ADNAN AHMED, MEMBER (JUDICIAL-II).---This order will dispose of Customs Appeal No,K-739 of 2007 filed by the appellant against the Order-in-Appeals Nos,724 to 727 dated 22-10-2007, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi, mutates mutandis applied to the present appellant.
2. Brief facts of the case are that the appellant had imported consignment of Iron and Nuts sizes M6, M8 and M10 weighing 7103.78 Kgs of Taiwan origin values @ US$ 1173.80 which worked-out to US$ 165/MT and sought the clearance thereof'.
3. On scrutiny, the declared value was found lower side, even the value of raw material i,e, wire rod which was US$ 560/MT. However, evidences of prices of nuts of Japan and Taiwan origin were available as US$ 1930/MT and US$ 942/MT but these prices related to the period of June/February, 1997 and the, contract period in these cases was more than six months. Therefore, the importer did not agree with these prices. Since, the valid evidence of value of the subject goods was not available as such the goods were assessed provisionally on US$ 165/MT value under section 81 of the Customs Act, 1969 and the case was referred to Valuation Directorate for finalization of the values after securing differential amount of duty and taxes against pay order. The Valuation Directorate vide its advice bearing VDUO No, 1/29/98-VIII/10079 dated 2-9-1998 advised to finalize the assessm ent at US$ 1225/MT. In view of the same an amount of Rs, 269000 besides the secured amount in the shape of VRD is become short levied against the importer.
4. The Deputy Collector of Customs (Appraisement Group-II), Appraisement Collectorate, Custom House, Karachi, vide Order-in-Original No,87817-1606 of 2013 dated 15-5-2013, passed the following order:-- "I have gone through the record of the case. Scrutiny of the available record reveals that the goods were correctly assessed provisionally under section 81 of the Customs Act, 1969. But later on the Valuation Directorate vide its advice bearing VDUO No,1/29/98-VIII/10079 dated 2-9-1998 advised the group to finalize the assessm ent at US$ 1225/MT. It is pointed-out that as per established practice of the group, after the issuance of valuation advice the group ought to follow the same.
Hence, the plea of the importer not to accept the value determined in the valuation advice is baseless and not tangible. In view of the same an amount of Rs,269000 besides the secured amount in the shape of VRD has been short levied against the importer. Therefore, the importer is hereby directed to pay the short levied amount within seven days of issue of this notice. In case of failure and demand will be enforced and recovery proceedings be initiated under the relevant provisions of law."
5. The Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi vide Order-in-Appeals Nos,724 to 727/2007 dated 22-10-2007, dismissed the appeal mutatis mutandis applied to the present appellant.
6. The appellant being dissatisfied with the Order-in-Appeals Nos,724 to 727/2007 dated 22-10- 2007, passed by the, learned Collector of Customs, Sales Tax and Federal. Excise (Appeals), Karachi, filed this appeal before the Tribunal on the grounds incorporated in the Memo. of Appeal.
7. The respondent No,2 has submitted their para-wise comments which are summarized as under:- -
(1) That the goods were released provisionally on 10-8-1998 in terms of Section 81(1) of the Customs Act, 1969, and the matter was referred to the Directorate of Valuation for investigation and advise in the said matter. After thoroughly investigating the issue, the Directorate of Valuation vide their U.O.
Note No,1/29/98-VIII/10079 dated 2-9-1998 has advise to finalize the assessment @ US$ 1225/MT as against @ US$ 165/MT. Accordingly in terms of Section 81(2) of the Customs Act, 1969, the provisional assessm ent was finalized on 11-3-1999 and after adjustments/calculations of duties and taxes in terms of subsection (3) of section 81 of the Customs Act, 1969, vide demand notice dated 15-3-1999, the appellants were asked to make payment of the differential amount of duties and taxes. Thus, considering the aforesaid' chronological order and also taken into account the Honourable High Court's order dated 26-4-2006 passed in Constitutional Petition No, 137/2006 (Messrs Sana International Trading Corporation., (Pvt.) Ltd., Karachi, v. Collector of Customs and others) the appellants contention about time limitation is totally incorrect and it is clear that the provisional assessm ent was finalized within the stipulated period. Since the appellants have failed to respond to the demand notice, that being so, the demand was enforced vide Order-in-Original No,151/2007 dated 24-5-2007.
(2) Without prejudice to above, as far as merits of the case are concerned it is respectfully submitted that every declared value cannot be termed as true payable transaction value and any transaction also can not be considered as customs value in terms subsection (1) of section 25 of the Customs Act, 1969. The record of the case proves that the appellants have no answer as to why their declared price was lesser then the prevailing international price of the said commodity, which was even not commensurate with the price of raw material used in the manufacturing of nuts etc. It is pertinent to mention here that all other similarly placed importers had cleared their consignment of Nuts at the prevailing price around @ US$ 1200/PMT. Moreover, the record shows that the appellants have failed to provide the requisite information/corroborative documents to substantiate their declared value with the incidental adjustments of price, thus, in terms of clause
(f) of subsection (2) of section 25 of the Customs Act, 1969, there was no question to accept their declared value as customs value in terms of subsection (1) of section 25 of the Customs Act, 1969.
As stated above, the customs value of the appellant's consignment was determined in the light of customs value data of similar kind of goods maintained in terms of subsection 13(a) of section'25 of the Customs Act, 1969, thus, considering the provisions of subsections (9) and (11) of section 25 ibid read with Rules, 110, 111 and 121 of the Customs Rules, 2001, the final assessment of the appellant's consignment was made within four corners of law.
8. The case was fixed for hearing on 13-6-2013. Sardar Faisal Zafar, Advocate is appeared on behalf of the appellant and no one appeared on behalf of the respondents.
9. That the appeal is an old one. The appellant's counsel and representative of the department has already submitted synopsis which are placed on record, therefore in the present circumstances, the appeal cannot be kept pending.
10. That the learned counsel for the appellant has argued that the appellant imported consignment of Iron Nuts from Taiwan which arrived vide IGM No,1092/98 dated 27-7-1998 Index No,51 and same was released provisionally under section 81 of the Customs Act, 1969 on 10-8-1998. He further argued that after provisional assessment, the respondents have failed to assess finally accordingly and after lapse of 8 years, the assessment order was passed which is against the law and violation of the rulings of the superior courts.
11. That the learned counsel for the appellant has further argued that the Order-in-Original No,151/2007, passed on April, 2007, issued on 24-5-2007 and Order-in-Appeals Nos,724 to 727/2007, passed on 17-10-2007, issued on 22-10-2007 (also applicable to the present appellant) order passed ex parte without giving opportunity to the appellant. The orders of the forum below are non-speaking judgment and violation of natural justice.
12.In other hand, the contentions raised in written synopsis of the arguments filed by respondents Nos,1 and 2 have opposed the contentions of the appellant's in defence and stated that the counsel for the appellant has submitted copy of the Customs, Excuse and Sales Tax Appellant Tribunal Order dated 26-7-2004 passed in Customs Appeal No,K-1554/01/7175 with the contention that his case securely covered under the said judgment and therefore, being a time barred and finalization of assessm ent demand raised by the department is unlawful. The said orders are order-in-persona and not an order-in-rem, therefore, the above said judgments cannot be given strength to the judgments passed by the Hon'ble superior courts.
13.He further stated that the arguments of the learned counsel for the appellant on the point of time barred case in terms of 81 of the Customs Act, 1969 is based on technical ground. The demand cum show-cause notice issued after stipulated period given under section 81 of the Customs Act, 1969, hence the ground of limitation have no value in the eyes of law. The departmental representative has requested that the appeal filed against the concurrent judgment is liable to be dismissed with special costs as such the outstanding revenues along with the surcharge are due against the appellant.
14.We have considered advanced arguments and submissions of the representative of the parties and perused the record. That the show-cause notice/demand notice dated 15-3-1999 were issued to the appellant under section 81 of the Customs Act, 1969 and no reply has been submitted by the appellant within a stipulated period and then order-in-original was passed in April, 2007.
The respondent has given opportunity to the parties for hearing and submissions of facts as well as law and copy of the said order-in-original was issued on 24-5-2007. Subsequently, the appellant has filed an appeal but the same were dismissed in non-prosecution by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi (respondent No,1).
15. The appellant has filed the present appeal against the impugned judgment. The respondent has submitted their written submissions/ synopsis of the arguments. The record shows that the respondents has failed to justify the period of limitation. The respondent department has also failed to finalize the provisionally assessment within the period as provided under section 81 of the Customs Act, 1969 and record shows that there is not any order for extending the period for final assessm ent. Therefore, by virtue of provisions, the contained under section 81 subsection (4) of the Customs Act, 1969 the provisional assessment made as attain finality.
16.Moreover, the facts stated by the respondents has not affected the legal aspect/reasoning in fact the demand of the respondents was time barred and the contention of the department to finalize the valuation is not tenable as law provided under section 81 of the Customs Act, 1969 which was not followed by the department. This view has already been taken by the Tribunal Karachi Bench-III in case of Messrs Mehmood Akhtar and Sons v. Collector Appeals Karachi Appeal No,1044/1999 decided on 23-8-1999. Therefore, in circumstances the impugned orders of the forum below passed by the respondents are set aside as such the demand made by the respondent was a time-barred. The appeal is allowed with no order to cost.
17.Order passed accordingly.