SHAKEEL AHMED ABBASI, JUDICIAL MEMBER-III.---By this common judgment, I intend to dispose of above mentioned Customs Appeals against Order-in-Appeals Nos.1837 to 1838/2022 dated 21.04.2022 passed by the learned Collector of Customs (Appeals), Karachi. Since these two appeals have been arisen out of the same impugned order, therefore, these are decided by this single consolidated judgment.
2. Brief facts of the case are that Appellant imported a consignment of "Tin Mill Black Plate Steels in Coils" vide commercial invoice, letter of credit and bill of ,lading which are enclosed herewith. The Appellants have tiled GD for into bond of the goods vide G.D No.KPPI-JB-7782 dated 04-08-2020 whereby the Appellants as per the nomenclature declared the pet heading HS Code 7209.1891 whereby the customs duty is 11%. However at the time of filing ex-bonding G.D No.KPPI-EB-19420 dated '15.09.2020 the assessm ent officer denied to assess the subject consignment tinder is specified HS Code 7209.1891 and assessed the same under 115 Code, 7209.1810 whereby the customs duty is 20%.
3. Adjudicating proceedings culminated into passing of Order-in-Appeals Nos.1837 to 1838/2022 dated 21.04.2022 passed by learned Collector of Customs (Appeals), Karachi as under:- "I have gone through the record of the case and the verbal / written arguments put forth by both the parties. In response to which Classification Committee has replied back vide letter No. C- 155/KAPE/DC/PCT/2020 dated: 29.10.2020 which states "the committee deliberated on the subject issue and unanimously agrees to the contention of the Collectorate that secondary quality TMBP steel coil fall under PCT heading 7209.1810" In the light of aforementioned letter of Classification committee, assessment is finalized accordingly. The Order of the Appellate authorities cited by the Appellants in support of their arguments are "Order-in- persona", hence case specific and cannot be used as "Order-in-Rem" as a settled law in terms of Article 201 of the Constitution. Without prejudice even otherwise, it is a settled law that if there is conflict of plain reading between a citation and actually promulgated law than the law shall prevail. It is observed that the Respondent Collectorate has made the case of misdeclaration. The case has been made right fully and in accordance with law against the Appellant which has been established. On the other hand on cogent reasons or documentary material/evidence are given by the appellant's counsel in support of his contention. I therefore, find nothing to interfere wish the impugned order. The appeal being devoid of merits according rejected."
4. The Appellant being aggrieved with the aforesaid impugned order passed by learned Collector Appeals filed the instant appeal before this Tribunal and has assailed the impugned order inter alia on the following grounds:- A. That the decision is utterly violative of judicially settled decision of the settled by- the adjudicating officer and the Customs Appellate Tribunal in its decisions vide Order-in-Original no 1466538 dated 10-12-2019 and the Customs Appellate Tribunal judgment in Customs Appeal No.K- 804/2020 whereby it was held that the imported Tin Mill Black Plane (TMBP) is classifiable under HS Code 7209.1891 and therefore the said decision tantamount to contempt of the verdict of the superior authorities under the Customs Act, B. That the Respondent No.1 has erred in law by holding that the decisions of the adjudicating officer and the Customs Appellate Tribunal are "order in persona" and not order in rem". It is submitted with utmost respect that the question as to whether the TMBP will be classified under HS code 7209.1891 or 7209.1810 has been judicially settled by the adjudicating officer in quasi judicial proceedings hence the said order is order in rem and not order in person. The impugned order is liable to be struck down on this ground alone.
C. That the Respondent No.1 has erred in law by not appreciating the facts that no opportunity of being head has been given before taking the decision by the Classification Committee. The respondents instead of finalizing the assessment on the basis of adjudicating officer order-in- original and customs appellate tribunal decision they malafidely and by utter motives referred the matter to classification center to bulldoze the verdict of the superior authorities which is not permissible under the law.
D. That it was already decided under the hierarchy of the Customs Act, 1969 by the adjudicating authority that the imported tin mill black plate is classifiable under HS Code 7209.1891 and therefore by no process of reasoning the same cannot be reversed on the so called classification committee which is subordinate to the adjudicating officer as well as the Customs Appellate Tribunal.
E. That the imported goods fall under HS Code 7209.1891 which is specified in harmonized coding system. It is well settled law in Pakistan Customs Tariff and Trade Control that if an classification of any goods is specified by description the same shall be appropriately classifiable under the said specified code and not elsewhere.
F. That the final assessm ent tantamount to disregard and disobey the decision of the superior authorities and adjudicating officer the decision of which cannot be interfered by any authority or committee under the Customs Act, 1969 and therefore such decision is liable to be struck down.
G. That the learned Respondent No. 1 has erred in law and ignore the crucial aspect of the case that under the Assessed Item Details of the Goods Declaration the appropriately officer of customs have confirmed the declared description of the goods which is "Tin Mill Black Plate (TMBP) steel in coils" which clearly proves that the description of the goods declared by the Appellant is correct.
Whereas, on other hand the PCT heading assessed by the appropriate officer is 7209.1810 which is not a specific heading for the above declared confirmed description of goods. It is submitted that by virtue of First Schedule to the Pakistan Customs Act, 1969 the goods which are classifiable under heading 7209.1810 are "Flat rolled products of iron or non alloy steel cold rolled (cold-reduced), not clad, plated or coated, whereas the impugned goods as confirmed by the appropriate officer is "Tin Mill Black. Plate (TMBP) secondary quality" which are specified under heading 7209.1891. Therefore since the appropriate officer has confirmed the description of the goods it is specified under heading 7209.1891 and hence the impugned order is liable to be set aside.
H. That the Respondent No.2 has illegally attempted to classify under a generic HS code 7209.1810 (- -- of secondary quality). The customs duty, additional customs duty and additional sales tax under the above proposed heading 7209.1810 is 20%, 7% and 2% respectively. It is submitted that the said illegal assessm ent of the Respondent No.2 under HS Code 7209.1810 is without any reasons or basis and this HS Code is not specified for the impugned goods but in generic description. The impugned goods i.e. tin mill black plate whether prime or secondary is specified under HS Code: 7269.1891 and therefore as per rules of interpretation in First Schedule to the Customs Act, 1969 the classification of the impugned goods is legally and appropriately classifiable under specific HS Code: 7209.1891 and not in a generic description under HS Code: 7209.1810.
I. That in terms of General Rules for interpretation of the First Schedule to the Customs Act, 1969 Act, 1969 "the heading which provides the most specific description shall be preferred to headings providing a more general description." Therefore by no process of reasoning and the respondent own interpretation the impugned goods could be assessed under HS Code 7209.1810.
J. That it is a well settled law in the Corpus Juris of Pakistan that specific description prevails over generic description. In this case the impugned description of goods is specified under HS Code: 7209.1891 and therefore by no process of reasoning the impugned goods could be classified under a generic description i.e. 7209.1810.
K. That it is also a well settled law that later part of statutes prevails over the earlier part of statutes due to the reason that the legislature is not short of words and therefore later part of the statutes will prevail as per the rules of Interpretation. In this case as per rules of interpretation of the First Schedule to the Customs Act, 1969, if there is a dispute in classification of impugned goods the later HS Code will prevail over the earlier HS Code.
L. That the act of the Respondents No. 2 is illegal unlawful and without jurisdiction and sheer violation of principles of natural justice hence be set aside.
5. Respondent filed parawise comments on grounds of memo of appeal which are reproduced as under:7
1. Regarding contents of Ground (A) it is respectfully submitted that Order passed by the Respondent No.1 is a valid, justified, speaking and lawful order. It is further submitted that a dispute was arisen with reference to correct classification of "Secondary Quality TMBP Steel in Coils". The matter was referred to Classification Committee. The Classification Committee examined the case of the basis of available record and in the light of relevant chapter/section Notes as well as the explanatory notes of Harmonized System of World Customs Organization and held that that secondary quality TMBP Steel Coil fall under PCT heading 7209.1810.
It is further submitted that the Honourable Supreme Court of Pakistan vide Order dated 22.08.2019 passed in Civil Petitions Nos. 12034 to 1204-L, 12184, to 1220-L of 2019 (The Commissioner Inland Revenue Lahore and others v. Nestle Pakistan Ltd. and others) discussed the competence and jurisdiction / authority of classification committee for determination of classification of a product and held as under:- "We have heard the learned counsel for the parties, and have gone through the record of the case, as well as, the law on the subject. We do not take exception to the reasons of the impugned- judgment which, therefore, does not warrant any interference. However. it is clarified for better working of the Customs Department in future, that if the Customs Act, 1969 Authorities wish to classify a particular product under the Pakistan Customs Tariff, the Competent Authority i.e. the Classification Committee will proceed in accordance with law to carry out classification of the said product. Disposed of".
2. That in view of the decision of the Honourable Supreme Court of Pakistan reported above, the contents of Ground (B) warrants no comments.
3. That in view of the submissions made hereinabove, the contents of Ground (C) warrants no comments. However, it is respectfully submitted that it was in the knowledge of the appellant that the matter was referred to Classification Committee for determination of appropriate classification of the imported goods. The appellant was to appear before the committee and presented his representation. Even otherwise, the Classification Committee issues notice to the relevant importers for taking input. It is further submitted that since the Classification Committee determined the appropriate classification of imported goods therefore, the assessment was finalized in accordance with the decision of the committee.
4. That keeping in view the contents of the Decision of the PCT Classification Committee and the Assessm ent Order, the contents of Ground (D) of the Appeal are incorrect, hence, denied.
5. That in view of the submissions made hereinabove, the contents of Ground (E) warrants no comments. However, it is respectfully submitted that the Classification Committee is the final authority for determination of classification of a product.
6. Regarding contents of Ground (F), it is respectfully submitted that as per classification scheme envisaged in PCT headings. 7210 of Customs Tariff, "secondary" steel products are chargeable to 20% customs duty while "prime" quality is assessed under "other" category and chargeable to 11% customs duty. In FY-2019-2020, one of the "other" sub-heading for prime quality (7209.1890, of 0.5 mm or less thickness) was bifurcated by creating two new local PCT headings, i.e. 7209.1891 and 7209.1899: PCT heading 7209.1891 (four dash) with description "tin mill back plate of thickness 0.3 mm or less", while PCT 7209.1899 (four dash) for "other" of the "prime" category. Accordingly, the imported "TMBP coils of secondary quality" were rightly assessed under correct PCT heading 7209.1810 by the Collectorate. The Collectorate's view point also gains strength from the fact that whenever a "child" PCT is created from parent "PCT", the "child" retains the main characteristics of the "parent", as evident in various FTA agreements where the agreed rate of, duty remains that of the "parent" PCT no matter how many different "child" PCTs are created locally for domestic economic considerations.
7. That in the light of submissions made above and keeping in view the facts / circumstances of the case the contents of Ground (G) of the "Appeal" is incorrect, hence, denied. It is, however, submitted that the answering respondent finalized the provisional assessment under PCT heading 7209.1810 in the light of the decision of the classification committee and security furnished at the time of provisional assessm ent was encashed in favour of government exchequer. The order passed by the Respondent No. I is well reasoned order, as such the allegation levelled by the appellant is frivolous, hence denied. It is humbly prayed that this Honorable Court may graciously be pleased to consider above submissions of the answering respondent and upheld the assessment order and order-in-appeal,
8. That in view of the submission made hereinabove, the contents of Ground (H) warrants no comments.
9. That keeping in view the contents of the Decision of the PCT Classification Committee and the Assessm ent Order, the contents of Ground (I) of the Appeal are incorrect, hence, denied.
10. That in the light of submissions made above, the contents of Para (J) of grounds of appeal are incorrect hence denied.
11. That in view of the submissions made hereinabove, the contents of Ground (K) warrants no comments.
6. I have heard both the parties at length. The main contention put forth by the counsel for the appellant is that the issue in question has already been settled / decided vide Judgment passed by this Tribunal in Customs Appeal No. K-804/2020 Messrs Shamim Tin Merchant v. The Collector of Custom (Appeal) an other , wherein the issue for classification of "Tin Mill Black Plate (TMBP)" has been settled. However, surprisingly after the above judgment the Collector of Customs, PMBQ, Karachi has forwarded this issue to the classification committee in which a hearing was fixed without giving notices to the stake holders including the appellant and without following the parameters laid down under Order II of Chapter 2 of Custom General Order No.12 of 2002 dated 15.06.2002. The learned counsel for the appellant further argued that the said committee was formed by the Collectorate themselves without any reference by an aggrieved party and within passage of two days only the provisional determination made on 09.05.2020 in the instant case was finally assessed on 11.05.2020 on the basis of Classification Committee's decision communicated vide letter No. C-155/KAPE/DC/PCT/2020 dated; 29.10.2020.
7. The issue pertains to the classification dispute of TMBP (Tin Mill Black Plate of thickness 0.30 mm or less) as to whether as per appellant version is classifiable under PCT heading 7209.1891 or as per respondent department version classifiable under PCT heading 7209.1810. I have gone through both the headings in the First Schedule to the Customs Act. 1969 (Pakistan Customs Tariff and Trade Controls) and observed that the heading under PCT 7209.1891 is a specific heading for "Tin mill black plate of thickness 0.30 mm or less" hence in this case as per examination report the goods imported in this case is "Tin Mill Black Plate of thickness 0.30 mm or less", whereas the heading relied upon by the respondent department pertains to " Flat-rolled products of iron or non-alloy steel, of a width of 600 mm or more, cold-rolled (cold-reduced), not clad, plated or coated" and under its sub-heading 7209.1810 "of secondary quality" which in this case is appropriately classifiable. It is thus clear from the examination report issued by the appropriate officer which is placed on record in into-bond GD No. KPPI-IB-7782 dated; 04.08.2020, the operative part is reproduced below: "Gd No: kppi-ib-7782-04-08-2020, container No: tclu2565616. Examined the goods on the basis of Gd/ data retrieved through weboc system, Description: tmbp steel in coils of secondary quality, 0.20066mm. 0.0079 gage, 32.8125 width (marked on label pasted on goods) qty 3 coils, r/sample is being forwarded to concerned group to check description, pct. classification and all other aspects. Brand and origin: not shown. Checked weight 100 found weight: 20860 kgs. Group to check pct. value and all other aspects. Group may check all aspects in the light of clear images (images are attached). Report pertains to only this container: tclu2565616."
8. It is evident that the appropriate officer has confirmed the physical description of the goods as "TMBP (Tin mill black plate of thickness 0.30 mm or less)" and falls under its specified PCT heading 7209.1891 read with rule 3(a) of General Rules for Interpretation of First Schedule to the Customs Act, 1969. In view of this, I am inclined to hold that the impugned goods consignment imported by the Appellant in this case falls tinder the PCT heading i.e. 7209.1891. I am fortified in holding so in being agreement with the findings of this Tribunal in its Judgment dated 16.05.2020 in Customs Appeal No. K-8054/2020. The operative part of it is reproduced below: The crux of the appeal are that there is main dispute between the rival parties is of PCT heading and mis-declaration of description of imported goods. The perusal of record shows that the learned Adjudicating Officer accepted the declared version of the appellant/ importer but same acceptance was challenged before the Collector Appeals who set aside the Order-In-Original and directed for assessment under PCT 7209.1810, therefore, the subject order was challenged before this forum. I have deeply gone through the both orders passed by the Collectorates of Adjudication and Appeals. I came to conclusion that the order' passed by the Adjudicating Authority is an appropriate order, therefore, I hereby upheld the same and set aside the Order-in- Appeal No.2649/2020 Dated; 04.05.2020 and allow the appeal of appellant."
9. Now referring to the decision of the committee communicated by the Additional Collector Chairman Classification Committee, MCC Appraisement and facilitation (East) vide dated; 29.10.2020, I fail to understand as to how a committee was formed without any reference by an aggrieved person and despite the fact that the dispute of classification of the impugned goods was settled by this Tribunal ibid. I further fail to comprehend as to how the decision of the committee could be made which was not even publicly communicated through any Public Notice as mandated under CGO No.12/2002.
10. In my view the decision of the Classification Committee, if any taken in respect of classification of impugned goods is to disregard, disrespect and sabotage the judgment of an appellate judicial forum which is the last fact finding authority under the Customs Act, 1969. I, hereby hold that the decision of the Classification Committee communicated vide letter No. C-155/KAPE/DC/PCT/2020 dated; 29.10.2020 is not sustainable under the law and cannot be made basis to assess the impugned goods/consignment.
11. Resultantly, the impugned Order-in-Appeal and final assessment are set aside / annulled. The Appeal is allowed and is disposed of accordingly.
12. This judgment consist of six (06) pages and each page bears my initials as well as official seal with full signature on the last page.