DR. ZAFAR AHMED KHAN SHERWANI (MEMBER (JUDICIAL-I)).---Heard the learned Consultant for the appellant and the departmental representative for the respondents.
2. This appeal under section 194-A of the Customs Act, 1969 (The Act) is directed against the Order- in-Appeal No. 723 of 2007 dated 20-10-2007 passed by Collector (Appeals) whereby an Order-in- Original No.128 of 2007 dated 21-04-2007 was confirmed dismissing the appeal.
3. Brief facts leading to this appeal are that the appellant imported a consignment comprising Electrolytic Tin Plate (ETP) secondary quality (3.21 MT) and Tin Free Steel Sheets (TFS) (78.40 MT) vide G.D. IGM No.30/2007 dated 9-1-2007, Index No. 27 under PCT heading 2710.1200 chargeable to 20% customs duty and 7210.5000 chargeable to 10% customs duty respectively. The G. D. Was processed under first appraisement system for examination during which the consignment was found comprising Tin Mills Black Plates (TMBP) classifiable under PCT heading 7209.1520 chargeable to customs duty @ 20% contrary to the A declaration causing loss of revenue amounting to Rs.91,650 and, therefore, the appellant was served with a show-cause notice under section 32(1) and (2) of the Act punishable under clause (14) of section 156(1) ibid. After service of the show-cause notice and necessary proceedings the Order-in-Original was passed by the Adjudicating Authority confiscating the goods with the option of redemption subject to payment of fine @ 50% of the value of the goods in term of section 181 of the Act read with S.R.O.255(I)/2007 dated 17-7-2007. Against this the appeal was filed which met the same fate, hence this appeal.
4 The learned consultant for the appellant contended that the Goods Declaration was filed by the appellant under first appraisement system making declaration exactly what information he was having in terms of agreement between it and the exporter and the invoice in respect of goods. However, on account of mistake of the exporter, sheet of CRC/TMBP which was inferior in quality and having lesser market value than declared goods (CTP/TFS), having higher percentage of the customs duty were recovered, therefore, the appellant could not be charged under section 32 of the Act. He further contended that the plea of bona fide mistake on the part of the exporter was confirmed on account of refund of US$ 10,000 by the exporter through Bank as mentioned in the memorandum of appeal vide para No.13 thereof, hence the impugned order passed by the respondents was illegal, ultra vires and required to be set-aside. He also referred unblemished track record of the appellant in support of his arguments.
5. The departmental representative while opposing the appeal conceded that goods declaration filed, by the appellant was in accordance with the agreement and invoice. He also did not dispute the lesser market value of the secured goods than the declared goods but contended that the appellant could not deny the fact that the goods declaration was not in accordance with the goods recovered from the consignment having different PCT heading and higher rate of the customs duty, therefore, the impugned order is in accordance with law and the appeal has no merit, therefore, liable to be dismissed.
6. On careful and circumspective consideration of the above arguments in the light of the record I have reached to the conclusion that the impugned order can not be sustained under the law because of the reason that the respondents have failed to prove the ingredients of the offence as mentioned in section 32 of the Act, therefore, neither any penalty nor fine could be imposed under clause 14 of sections 156(1) and 81 ibid. Prima-facie the appellant had made correct declaration in the G.D. In accordance with information in its possession in the form of invoice and the agreement.
Its contention that incident has occurred on account of fact that the wrong goods were sent by the exporter is fortified from the undisputed and uncontroverted plea as mentioned in para-13 of the memorandum of appeal that the said exporter had refunded US$ 10,000 to it through Askari Bank AWT Plaza, I. I. Chundrigar Road, Karachi as difference between the value of the two items . It is not the case of the respondents that the said act of the exporter was done with the connivance of the appellant, hence discrepancy in mentioning the goods in the G.D. By the appellant can not be termed as mis-declaration within the contemplation of section 32 ibid for want of any tangible evidence that such mis-declaration was made knowingly or having reasons to believe that the same was false in any material particulars, which is a sine quo non for such offence, therefore, the appellant can not be held guilty of section 32 ibid.
7. The upshot of the above discussion is that the impugned order can not be upheld in this appeal on the legal footings, therefore, liable to be set-aside. Order accordingly. The appeal is allowed as prayed. .