The following questions of law, asserted to have arisen out of the impugned judgment dated 20.12.2011, passed by learned Customs Appellate Tribunal, Bench-II, Lahore ("Appellate Tribunal"), in Customs Appeal No. 255/LB/2011 have been proposed for our opinion: i) "Whether clearing of warehoused goods for home-, consumption is chargeable to duty/taxes assessed at the time of in-bonding of the goods? ii) Whether the Valuation Ruling issued under subsection (1) of Section 25-A of the Customs Act, 1969 and the value determined under subsection (3) of Section 25-A of the ibid Act remains operative until and unless revised or rescinded by the competent authority? iii) Whether the learned Appellate Tribunal erred in law in holding that the Valuation Ruling No.175 dated 28.10.2009 had lost its validity on expiry of 90 days from the date of its issuance and it could not have been applied for determination of Customs value of the imported goods? iv) Whether the Customs value determined through Valuation Rulings No.175 dated 28.10.2009 and No.321 dated 21.05.2011 issued under Section 25-A of the Customs Act, 1969 were applicable Customs value for assessm ent of the relevant imported goods? v) Whether the learned Appellate Tribunal erred in law in holding that neither Valuation Ruling No.175 dated 28.10.2009 nor Valuation Ruling No.321 dated 21.05.2011 could be applied for determination of value of goods imported by the respondent? vi) Whether the respondent importer is estopped by its words and conduct to question determination of the value of his imported goods on the basis of Valuation Ruling No.321 dated 21.05.2011?
(vii) Whether the impugned judgment is against law and facts of the case?"
2. Brief facts of the case are that Respondent No.1 Company (the "Respondent") imported Automotive Safety Glasses from China and filed in-bond Goods Declaration declaring it at US$ 0.38/kg. The value declared by the Respondent was enhanced by the department on the basis of Valuation Ruling No.175 dated 28.10.2009, issued under Section 25-A of the Customs Act, 1969 (the "Act") at the rate of 1.50/kg. These Valuation Rulings on challenging through C.P.No.2673/2009 before Sindh High Court, Karachi, were set aside, vide order dated 28.02.2011. Vide order dated 28.10.2011, passed in Writ Petitions Nos.5895 and 5895 of 2011, the Appellant-department was directed by this Court to release the Petitioners' goods provisionally on payment of duty/tax at the declared transactional rates. The said order was complied with, however, above referred writ petitions were dismissed for non-prosecution. In compliance of aforementioned order passed by learned Sindh High Court the issue was settled by the Appellant-department issuing a direction for finalization of the assessm ent at 1.65/kg US dollar. The provisional determination of goods was finalized in terms of Section 81 of the Act, vide order dated 13.06.2021, passed by Deputy Collector Customs, Lahore and Appeal filed there-against by the Respondent failed vide Order-in-Appeals Nos.374-391/2011, however, Appeal filed against it filed before Customs Appellate Tribunal was allowed vide the impugned judgment, hence this Reference Application.
3. At this stage, learned counsel for the Respondent submits a copy of order dated 06.10.2016, passed in Custom Reference No. 42 of 2013 involving identical questions of law decided by learned Division Bench of this Court and prays for decision of the Reference in. hand alike the said one.
4. At the very outset, learned counsel for applicant department was confronted with the fact that instant Reference Application is barred by time. He submits that impugned judgment dated 20.12.2011 was not received in the office of Applicant-department while the Applicant came to know about impugned judgment, when it received its copy sent by M/s. Madina International, one of the respondent taxpayers through its letter addressed to the Deputy Collector of Customs, Group-II, Lahore Dryport, Lahore, demanding refund of bank guarantee, which was received in its office on 02.04.2012. In the end, he submits that Reference Application is within time from the date of receipt of certified copy of the impugned judgment, as no copy was received from learned Appellate Tribunal, as per Section 194-B of the Act of 1969.
5. Arguments heard. Record perused.
6. Perusal of record reveals that impugned judgment was passed by learned Appellate Tribunal on 20.12.2011. It has neither been contended in the application for condonation of delay that the judgment was reserved or was kept in wait for orders or any effort was made to ascertain as to whether the judgment has been passed by learned Appellate Tribunal, nor any register of learned Appellate Tribunal has been produced to show that the copy of impugned judgment was not dispatched to the applicant department.
7. Law on the subject is very clear that presumption of correctness is attached to the judicial proceedings in terms of Article 129 (e) of the Qanun-e-Shahadat Order, 1984, and in order to displace the same, some evidence is required to be produced by the applicant department along with application for condonation so as to make out a case for condonation of delay within the contemplation of provisions of Section 196(8) of the Act of 1969 read with Section 5 of the Limitation Act, 1908.
8. It is well settled that delay in filing proceedings could not be condoned lightly unless it was shown that there were sufficient reasons causing the delay. Law of limitation reduced an effect of extinguishment of a right of party when significant lapses occurred and when no sufficient cause of such lapses, delay or time-barred action was shown by defaulting party, the opposite party was entitled to a right accrued by such lapses. Negligence does not constitute sufficient cause to condone delay. Party seeking advantage of Section 5 of Limitation Act, 1908 must satisfy the Court that it had not been negligent and had been pursuing the case with due diligence and care. A Government Department, on question of limitation, could not be treated differently from ordinary litigant as held by Hon'ble Supreme Court of Pakistan in Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port Sambrial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307).
9. This Reference Application filed by the applicant department is vividly time barred and application for condonation of delay did not disclose any cogent, convincing and justified reasons for condonation of delay. Thus, the applicant has failed to point out any illegality or legal infirmity in the impugned order. Law on the subject is very clear that each and every day's delay is to be satisfactorily explained. Reference in this regard can be made to Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2007 PLC 64), Rehmat Din and others v. Mirza Nasir Abbas (2007 SCMR 1560), M/s. Nida-e- Millat, Lahore v. Commissioner of Income Tax Zone I, Lahore (2008 SCMR 284), Food Department Gujranwala v. Ghulam Farid Awan (2010 SCMR 1899), Worldcall Telecom Limited v. Pakistan Telecommunication Authority through Chairman (2011 SCMR 959), Qaiser Mushtaq Ahmad v.
Controller of Examinations (PLD 2011 Supreme Court 174), Lal Khan v. Muhammad Yousaf (PLD 2011 Supreme Court 657) and Lanvin Traders, Karachi v. Presiding Officer Banking Court No.11, Karachi (2013 SCMR 1419).
In the case of Almas Ahmad Fiaz supra, the Hon'ble Supreme Court held as under:- "It is a settled principle of law that the question of limitation under section 46 of the I.R.O. has to be rigidly construed on the well-known maxim that no party is allowed to circumvent the provisions of the statute of limitation. It is yet another principle of law that the party approaching Court of competent jurisdiction for redress of grievance beyond specified period of limitation is bound to explain each day's delay to the satisfaction of respective forum because a valuable right accrues to the other side. See "Government of Punjab v. Muhammad Salim" (PLD 1995 SC 396), (1995 SCMR 546) "Rehmat Ullah and others v. Ulyas Khan" (1968 SCMR 975) and "Pakistan Railway v.
Ghulam Sarwar" (1989 SCMR 864)."
11. In view of above, instant Reference Application, is not maintainable being barred by time and in view of findings given hereinabove. Hence, it is decided against the applicant department.
12. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per Section 196(5) of the Customs Act, 1969.