Mr. Muhammad Sadiq (Member Technical).--(1). The current proceedings have been triggered from the Honourable Lahore High Court Lahore's Order dated 13.02.2017 in Customs Reference 02/2015 remanding the case to the Tribunal. Accordingly this judgment shall decide the above mentioned Customs appeal filed against Order-in-Original No. 47/2014 dated 27.06.2014 (the impugned order) passed by the learned Additional Collector of Customs (Adjudication), Lahore.
2. Brief facts of the case are that the Deputy Director , Directorate of Customs Post Clearance Audit, vide contravention report C. No. PCA/LHR/C/13/201 1/dated 26.07.2013 are that M/s Coca Cola Export Corporation (Pvt.) Limited, 5-E/II, Gulberg-III, Lahore (the Appellant) imported consignments of flavorings substances for use in aerated beverages and got it cleared under PCT heading 3302.1090, instead of PCT heading 3302.1010 through Model Customs Collector (Preventive), Air Freight Unit (AFU), Allama Iqbal International Airport, Lahore. By declaration as aforesaid (under PCT heading 3302.1090 instead of correct PCT heading i.e. 3302.1010) the appellant claimed and availed inadmissible benefit of Federal Excise Duty chargeable @ 50% ad valorem. On the basis of the above reported facts, the case was referred for adjudication and M/s Coca Cola Export Corporation (Pvt.) Limited, 5-E/II, Gulberg-III, Lahore were charged with the contravention of the provisions of Section 32(1) &
(2) of the Customs Act, 1969 (the Act) read with Section 3(1) of the Sales Tax Act, 1990 further read with Section 3(1)(b) and 12(3) read with Sr. No. 41 of Table-I of the Federal Excise Act, 2005 punishable under clause (14) of Section 156(1) of the Act, and were called upon to show cause as to why the duty and taxes amounting to Rs. 27,39,907/- be not recovered under section 33(5) of the Sales Tax Act, 1990, Section 14 of the Income Tax Ordinance, 2001 and Sections 14 & 19 of the Federal Excise Act, 2005.
3. The adjudication proceedings culminated into passing of the impugned order-in-original. The operative part of the said order reads as follows:-- "...........the allegations leveled in the show cause notice stand established against- the respondents M/s. Coca Cola Export Corporation (Pvt.) Limited, Lahore. Accordingly , it is hereby ordered as under:--
(i) Liability of evaded amount of duties and taxes of Rs. 27,39,907/- (rupees twenty seven lac, thirty nine thousand, nine hundred and seven only) is adjudged against M/s. Coca Cola Export Corporation (Pvt.) Limited, 5-E/II, Gulberg-lll, Lahore and are directed to pay the same into national exchequer vide Sections 32(1) & 32(2) of the Customs Act. 1969 read with Section 3( I )1 b), 6, 11, 22 & 26 of the Sales Tax Act, 1990 further read with 3( I )(b), 12(3) read with Sr. 41 of Table-I of the Federal Excise Act, 2005 read with Section 148 of the Income Tax Ordinance, 2001 ; and
(ii) Penalty of Rs. 10,00,000/- (rupees ten lac only) is imposed upon M/s. Coca Cola Export Corporation (Pvt.)
Limited, 5 E/II, Gulberg-III, Lahore under section 32(1) & (2) of the Customs Act, 1969 read with section 3(1)(b) of the Sales Tax act, 1990 further read with sections 3(1)(b) and 12(3) read with Sr. No. 41 of Table-I of the Federal Excise Act, 2005 punishable under claus e (14) of Section 156(1) of the Customs Act, 1969, and Section 33(5) of the Sales Tax Act, 1990, Section 148 of the Income Tax Ordinance, 2001 and Sections 14 & 19 of the Federal Excise Act, 2005. The penalty shall be in addition to the default surcharges payabl e under section 8 of the Federal Excise Act, 2005, Section 34 of the Sales Tax Act, 1990, and Section 205 of the Income Tax Ordinance. 2001."
4. Aggrieved by the above impugned order , the appellant filed the instant appeal mainly on the following grounds:--