CH. MUHAMMAD SHABBIR GUJJAR, MEMBER (JUDICIAL). Through this single judgment, we intend to dispose of the appeals, detailed in the Table, preferred by the appellants against the above mentioned order-in-original, passed by the learned Additional Collector of Customs (Adjudication), Lahore, as common question of law and facts are involved therein.
2. Briefly stated facts of Custom Appeal No. 181/LB/2012, filed by M/s. 99-Star Corporation, Lahore, as reported, are that the appellant imported a consignment consisting of "Ball Bearings, Timer for Washing Machine, Capacitor and Switcher for Bracket Fan" from China and sought clearance through clearing agent M/s. Seaagulls International, Lahore. The clearing agent got the goods examined on 23.07.2012 and the concerned Examining Officer endorsed the examination report at the reverse of GD. However , on the basis of a specific information passed by the Deputy Collector of Customs (CFS/NLC), Lahore further process on the GD was stopped to probe the matter . The information was received from Karachi, showed that the description of the goods was declared as single item "Timer" instead of actual description of "Ball Bearing, Timer for Washing Machine, Capacitor and Switches for bracket Fan". The facts of Customs Appeal No.179/LB/2012 filed by M/s. Seagulls International, Lahore, are that the appellant imported a consignment of "Aluminum Enamelled Winding Wire with Nylon Coating" from China by mis-declaring it as "Power Cable Lead for Computer" and sought clearance thereof vide GD dated 15.07.2012 filed through M/s. Anjum Brothers, Customs Clearing Agent, Lahore, claiming assessment and clearance thereof under HS Code 8544.4210. In both the appeals, the charge of mis-declaration against the above importers was levelled with the connivance of the Customs Clearing Agents. On the request of the appellants, without issuing the show-cause notices, the adjudication proceedings were carried out, which culminated into the passing of the impugned order-in-originals, whereby the goods were confiscated but an option was given to the appellants to redeem the same on payment of redemption fine equal to 35% of the assessed value in addition to payment of duty and taxes leviable thereon. In both the above appeals, different penalties were imposed upon the Customs Clearing Agents due to mis-declaration on their part. Feeling aggrieved from the said orders, the appellants filed the present appeals before this Tribunal.
3. The learned counsel for the appellant has contended that while filing the aforesaid GDs, correct and true description of goods were made and the Examining Officer of the Customs examined the consignment and recorded the correct report on the reverse of the GDs highlighting the particulars of all the imported items separately . Thus, the allegation of wrong declaration is baseless. Moreover , on feeding examination report in the computer , it was otherwise not possible for the same Examining Officer to change his earlier report. It is further contended that the story narrated in the contravention report and impugned order is un-believable and benefit of doubt goes in favour of the appellants. It is submitted that the GDs and other documents available with the Customs and also annexed by the appellant with the appeals, clearly show that the correct and true declaration was made by the appellants. It is further submitted that the story narrated in the contravention report and the impugned order otherwise stood belied on the basis of report of the Team constituted by the respondent which confirmed the examination report endorsed on the reverse of the GD by the Exam ining Officer. It is added that on the basis of alleged mis-declaration of the description of goods, the appellants were charged for violation of sections 32(1) and 32(2) of the Customs Act, 1969 and the case was adjudicated by the learned Additional Collector (Adjudication) while giving an option to pay fine in lieu of confiscation equal to 35% of the ascertained value as mentioned in SRO 499(1)/2009 dated 13.06.2009. Although the adjudicating authority has not mentioned the above SRO, yet he imposed the fine in the light thereof and on request to re-consider quantum of fine he told the appellants that ceiling for mis--declaration being indicated in SRO can neither be waived, nor altered not reduced. It is further added that the FBR under 2nd proviso cannot fix the quantum of fine in respect of goods which are not hit by section 15 by a notification issued under section 16 or any other law for the time being in force.
Thus, fixation of fine for mis-declaration of description, weight, value or classification of the goods under above provisions of law is void and illegal. It is contended that since the FBR has no authority and power to fix the quantum of fine to be imposed in lieu of confiscation by an appropriate officer of customs in the exercise of his quasi judicial function except in respect of goods mentioned in 2nd proviso to section 181, thus, SRO 499(I)/2009 dated 13.06.2009, so far as it relates to fixation of fine for the offences of mis-declaration is patently void, illegal being ultra vires the statutory provisions contained in section 181 of the Customs Act, 1969. It is submitted that as regarding appellant No.2, he filed the GD on the basis of revised correct and true documents delivered to him by the appellant/importer . However , appellan t No.2, had declared correct description, classification, quantity , weight and other particulars of the goods. Hence there was no justification for imposing huge penalties upon the Customs clearing Agents and directing the Licensing Authority to proceed against them.
4. Conversely , the representative of the respondent department has supported the allegations of mis-declaration and stated that the impugned orders are speaking, thus the same are sustainable under the law. It is contended that the impugned orders were passed by the learned adjudicating authority after applying its judicious mind, therefore, the appeals filed by the appellants are liable to be dismissed.
5. Arguments have been heard. Record perused. We find that the contention of the learned counsel that the pitch of fine fixed for mis--declaration vide clauses (a) to (g) under Serial -1 of the Table of SRO 499(I)/2009 dated 13.06.2009, was no more holding the field on amendment of section 15 of the Customs Act, 1969 vide Finance Act No. XVI of 2011 carry force. The Board may fix the amount of fine which in lieu of confiscation shall be imposed on any goods or class of goods imposed in violation of the provisions of section 15 or a notification issued under section 16 or any other law for the time being in force under 2nd proviso to section 181 of the Customs Act, 1969.
Earlier there was no provision authorizing the Board to fix fine in lieu of confiscation for violation in term of section 32 of the Customs Act, 1969. However , clause (c) of section 15 was amended and the goods imported or exported in contravention of the provision of section 32 was inserted therein vide Finance Act, 2004. Thus, on deletion of the aforesaid provision from clause (c) of section 15 vide Finance Act, XVI 2011, the pitch of fine fixed by the Board for the contravention of section 32 vide clauses (a) to (g) under Serial-I of the Table of SRO 499(1)/2009 dated 13.06.2009, became redundant and no redemption fine can be imposed on the basis thereof by the adjudicating authority . Besides above, admittedly , the correct declaration was made by the appellants. The goods were examined and assessed to duty and taxes which were paid and no loss to revenu e was caused in this regard and as such section 32 is otherwise not attracted as held in cases reported as "2003 PTD 552 titled M/s. Al-Hamad Edible Oil Ltd and others v. Collector of Customs and 2007 SCMR 1881 , Federation of Pakistan and others v. M/s. Seman Diplomatic Bonded Warehouse, M/s. A.R. Hosiery Works, Karachi v. Collector of Customs (Export) another and Collector of Customs (Export) and anothe r v. M/s. A.R.Hosiery Works Karachi " . In the above reported cases; it was held that section 32 would not apply in case where no loss of revenue took place. It is an admitted fact that duty and taxes, as assessed, by the department were paid by the appellants and no loss to revenue was caused. The allegation that the appellants initially intended to mis-dec lare the goods but subsequently changed their mind and made correct declaration does not constitute any offence because the "intention" neither constitutes an offence nor it is punishable under any law for the time being, in force, as held in the case reported in "PLD 1986 SC 92 titled Collector of Customs v . Khan Muhammad ".
6. In view of what has been discussed above, the appeals mentioned in the above Table, are accepted and the orders passed by the learned adjudicating authority , are set aside, being devoid of any merits.