ADNAN AHMED, MEMBER (JUDICIAL-II).---This order will dispose of Customs Appeal No.K-252 of 2013, filed by the appellant against the Order-in-Original No.65591, dated 14-2-2013, passed by the Additional Collector of Customs (Adjudication-II), Model Customs Collectorate of PaCCS, Karachi.
2. Brief facts of the case are that the importer electronically filed Goods Declaration bearing No.6564 dated 13-7-2012 declared to contain USED/REFARB LCD MONITOR I/O ALL ORIGIN AND ASSORTED SIZE, declared classification 8528.4196 at a total invoice value of US$ 3080. The importer determined his liability of payment of applicable duty and taxes and sought clearance under Section 79(1) of the Customs Act, 1969. In order to check as to whether the importer has paid the correct and legitimate amount of duty and taxes the under reference GD was selected for scrutiny in terms of section 80 of Customs Act, 1969.
3. Scrutiny of the Goods Declaration in the light of physical examination report, it revealed that the importer has mis-declared the description/classification/specification and imported un-declared item beside the import of banned items correctly classifiable under heading 8528.7211 (used TV) import of which is not allowed in used condition in terms of S. No. Appendix-C of the Import Policy Order 2011-2012. The text of physical examination report is reproduced as under:-- "Contr # DCCU4631989. The goods are (1) Used Refurbished LCD TV Display, having function TV- in/NTSC/Analog, AV I in, AV2 in, AV out, Pc-in (VGA/DVI), PC audio, S-Video, Video Left/Right and Head Phone Slot, Size 23", Model No.W2306C, Brand Dell, I/o China, Qty 216 Units, (1/a) Used Refurbished LCD TV Display, [raving functions--TVin/HDTV/Digital/NTSC/Analog, AV 1 in, AV2 in, AV3in, AV4in, AV out, Pc-in (VGA/DVI), PC audo, S-Video, Video Left/Right and Head Phone slot, Size 26", Model No.W2607C, Brand Dell, l/o China, Qty 91 Units, (2) New Plasma Television, Size 42", Model No. TH-P42X30M, X Series, Brand Panasonic, 1/o Thailand. Qty Unit. 100% wt found 5200 Kgs vide slip No. 303405 dated 15-7-2012."
The value of un-declared item worked out as Rs.27765 and value of banned items worked out as Rs.2691323.
4. The Importer has deliberately concealed the actual description and specification of imported goods and violated the provisions of law by importing banned items the import of which are not allowed in used condition and attempted to defraud the government from its legitimate revenue amounting to Rs.1697664. Considering the available data of similar kind of goods in terms of section 25 of the Customs Act, 1969 and Rule 107(a) of the Customs Rules, 2001, the determined value of the offending goods comes to Rs.2719088.
5. The importer have therefore contravened the provisions of sections 16, 79(1), 32(1), 32(2) and 32(A) of the Customs Act, 1969, section 3[1] of Import and Export Control Act, 1950, section 33 of Sales Tax Act, 1990, section 148 of Income Tax Ordinance, 2001, punishable under clauses 9, 14, 14(A) and 45 of section 156(1) of Custom Act, 1969, 3[3] of. Imports Export Control Act, 1950, Clause 11(c) of section 33 of the Sales Tax Act, 1990, and section 148 of the Income Tax Ordinance, 2001.
6. The Additional Collector of Customs (Adjudication-II), Model Customs Collectorate of PaCCS, Karachi did not agree with the reply of snow cause notice submitted by the appellant and passed an Order-in-Original No.65591, dated 14-2-2013, directing that "the contravening goods imported in violation of import restrictions are outrightly confiscated under clauses 9, 14, 14A and 45 of section 156(1) of the Customs Act, 1969 for violation of the provisions of sections 16, 32(1), 32(2), 32(A), 79(1) of the Customs Act, 1969, clause 11(c) of section 33 of the Sales Tax, 1990, section 148 of the Income Tax Ordinance, 2001 and sections 3(3) and 3(1) of the Import and Export Control Act, 1950. A penalty of Rs.543,818 @ 20% the of ascertained value (Rs.2,719,088) of offending goods is also imposed under clauses 9, (14) and (14A) of Section 156(1) of Customs Act, 1969 on the importer."
7. The appellant being dissatisfied with the order in original passed by the learned the Additional Collector of Customs (Adjudication-II), Model Customs Collectorate of PaCCS, Karachi, filed this appeal before the Tribunal on the grounds incorporated in the Memo. of Appeal.
8. The respondent have submitted para wise comments and stated that the Order-in-Original has been passed by the concerned Additional Collector of the Adjudication Collectorate, therefore, the appellant's objection of the Order-in-original, without jurisdiction is totally misconceived and incorrect, hence, vehemently denied. It is further respectfully submitted that the adjudication is required to be done under section 179 of the Act, and the show-cause notice is required to be issued in terms of sections 32 and 32-A read with section 80(3) of the Act, therefore, in absence of Adjudication Officers of the Adjudication Collectorate and with the authorization of the Board vide letter C. No.2(2)L&P/89(Pt) dated 6-8-2012, 3-9-2012, 15-9-2012 and 3-10-2012 respectively, read with section 179(4) of the Act, the Collectorate's Adjudication Officer very rightly issued the show- cause notice. It may also be noted that the appellants were also aware of this fact that at the relevant point of time the Adjudication Collectorates were not operational and in order to mitigate the problems of the importers, to save them from delay and port charges, the Board, by exercising its powers, authorized the clearance Collectorates to proceed for adjudication. It is noteworthy that the importer himself, vide letter dated 28-1-2013 has requested for provision of show-cause notice and Orderin-Original. Therefore, considering the provisions of section 179(4) of the Act, and section 113 of the Qanun-e-Shahadat Order, 1984, the appellants have no case on the ground of issuance of show-cause notice by the clearance Collectorate.
9. It is, however, respectfully submitted that on merits the appellant has no case, that being so, the petitioners are taking refuge behind the technicalities. The honourable apex Court on number of occasions has instructed the concerned Courts of appellate jurisdiction that the merits of the case may not be scrapped on sheer technicalities. Without prejudice to the above, if the acts of the Adjudication Officer of the PaCCS Collectorates were so much illegal (as presumed by the appellants in this appeal) then as to why they have insisted for the (illegal) adjudication of the case and issuance of the show-cause notice/ order-in-original at that point of time and according to their arguments' sake they should have wed for appointment of officers of the Adjudication Collectorates. If the F.B.R's action is illegal then the appellant should have filed a constitutional petition before the High Court. Here in this case the F.B.R. is not a respondent to the subject appeal, therefore, technically speaking the acts of the F.B.R. cannot be agitated or argued in the subject appeal because of the fact that the appeal is against the order-in-original passed by the Additional Collector (Adjudication) which is within four corners of law. Further the order-in- original, under section 179 of the Act, has been passed by the officer of the Adjudication Collecorate but the appeal has been filed against the officers of PaCCS Collectorate, therefore, technically the order-in-original has not been appealed.
10.That it is a case of "mis-declaration" and attempt of evasion within the meaning of sections 32 and 32-A read with sections 79(1)(b) and 80(3) of the Act, further read with section 6 of the Sales Tax Act, 1990, therefore, factually and legally the contents of para (5) of Grounds of appeal are incorrect, hence, denied. Without prejudice to the above, the subsection (1) of section 179 of the Act, is asking for adjudication of duty, taxes and other charges. It is further submitted that as per S.R.O.
232(1)/1991 the customs officers are also Sales Tax Officers, therefore, in view of the honourable High Court's order dated 29-11-2010 in the case of C.P. No.D-245/2009 and considering the amended provisions of sections 179(1), 79(1)(b), 81(1) and 32(1)(c) of the Act. That the appellants have no answer to the established fact that the sets (used/new) have been imported under the garb of LCD Monitors, therefore, it is an established case of deliberate mis-declaration of physical description, PCT classification, wrong self-assessment, attempt of evasion, etc., within the meaning of section 32(1) read with section 79(1) of the Act, and by importing used TV sets the appellant has also violated the provisions of Import Policy Order, read with section 3 of the Imports and Exports (Control) Act, 1950.
11.The case was fixed for hearing on 24-5-2013. Mr. M. Arif Moton, Advocate along with Mr. M. Adnan Moton, Advocate, are present for the appellant and Mr. Ghulam Yasin, P.A, represented the respondents.
12.The counsel for the appellant has argued that appellant has imported "Used LCD/REFARB Monitor of USA Origin of assorted sizes classifiable under PCT Heading 8528..4190 attracting Customs Duty 0% and Sales Tax 16% and Withholding Tax 5%. Due to misconception the Assessing Officers and examination staff of Model Customs Collectorate of PACCS classified these LCD Monitors as LCD TV Display correctly classifiable under PCT Heading 8528.7211 liable to Customs Duty 30%, Sales Tax 16% and withholding tax 5%. The value of the subject Used LCD/REFRAB Monitor has also been enhanced disproportionately to the value of LCD TV Display. Besides being allegedly TV reception LCDs have been declared to be imported in used condition, these are hit by Appendix- C of Import Policy Order in vogue.
13.The counsel for the appellant has further argued that the factual position is quite to the contrary. LCD TV Monitors old and refurbished are importable under current Import Policy Order, 2012-2013. These Monitors in their present form are not capable of being used as LCD TV Sets. A Special Device XPOD needs to be attached to these Monitors to use them as TV Sets. The classification is always done keeping in view the principle usage of the item imported in its present form. As such calling these LCD TV Monitors TV Sets would be far from truth and against the golden principle of interpretation of Pakistan Customs Tariff based on Harmonized System. Besides the show-cause notice dated 16-10-2012 being issued without jurisdiction is null and void in terms of S.R.O.886(I)/2012 dated 18-7-2012 effective from 10-7-2012 and all subsequent proceedings based upon it are also unlawful, illegal and null and void.
14.The departmental representative has argued that the Additional Collector of the Adjudication Collectorate vide Order-in-Original No.65591 of 2013 dated 14-2-2013 and the appellant has not made party to the Additional Collector Adjudication Collectorate meaning this that the appellant is not aggrieved with the acts and adjudication made by the officer in terms of section 179 of the Customs Act, 1969, hence the appeal is liable to be dismissed in limine.
15.The departmental representative further argue that as per S.R.O. 886(1)/2012 dated 18-7-2012 the adjudication powers of the Collectorate's Adjudication officers were transferred to the officers of new created Collectorate of Customs (Adjudication). Therefore, the Board by exercising its powers in terms of subsection (4) of section 179 of the Customs Act, 1969 read with sections 4(1)(k) and 4(2) of the F.B.R. Act, 2007. The powers entrusted by the Board through aforesaid provisions of law and such orders were circulated in different dates in year, 2011.
16.The contention of the learned departmental representative is that the submissions contained in the memo of appeal are incorrect, misleading and concocted and contrary of the facts. The departmental representative has further referred the parawise comments of the cross-appeal which was submitted before this Tribunal and denied the legal as well as facts of all aspects.
17. We have heard the both parties and also perused the relevant papers and provisions of law coupled with the authorities cited by the learned counsel and representative of the respondent.
18. We have a viewed that without touching merit of the case; we determined the legal points as under:-- (i)Whether the appellant have locus-standis to file this appeal?
(ii)What should the order be?
19. The appellant has filed present appeal against the Additional Collector of Customs through Muhammad Saleem son of Muhammad Fateh Yousuf showing in title as well as affidavits in support of memo. of appeal and interlocutory applications authorized person but have not filed any authority letter, power of attorney or resolutions on behalf of Messrs Bajwa Engineering, neither during hearing proceedings nor placed has produced the same. The present appeal is verified by unauthorized person having without any authority.
20. We considered to legal and factual aspects of the appeal and under present legal circumstance, the present appeal appear to be of such type that which should be disposed off on point of locus standi. Besides there is volume of law and observations of the superior courts with legal point is determined first which is binding upon this Tribunal and we have considered the same, the appellant's counsel has failed to produce copy of authority, resolutions/power of attorney which established that the person who has filed the appeal before this forum is incompetent.
21. For the above reasons which stand substantiated by law, it is held that the present appeal is not maintainable in law and therefore, it is dismissed accordingly. Listed applications are also dismissed along with the appeal. No order to costs.
22. Order passed accordingly.