), vide his Order-in-Original dated