ABDUL JABBAR QURESHI (MEMBER JUDICIAL-I).---By this judgment, I intend to dispose of (18)
Customs Appeals bearing Nos.K-824 to 841/2022, filed by the appellant against Order-in-Appeal bearing .Nos.1237 to 1254 of 2022 dated 28.02.2022 passed by the Collector, Collectorate of Customs (Appeals), Karachi under Section 193-A(3) of the Customs Act, 1969 confirming the consolidated Order-in-Original bearing Nos.01 to 18 of 2021-22 dated 15-07-2021. These appeals have identical issues on law and facts, therefore, being heard, dealt with and disposed of simultaneously through this common order in the light of the judgment of the Honorable High Court of Sindh in Customs Reference No. 157 of 2008, S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Customs (Adj-1) and others. The Appellants appearing at serials Nos. 1, 3, 5, 7, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32 and 34 are Importers of goods and the Appellants appearing at serials Nos.2, 4, 6, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33 and 35 are their authorized Customs Clearing Agents, Since, the controversies/issues raised and prayers made by all the Appellants are the same, all the appeals were heard together, and I proceed to decide and dispose of all appeals by this common judgment.
2. The cases of all Appellants importers and their Customs Clearing Agents are identical nature, the brief facts of one of the identical case have been taken on record which are that the MCCA & F (East), Karachi vide its contravention report alleged that during post release audit it has been found that M/s Yousuf & Co., Karachi imported consignments of goods "2/s Coated Writing Paper in Sheets (gloss) (Nevia brand)" from China through their authorized Clearing Agent Messrs G.M.
International vide GDs as tabulated in the show-cause notice dated 12-04-2021 processed and assessed under section 80 of Customs the Act, 1969, subsequently, the post import clearance data of PRAT- (WeBOC) reveals that goods were assessed and released under tariff heading 4810.1910 attracting 20% customs duty reduced to 16% in compliance SRO 1640(1)/2019 dated 31-12-2020 on presentation of certificates of origin issued under China-Pakistan FTA grating 4% tariff concession which were actually classifiable under tariff heading 4810.1990 being not specifically meant for "Writing" and chargeable to 20% customs duty having no tariff concession under China-Pak FTA.
The classification declared on scan documents is in conformity with the classification determined by the Assessing Group, the Importer and its Clearing Agents deliberately misdeclared the tariff heading in the GD(s) and have evaded alleged duty/taxes. Accordingly, Messrs Yousuf & Co.
Karachi called upon the show-cause invoking provisions of Sections 32(1)&(2), 32A and 79 of the- Customs Act, 1969 read with sections 3, 6 and 7 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2000 for adjudication and recovery of alleged amount of duty/taxes and penal action under sections 156(1), (14), (14A) and (45) of the Customs Act, 1969 etc
3. The cases of all Appellants were adjudicated by the learned Deputy Collector, Collectorate of Customs (Adjudication-II), Karachi who passed a consolidated Order-in-Original Nos.01 to 18 of 2021-22 dated 15-07-2021 in case of M/s Yousuf & Co. Karachi applied the same mutatis mutandis to the cases of other Appellants being identical nature involving common controversies/issues against which the Appellants being aggrieved persons preferred appeals under section 193 of the Act, 1969 which were decided and disposed of by the Collector (Appeals), Karachi under section 193-A(3) of the Act, 1969 through Order-in-Appeal bearing Nos. 1237 to 1254 all of 2022 dated 28- 02-2022. The Appellants being further aggrieved with the aforesaid Orders-in-Appeal have preferred these appeals while praying to decide questions of law involved and raised in these cases on the facts of the cases and an the grounds as stated in their memorandum of appeals.
The common questions of law and grounds of an identical appeal are reproduced below:- QUESTIONS OF LAW INVOLVED AND PRAYED TO BE DECIDED IN THIS CASE:--
1. Whether in the facts and circumstances of the case the provisions of Sections 32(1)&(2) and 32A of the Customs Act, 1969 have been invoked in accordance with the law in the impugned show- cause notice for retrospective application of tariff heading 4810.1990 subsequently determined through an opinion given on 26-03-2021 by the Committee of Board having administrative functions on past consignments of subject goods already cleared being out-of-charged under section 80 of the Act, 1969?
2. Whether in the facts and circumstances of the case the tariff headings 4810.1910 and 4810.1990 have been correctly interpreted by the Collector of Customs (Appeals) for classification of subject goods under tariff heading 4810.1990 instead of 4810.1910 for levy and demand of duty/taxes in view of the judicial decisions/judgments of this Tribunal dated 27-11-2021 and 13-10-2021 having binding effect being passed in identical cases involving same issues/controversies as relied upon by the Appellants through statement dated 15-02-2022?
3. Whether the impugned Order-in-Appeal has been passed against the law of precedent and in violation of Article 25 of the Constitution, 1973 in terms of judicial decisions/judgments of this Tribunal dated 27-11-2021 and 13-10-2021 relied upon by the Appellants as being covered case?
4. Whether the impugned Order-in-Appeal and Order-in-Original are based on misreading and non-reading of facts, documents including statement dated 15-02-2022 and applicable law?
GROUNDS OF APPEAL:- A. That the contravention report pursuant to which the show-cause notice has been issued is arbitrary and illegal which is in defiance of Para-74 of CGO 12/2002 dated 15-06-2002 issued under section 223 of the Customs Act, 1969 having binding effect under which subsequent determination of classification based on administrative interpretation of tariff headings 4810.1910 cannot be applied retrospectively on the subject consignments of goods already cleared by the Customs without any objection of classification under section 80 of the Act, 1969. Reliance is made on reported judgments of High Court of Sindh, Karachi passed in case of Muhammad Waheed reported in 2016 PTD 35 as well as 2016 PTD 2910.
B. That contravention report and the show-cause notice issued thereon are illegal which are in defiance of common judgments passed by the Honorable Sindh High Court, Karachi cited in 2021 PTD 1430 and 2016 PTD 2910 having binding effect, wherein, it has already been held by the Court that subsequent determination of classification could only be applicable after issuance of public notice having no retrospective effect on consignments already cleared by the Customs without any objection of classification under section 80 of the Act, 1969.
C. That the show-cause notice is a foundational document for assumption of jurisdiction under the statutory provisions of Sections 32(1)&(2) and 32A of the Act, 1969, wherein, allegations of forgery, fraud, filing of any forged document knowingly and fraudulently by the Appellants or the allegation that Appellants had succeeded in evading alleged duty and taxes due to the collusion with Appraising Officer(s) are not framed, even the Department itself made admission of fact in the show-cause notice at para 4 that "classification i.e. 4810.1910 declared on scanned documents is in conformity with the classification determined by the assessing Group", hence, the mandatory requirement of statutory provision(s) has been not fulfilled in this case while invoking aforesaid provisions which entailed the entire proceedings being corum non judice and rendered the entire exercise of the Authorities below being ab initio void, illegal and without jurisdiction. Reliance is made on 2011 SCMR 1279 = 2011 PTD 2220; 2010 PTD 1216 and 2013 PTD (Trib.) 600.
D. The impugned order and not sustainable in law as per dictum laid down by the apex Courts that "provisions of section 32 not invokable for framing charge of misdeclaration in the matters of interpretation of statutory provision i.e. tariff headings being part of First Schedule to the Customs Act, 1969". Relied upon common judgment of the Honorable Sindh High Court, Karachi cited in 2021 PTD 1430.
E. That the impugned order-in-appeal has been discriminatorily passed against the law of precedent by the Collector of Customs (Appeals) who with the male fide intention has neither considered the statement filed during hearing on 15-02-2022 nor followed the judgments/orders of this Tribunal dated 27-11-2021 and 13-10-2021 passed in identical cases/appeals having binding effect, wherein, the question of law No.1 involved and raised in this case has already been adjudicated and decided in favour of the importers.
F. That the Authorities below while passing impugned orders mala fidely ignored and made defiance of referred judgments of High Court of Sindh, Karachi passed in two identical cases 2021 PTD 1430 and 2016 PTD 2910 having similar controversy of application of classification of goods subsequently determined after customs clearance of goods, the Honorable Court has already held in its judgments passed in aforesaid cases that "subsequent determination of classification could only be applicable prospectively after issuance of public notice having no retrospective effect as required to be issued under para-2 of CGO 12/2002". Therefore, the impugned orders influenced by the report/opinion of the Classification Committee of Board having adminisrative functions made subsequently on 26-03-2021 is illegal and not in accordance with the law laid down by the High Court.
G. That the impugned order has been passed in arbitrary and illegal manner without considering the grounds, contentions and supporting documents submitted through written response/reply and re-joinder by the Appellant.
H. That the Adjudicating Officer has passed the impugned order without giving any fact finding and in absence of any adverse material or evidence, wherein, charges enumerated in the show cause notice including criminal charge of misdeclaration of classification have been arbitrarily and illegally established against the Appellants. Therefore, the impugned order is illegal and not sustainable in the light of law laid down in the judgment of Honorable Supreme Court passed in case of Collector of Customs v. Pakistan State Oil reported in 2011 SCMR 1279 = 2011 PTD 2220 as well as judgment of Sindh High Court passed in case of Muhammad Waheed v. Customs Appellate Tribunal reported in 2016 PTD 35.
That while passing impugned orders the Authorities below have deliberately not appreciated that contravention case of misdeclaration of classification has been made after departmental practice of classification, assessm ent and customs clearance of More than 250 consignments of identical goods under HS Code 4810.1910 which was based on lab test reports and departmental interpretation of tariff headings. Whereas, the criminal provisions of Sections 32(1) (2) and 32A of the Customs Act, 1969 along with penal provisions of Sections 156(1)(14), (14A) and (45) invoked in this case are also in violation of para 101(5) of CGO 12/2002 dated 15-06-2002 issued under Section 223 of the Act, 1969 having binding effect on the Respondent. Therefore, the impugned order is arbitrary, illegal and not sustainable in law as the Hon'ble High Court Sindh in the case of Messrs Sadat Khan v. FOP and others reported at 2014 PTD 1615 has already held that "it is settled proposition of law that an interpretation of a notification as well as the classification of the goods does not fall within the definition of mis-declaration".
J. That the consignments of goods were imported from china having description "Two Side Coated Writing Paper" covered under SRO 1640W/2019 issued under Pak-China FTA supported with the uncontroverted certificates of origin issued by the. designated Government Authority of China, wherein, the HS Code 4810.19 and national HS Code 4810.1910 in respect of subject goods have been specifically mentioned for classification and the same were declared by the Appellants while filing goods declarations under section 79 of the Act, 1969 which were checked under section 80 of the Act, 1969 by the Customs who issued Assessment Orders after satisfaction that imported goods classifiable under HS Code 4810.1910, hence, there was no any misdeclaration of classification made by the Appellant.
K. That while passing impugned orders the Authorities below have not considered the facts apparent on record that no any import document i.e. invoice and certificate of origin contained HS Code 4810.1910 submitted before the Department at the time of. filing of GDs have been controverted instead there is an admission of fact on part of the Customs mentioned in the show- cause notice that "the classification declared on the scanned documents is in conformity with the classification determined by the Assessing Group". Hence, the impugned orders establishing charge of misdeclaration against the Appellants are prima facie illegal and arbitrary.
L. That in the impugned orders the Authorities below have not applied their independent judicious mind who mis-interpreted the Rule 3 of the General Rules of Interpretation of Harmonized System under which the subject goods are/were classifiable under HS Code 4810.1910 reference can be drawn from the consignments of identical goods of Japan origin having declared description "Both Side Coated Paper" assessed and cleared by the Customs under HS Code 4810.1910.
M. That the Collector of Customs (Appeals) has acted contemptuously and illegally in this case who intentionally has neither mentioned the statement of the counsel of the Appellants filed during the hearing fixed on 15-02-2022 through which both judicial decisions/judgments dated 27-11-2021 and 13-10-2021 passed in identical cases/appeals by this Tribunal were submitted as precedent while contending that this case is fully covered with these judicial decisions/judgments having binding effect against which no supervening order of High Court is operating nor any finding has been given thereon to distinguish the same as precedent under Article 25 of the Constitution, 1973 in its order-in-appeal dated 28-02-22 passed contemptuously against the law of precedent as well as rule-of consistency.
N. That the classification of goods is the mixed question of law and facts relating to interpretation of statutory provisions i.e. tariff headings being part of First Schedule to the Customs Act, 1969 which in this case has already been decided by this Tribunal in its judicial decisions/judgments dated 27-11-2021 and 13-10-2021 passed while discharging judicial functions entrusted under the Customs Act, 1969 being a Court as per dicta laid down by the Hon'ble High Court in its judgments cited in 2000 YLR 2724 and PLD 2020 Sindh 284, hence, the impugned orders and baseless findings given therein are not sustainable and illegal after such judicial decisions/judgments assumed status in rem which have been made on finding of facts after considering the relevant law and rules by this Tribunal being final fact finding Authority in the hierarchy of the Customs Act, 1969.
Reliance is made on judgment of Hon'ble Supreme Court of Pakistan cited in 2020 SCMR 649.
O. That the findings of facts recorded by this Tribunal generally in its judicial decisions/judgments dated 27-11-2021 and 13-10-2021 have attained finality on the ground that neither question of law has been raised by the Department in its SCRAs 38/2022 and 137/2021 challenging such findings of facts of the Tribunal as being not supported by any evidence or being perverse nor any supervening order is available with the Department suspending such findings and judicial decisions/judgments must required to be followed by the Collector of Customs (Appeals) haying binding effect. Reliance is made on judgment in rem of Supreme Court dated 03-02-2022 passed in 2022 SCMR 1082 = 2022 PTD 1079 [C1R v. M/s. Sargodha Spinning Mills (Pvt.) Ltd.].
P. That as per dicta laid down by the Hon' able Supreme Court of Pakistan in its judgment cited in 2020 SCMR 649 and in terms of mandatory direction of the Board already given in Para 2(ix)(a) of the CGO 12/2002 dated 15-06-2002 the opinion/report of Board's Committee, Public Notice No.01/2021 dated 27-11-2021 and the interpretation of such tariff headings made by any Authority below have become invalid after judicial decisions/judgments dated 27-11-2021 and 13-10-2021 contained judicial interpretation of tariff headings 4810.1910 and 4810.1990 made by this Tribunal while discharging judicial functions entrusted under the Customs Act, 1969 being a Court and final fact finding authority.
Q. That while passing impugned orders the Authorities below have intentionally ignored the fact apparent from the 'perusal of case file of a consignment of identical goods having GD No. KAPB- HC-63174 dated 17-10-2020 of M/s. Salman Paper Products (Pvt.) Ltd., Karachi who is the Appellant in the judicial decision/judgment dated 27-11-2021 of this Tribunal that certain observations have been given by the concerned officers of the Respondent Department who were/are of the view that "since the Board has created a separate heading ' i.e. 4810.1910), it is construed that 2/side coated paper' for writing purpose also exists, which could have other uses as well, accordingly, it is proposed that, we may release the goods on the strength of manufacturer certificate that the impugned goods are writing paper and keeping in view past practice of classification". Such observations of the Respondent's own officer prima facie establishing the case of the Appellants regarding interpretation of tariff heading 4810.1910 and classification of subject goods thereon.
Moreover, there is no material evidence available on record to establish as to why the Board has created separate tariff heading 4810.1910 for writing paper, evidently this fact was never controverted by the Respondent before Authorities below who have acted arbitrarily while passing impugned orders. Reference made to the para-22 of the judgment of this Tribunal dated 27-11-2021 passed in referred identical case/appeal.
R. That while passing impugned orders the Authorities below have not appreciated and considered the fact that tariff heading 48.10 has two kinds of goods one is coated paper and the other is coated paperboard, whereas, the coated paper of a kind if usable for writing is classifiable under tariff heading 4810.1910 and the coated paperboard or any other coated paper not usable for writing are classifiable under residual, tariff heading 4810.1990.
S. That the facts and circumstance of this case as well as the issues involved are identical to the cases already adjudicated and decided by this Tribunal vide judicial decisions/judgments dated 27-11-2021 and 13-10-2021 which have binding effect in terms of Article 25 of the Constitution, 1973, rule of consistency and law of precedent, therefore, the case of the Appellants being covered case would require similar treatment and disposal particularly to the extent of issue/controversy of classification of subject goods under tariff heading 4810.1910 which has already decided in favor of the importers of identical goods of same brand and origin.
T. That the impugned Order-in-Appeal is illegal and against the dicta laid down by the Honorable High Court Peshawar in its judgment cited in 2006 CLC 1555, wherein, it has been categorically held that "When either a law is interpreted, or a principle of taw is expounded, or certain facts are generally declared covered by some law or by some principle of law, justice or equity, these judgments, to the extent of above, become judgment in-rem also, and all the similarly placed persons become entitled to the benefit of the same". As in this case, the issues/controversies involved are have already adjudicated and decided by this Tribunal in judicial decisions/judgments dated 27-11-2021 and 13-10-2021 having binding effect passed in identical cases involving same issues/controversies including classification of subject goods identical in nature relating to interpretation of tariff heading 4810. 1910 and 4810.1990.
U. That the contravention case and show-cause notice are being confronted to the extent of Appellant No.2 on the ground that the Customs Agent while doing Customs business in normal course of his business filed goods declarations based upon documents and information provided by the Appellant No.1 who could not be held to be a privy to any illegal arrangement which the Appellant No.1 might have advised or had in his mind, and where it is not established that the Customs Agent was directly or indirectly beneficiary of evasion of taxes through material evidence it could not be hold, that Customs Agent liable for the act of commissions or omissions on part of the Appellant No.1 for which he could not be punished with penalties. In the instant case neither any material evidence has been placed on record establishing the allegation of criminal charge of misdeclaration of classification against the Appellant No.2 nor he is liable to be punish with penalty imposed on him in the impugned order illegally. Reliance is made on judgment of Lahore High Court in case of Ports Ways Customs House Agents v. Collector of Customs reported in 2002 YLR 2651.
V. That the findings of facts given by the Authorities below are not supported any cogent evidences or material which are perverse and not sustainable and the same are also erroneous and structured on non-reading and mis-reading of facts, documents and relevant law particularly the statement of the Counsel of the Appellants filed on 15-02-2022, but, intentionally concealed and not considered in the impugned Order-in-appeal.
W. That the grounds of the Appellants advanced before the Authorities below in writing and otherwise shall be read and considered as part of this appeal while deciding the case of the Appellants.
X. That the appeal is being filed within the period of limitation provided under Section 194-A of the Act, 1969.
Y. The prescribed Appeal fee has been deposited.
Z. The Appellant craves permission to submit any documents, raise or urge further grounds at the time of hearing of the case.
4. That the Respondent Department supported impugned Orders-in-Appeal and Order-in-Original and filed pars-wise comments through Assistant Collector of Customs (Group-III), Collectorate of Customs Appraisement (East), Karachi which have been taken on record, copies supplied to Counsel of the Appellants to go through the same. The Counsel of the Appellants contended that the main controversy of classification of imported goods relating to the judicial interpretation of tariff headings 4810.1910 and 4810.1990 and allegation of misdeclaration involved in all these cases of identical nature have already been adjudicated and decided ,by the Single and Division Benches of this Tribunal in judgments dated 13-10-2021 and 27-11-2021 passed in identical appeals bearing Nos.K-7418/2021 and K-7417/2021 against which no supervening or stay order have been passed by any Court having jurisdiction. The Counsel prayed that the cases of the Appellants being identical in nature are fully covered with the aforesaid judgments already delivered by this Tribunal on the common controversy of classification of identical goods imported by all the Appellants and the allegation of misdeclaration also involved in these cases of the Appellants would be decided and disposed of in similar terms as per rule of consistency as well as rule of equal protection of law in terms of Article 25 of the Constitution of Pakistan, 1973 who made reliance on Lahore High Court's judgment cited in 2001 CLC 385 and 2007 PTD 671. The Counsel of the Appellants further contended that order dated 16-09-2021 passed by the Honorable High Court of Sindh, Karachi in C. P. No D- 5578/2021 [Messrs Bilal Traders v. Federation of Pakistan and others] has been set aside by the Honorable Supreme Court of Pakistan vide order dated 13-04-2022 passed in Civil Petition No.5489/2021. The Counsel while making reliance on order dated 0302-2022 passed by the three members Bench of Honorable Supreme Court of Pakistan in 2022 SCMR 1082 = 2022 PTD 1079 [CIR v. Messrs Sargodha Spinning Mills (Pvt.) Ltd.] finally contended that the Honorable Supreme Court already held that the Appellate Tribunal is the final fact finding body and its finding of facts are conclusive, the Counsel argued that the common fact finding has already been given by this Tribunal on the common controversy of classification of imported goods identical in nature which involved mixed question of law and facts.
5. The D/R appearing on behalf of the Respondent Department while reiterating on para-wise comments supported the impugned Orders-in-Appeal as well as consolidated Order-in-Original, but, could neither been able to either distinguish the cases of the Appellants with the cases already decided by this Tribunal in two judgments dated 13-10-2021 and 27-11-2021 passed in identical Appeals beating Nos.K-7418/2021 and K-7417/2021 or placed on record any order of competent Court suspending the operation of the aforesaid judgments of this Tribunal.
6. I have heard the arguments and contentions of both sides and examined and perused the facts of the case and record, grounds of appeals, questions of law involved and para-wise comments of the Department and considered the case laws/judgments relied upon by the Appellants. It has been observed that grounds of Appeals Nos. K, L, M and N have neither been controverted by the Respondent in its para-wise comments nor during arguments, consequently, these grounds found sustainable which establishing the prima facie case of the Appellants and supporting the argument of the Counsel that all cases being identical in nature are fully covered with the judgments dated 13-10-2021 and 27-11.2021 passed by this Tribunal in Identical Appeals bearing Nos. K-7418/2021 and K-7417/2021 involving same controversies already-adjudicated and decided under section 194-B read with 194-C(4) of the Act, 1969. On perusal of record, it is found that no discriminatory treatment could be given in all these identical cases, wherein, the Appellant Importers had imported identical goods having description "2/s Coated Writing Paper in Sheets (Gloss) (Nevia brand)" of China origin as mentioned in the show-cause notice. It has been noticed that the declarations made by the Appellants under section 79 of the Act, 1969 regarding description of goods and their classification HS Code 4810.1910 were accepted by the Respondent while passing order(s) under sections 80 and 83 of the Act, 1969.
7. It is observed that the import document(s) of imported goods i.e. invoice(s) packing list(i) and certificate(s) of origin issued by the competent Authority of exporting Country for entitlement of tariff concession under China-Pakistan FTA which reflecting description of goods i.e. 2/s coated writing paper in sheets (Nevia brand) and classification HS Code 4810.1910 have not been confronted by the Respondent at any stage. It appears before me that the Department exercised its supervisory powers of checking of goods declaration(s) and passed final assessment order(s) under sections 80 read with .83 of the Customs Act, 1969 in respect of more than 250 consignments of identical goods including consignment(s) which are subject matter of these appeals which were neither assailed by the Customs under section 193 nor reopened under section 195 of the Customs Act, 1969, significantly, prior to issuance of show-cause notices, wherein, there is an admission of fact on part of the Customs that "the classification declared on the scanned documents is in conformity with the classification determined by the Assessing Group".
8. I have also found that though provisions of Sections 32(1)&(2) and 32A of the Customs Act, 1969 have been invoked in the show-cause notices, but, there is no allegation of filing of any forged document(s) or short payment of duty and taxes by the Appellants in collusion with some Customs Officers rather there has been a dispute of classification of imported goods relating to interpretation of tariff heading 4810.1910 subsequently arise out for which a Classification Committee constituted on 01-01-2021 by the Board comprising Customs Officers discharging their duties under the administrative control of the Board. The Committee of the Board while interpretating tariff headings 4810.1910 and 4810.1990 given an opinion that such goods having identical features falls appropriately under tariff heading 4810.1990 instead of 4810.1910 being not specifically meant for 'Writing" having multiple uses. The opinion of the Committee was reported to the Board on 26-03-2021 for necessary action i.e. approval and issuance of public notice as per procedure contained in Para-2(vi)&(viii) of CGO 12/2002 dated 15-06-2002. It is an uncontroverted fact that while issuing show-cause notices no sample(s) of imported goods were available with the Department to examine the physical attributes of the goods for the purpose of determination of classification. It is well settled law that classification of goods is a mixed question of law and fact and so also of interpretation of statutory provision i.e. tariff heading which is part of First Schedule to the Customs Act, 1969; hence, there could always be a difference of opinion in interpreting the same administratively or judicially. It is not that it always will be case of mens rea and imposition of penalty if interpretation of tariff heading for classification of goods not accepted by the Department subsequently or otherwise. It appears that in such case how an allegation of misdeclaration and imposition of penalty can be made out and sustained is beyond comprehension as observed by the Honorable High Court of Sindh in its judgment in rein cited in 2021 PTD 1430. Based on the above, the case of the Appellants doesn't falls within the ambit of Sections 32(1)&(2) and 32A of the Customs Act, 1969 which have been invoked in the show-cause notice against the settled law without fulfilling the mandatory statutory requirements and in absence of any adverse material evidence. Reliance in this regard is rightly made on judgment of Honorable Supreme Court of Pakistan cited in 2011 SCMR 1279 = 2011 PTD 2220.
9. It is also appears from the perusal of Customs tariff that tariff heading 4810.1910 as claimed by the Appellants and 4810.1990 as claimed by the Respondent have no difference in the rate of customs duty. The only consequence or difference between these two tariff headings is that if the goods are classified under the later tariff heading 4810.1990, the subject goods were not allowed 4% tariff concession under China-Pakistan FTA as per SRO 1640(1)/2019 dated 31-12-2019, as apparent from the imports of identical goods made from Japan having declared description "Both Side Coated Paper in Sheets" which were assessed, classified and cleared by the Customs under the same tariff Heading 4810.1910. This position has not been controverted by the Department who failed to explain such discriminatory treatment and difference of opinion in its parawise comments.
Such conduct on part of the Respondent while alleging criminal charge of misdeclaration of tariff heading for classification of imported goods doesn't seems to be appropriate and in accordance with the law which appears to be tainted with mala fides, or for some extraneous reasons. Such acts of the Respondent are observed to be in violation of directions of the Board given in Para 101(B) of CGO No.12/2002 dated 15-06-2002 which are binding on all the officers of the Customs employed in the execution of Customs Act, 1969 by virtue of provision contained in Section 223 of the Customs Act, 1969 who were/are required to follow directions of the Board being mandatory in nature while invoking provisions of misdeclaration under section 32 of the Customs Act, 1969 against an Importer. The Honorable High Court of Sindh, Karachi has already given some observations in this regard in its judgments cited in 2016 PTD 35. Whereas, Para 101(B) of CGO No.12/2002 particularly deals with question of taking cognizance of description, value and HS Code.
The relevant portion read as under:-
(B) Question of taking cognizance of misdeclaration of description, value and tariff heading,-- For invoking provisions of misdeclaration under section 32 of the Customs Act, 1969 prima fade an element of mens rea should be present i.e. there should be an attempt of willful false declaration.
The Importer may not be charged for misdeclaration under section 32 of the Customs Act, 1969, in the following situation:-
(i) Where and Importer makes a correct declaration on bills of entry opts 1st appraisement for determination of correct description, of tariff heading or quantity of goods.
(ii) When a consignment is found to contain goods of description other then the one declared falling under separate tariff heading but chargeable to same rate of duty. (Emphasis supplied).
(iii) Where the description of the goods is as per declaration but incorrect tariff heading has been mentioned in the bill of entry no misdeclaration case under section 32 of the Customs Act, 1969, be made out provided there is no change in the rate of customs duty as a result of ascertained tariff heading. These observations were set as bench mark to decide the controversy of same nature.
10. I have firm opinion that the directions of the Board contained in CGO 12/2002 dated 15-06-2002, though not binding upon the authorities performing quasi judicial functions, but such directions are mandatory in nature and are binding upon the functionaries and field officers discharging their functions and duties under the Customs Act, 1969 relating to administrative matters in terms of Section 223 of the Customs Act, 1969. It is settled proposition that the field officers of FBR are not authorized to act as per their own discretion in a situation, wherein, FBR has already issued directions and or guidelines. After considering the issue in depth in line with settled principles of law, any act of the field officers in violation of such mandatory directions would be illegal and of no consequences. Reliance in this regard is made on the judgment of Honorable Supreme Court cited in 1993 SCMR 1232 as well as on the judgments of Honorable High Court of Sindh, Karachi cited in 2003 PTD 2090, 2016 PTD 35 and 2021 PTD 1430.
11. Being a custodian of law' it is the duty of this...Tribunal having judicial functions and powers which is deemed to be a Court to dispense the justice, by doing so, the scrutiny of case record reveals that the goods imported by the Appellants were classified, assessed and released as per interpretation of tariff heading 4810.1910 made by the Department while passing assessment order(s) under section 80 read with 83 of the Customs Act, 1969 which were neither assailed under section 193 nor reopened under section 195 of the Customs Act, 1969. Issue of interpretation of tariff heading 4810.1910 was raised subsequently for, classification of imported goods in absence of any lab report of sample of imported goods or post clearance audit report of Directorate PCA (South), Karachi in terms of SRO 501(I)/2009 dated 13-06-2009. It is also noticed that opinion of Classification Committee of the Board was issued on 26-03-2021 determining appropriate tariff heading 4810.1990 for classification of identical goods was subject to the approval by the competent authority and issuance of public notice as per procedure and directions contained in Para-2(vi)&(viii) of CGO 12/2002 which was issued on 27-11-2021 after making judicial decision on 13-10-2021 and 27-11-2021 in identical cases by this Tribunal. Issuance of Public Notice subsequently on 27-11-2021 to notify the opinion of the Classification Committee for its application in rem on all imports of goods is apparently contemptuous and defiance direction of Board contained and notified in Para-2(ix)(a) of CGO 12/2002 dated 15-6-2022 having binding effect on all the officers of the Customs employed in the execution of Customs Act, 1969 by virtue of provision contained in Section 223 of the Customs Act, 1969.
12. The record shows that the Respondent Department has not placed on record any adverse material or evidence against the Appellants who are Customs Clearing Agents which could established without any reasonable doubt that they were directly or indirectly the beneficiaries of alleged misdeclaration of HS Code and allegedly evaded duty/taxes thereon which is the basic requirement of issuance of show-cause notices and imposition of penalties against such person in the impugned orders. In this regard the case of Port Ways Customs House Agents v. Collector of Customs reported in 2002 YLR 2651 is relevant, wherein, the cases of the Appellants being Customs Clearing Agents are apparently covered. It is also found that neither separate show-cause notices have been given to the Appellants who are customs clearing agents to make out cases of misdeclaration of HS Code and evasion of duty/taxes against them nor there is any allegation that import documents supplied by the Appellant Importers were fake or forged on the basis of which goods declarations under section 79 of the Customs Act, 1969 were filed by the Appellants being their Customs Clearing Agents Moreover, the relevant import documents submitted with the goods declarations reflecting description of goods, HS Code, quantities and transactional values could not be distinguished by the D/R with the declarations of such particulars and self-assessments of duty/taxes made under Section 79 of the Act, 1969 subject to checking by the customs in exercise of supervisory powers provided under section 80(1) of the Customs Act, 1969. Hence, the cases of the Appellants being Customs Agents neither falls within the ambit of Sections 32 and 32A of the Act, 1969 nor imposition of penalties is sustainable against them under the law.
13. The Honorable Sindh High Court while exercising its reference jurisdiction has recently decided bunch of similar cases through its common judgment in rem cited in 2021 PTD 1430, wherein, particular question of law that "Whether subsequent determination of classification of goods by the Classification Committee through public notice would apply retrospectively?" which is also involved in 'these cases has been decided and answered as negative in favor of the Importers and against the Department. As per facts and circumstances of the these cases being admittedly similar in nature the dictum laid down by the Court in the above judgment is applicable in terms of law of precedent. In view of my above finding and as per dictum laid down by the Apex Courts in the cited judgments and as per rule of equal protection of law envisaged under Article 25 of the Constitution of Pakistan, 1973 and by following law of precedent, I hereby decide the question of law No. (1) in negative, in favor of the Appellants and against the Respondent Department by holding that no case of misdeclaration and fiscal fraud in terms of Sections 32(1)&(2) and 32A of the Customs Act, 1969 found established against the Appellants and interpretation of tariff headings'
4810.1910 and 4810.1990 for classification of imported goods subsequently made for the purpose of levy and recovery of duty and taxes by the Adjudicating Authority is not sustainable in law which appears to be based on opinion given on 26-03-2021 by a Classification Committee of Customs Officers discharging their duties under the administrative control of the Board which has already become invalid in terms of mandatory direction of the Board notified in Para-2(ix)(a) of CGO 12/2002 and the same could not be given effect on the goods imported by Appellant Importers retrospectively or otherwise.
14. The question of law No. (2) raised by the Appellants is relating to the subsequent interpretation of tariff headings 4810.1910 and 4810.1990 for classification of subject goods for the purpose of duty/taxes and recovery thereof has already been adjudicated I and decided by this Tribunal under Section 194-B read with 194-C(4) of the Act, 1969 in the judgments dated 13-10-2021 and 27- 11-2021 already passed and authored by me in Identical Appeals bearing Nos.K-7418/2021 and K- 7417/2021 involving same controversy of classification of identical goods having same features against which no supervening or stay order has been passed by the competent Court. The relevant part of finding given by Division Bench of this Tribunal in Appeal bearing No. K-7417/2021 while deciding the issue reproduced below is as under:-- "III. Whether the impugned order correctly passed by the Adjudicating Authority and correctly interpretated tariff headings 4810.1910 and 4810.1990 for the purpose of classification of subject goods for recovery of impugned duty/taxes thereon?"
"17. We have observed that entire case of classification of subject goods having description "2/s Coated Writing Paper in Sheets (Nevia Brand)" turns on the judicial interpretation of statutory provision i.e. tariff heading 4810.1910 of heading 48.10 which is part of First Schedule to the Customs Act, 1969, for clarity and to ease reference the same are being reproduced as under:- 48.10 Paper and paperboard, coated on one or both sides with Kaolin (China Clay) or other inorganic substances, with or without a binder, and with no coating, whether or not surface, coloured, surface-decorated or printed, in rolls or rectangular (including square) sheets, of any size. first single dash - heading of HS Code 48.10 reads as "Paper and paperboard of a kind used for writing, printing or other graphic purposes, not containing fibers obtained by a mechanical or chemi-mechanical process or of which not more than 10% by weight of the total fiber content consists of such fibers".
The above single dash - heading is further sub-divided into three double dash -headings. --- in rolls: --- in sheets with one side not exceeding 435mm and the other side not exceeding 297mm in the folded state. -- Other: That the third double dash heading "Other" sub-divided into two --national headings:- 4810.1910 --- Writing Paper 4810.1990 --- Other:
18. We have perused the above tariff headings and contents mentioned therein and consider the applicable rules and principles of statutory interpretation for the purpose to adjudicate and decide issue No. (III) relating to judicial interpretation of tariff heading 4810.1910 for classification of subject goods being final fact finding authority having judicial functions entrusted under the Customs Act, 1969. We have observed that (--) sub-heading 4810.1910 provides specific description "Writing Paper" which spelled out two conditions to be fulfilled, one is coating with Kaolin (China Clay) or other inorganic substances not containing fibers obtained by a mechanical or chemi-mechanical process or of which not more than 10% by weight of the total fiber content consists of such fiber and the other is it's usage for writing. There is no dispute between the parties regarding fulfilment of first condition of coating and fiber content. The dispute between the parties relates to the fulfilment of second condition, the stance of the Appellant is that tariff heading 4810.1910 has been created for such coated paper having one of its use as writing paper, on the other hand, the stance of the Respondent and finding of the Adjudicating Authority are that coated paper exclusively meant for writing having no multiple usage is classifiable under this heading. The test reports including test report of HEJ dated 01-02-2021 available at page-431 to 451 of subject goods obtained by the Respondent have also been perused by us which shows resulting remarks "Wood free writing paper" and in the test report HEJ dated 01-02-2021 there is a note that "the International Standards Technical Association of the Pulp and Paper Industry and American Society for Testing and Materials have no reference to differentiate between the writing and printing paper".
19. The due consideration has also been given to the un-confronted certificate of the manufacturer of subject goods dated 03-11-2020 available at page-413 called by the Respondent during the processing of. GD bearing No. KAPE-HC-63174-17- 10-2021 filed in respect of a consignment of subject goods of the Appellant from which the whole case of classification was arose, it appears before us that the foreign Manufacturer/Supplier M/s. Gold East Paper (Jiangsu)
Co, Ltd, China has certified that "Our 2/s coated paper is coated on wood free writing paper both side, each side coating not less then 18% with Kaolin (China Clay) or other inorganic". The deference of opinion and an element of discrimination has been observed by us on perusal of the assessment orders/GDs of identical goods imported from Japan having declared description "Both Side Coated Paper in Sheets" available at page-415 to 419 which disclosing that Customs Department classifying and assessing such goods under same tariff heading 4810.1910 on the basis of same interpretation made by the Appellant as well as this Tribunal in identical appeal K- 7418/2021. The contents of Valuation Ruling bearing No.1354/2021 dated 27-05-2021 available at pages 477485 have also been considered, wherein, tariff heading 4810.1990 has been preferred for valuation of paperboard coated with one/both side with Kaolin (China Clay) and paper of such kind has been valued by preferring tariff heading 4810.1910 which supports the stance and contentions of the Appellant. The findings of the Classification Committee as well as the Adjudicating Authority are similar which appears to be based on presumptions and assumptions, we observed that there is no iota of evidence available nor produced or referred before us which could support or justify the interpretation of tariff heading 4810.1910 being made by both the Customs Authorities for classification of subject goods.
20. On perusal of case record it reveals that subject goods were imported from China in respect of which Chines Certifying Authority issued Certificates of Origin under Rules 6 and 7 of Operational Certification Procedures for the Rules of Origin of the China-Pakistan Free Trade Area for eligibility of preferential concession of goods (FTA Tariff concession of 4% customs duty under SRO 1640(1)/2019) under Rule 12 of Rules of China-Pakistan Free Trade Area available at pages-95 to 125, wherein, both international and national HS Codes 4810.19 and 4810.1910 respectively have been mentioned as determined by the Certifying Authority which have not been confronted by the Department at any stage of the case who in case of apprehension of any fraudulent practices were under obligation to rake up the matter with Chines Authorities for clarification as provided under Rules 21 and 22 of aforesaid Rules of PTA as clarified by the Ministry of Commerce vide Office memorandum dated 17-07-2014 available at page-127. The case record also reveals that no any import document i.e invoice and certificate of origin contained HS Code 4810.1910 submitted before the Department at the time of filing of GDs and assessments were confronted instead there is an admission of fact on part of the Customs stated in Para-4 of the show-cause notice that the classification declared on the scanned documents is in conformity with the classification determined by the Assessing Group". It is also apparent from the case record that the Department has not controverted an important fact that similar dispute of classification of subject goods was raised while processing and assessments of two consignments having GD Nos. KAPE-HC-46565 dated 19-09-2020 and KAPE-HC-5 7541 dated 08-10-2020 available at pages 15 7-185, wherein, while following directions contained in Para-2(i) of CGO No. 12/2002 dated 15-06-2002 the Department after adopting due process was of the opinion that tariff heading 4810.1910 was the appropriate heading for classification of subject goods.
21. ft is also important to observed after perusal of case file of a consignment of subject goods having GD No. KAPE-HC-631 74 dated 17-10-2020 of the Appellant having certain observations given by the concerned officers of the Respondent available with better copies at pages 139-153, wherein, there are admissions of facts on part of the concerned officers that almost 250 consignments of such goods were classified and cleared under tariff heading 4810.1910 who were of the view that "since the Board has created a separate heading (i.e 4810.1910), it is construed that 2/side vetted paper for writing purpose also exists, which could have other uses as well, accordingly, it is proposed that, we may release the goods on the strength of manufacturer certificate that the impugned goods are writing paper and keeping in view past practice of classification". Such observations of the Respondent's own officer prima facie establishing the case of the Appellant regarding interpretation of tariff heading and classification of subject goods.
Moreover, there is no material evidence available on record to establish as to why the Board has created separate TARIFF heading 4810.1910 for writing paper, evidently this fact was never controverted by the Respondent during the hierarchy of the customs as well as before this Tribunal, no evidence privy to it is available at paras 26 and 27 of the reply of show-cause notice which is available at pages 345-375 of the case file.
22. Now it important to understand the legal rational prescribed under the GRI Rules of Interpretation. Rule 3 of the GRI Rules of Interpretation in its sub-rule (a) provides guideline that heading which provides the most specific description of an article shall be preferred for classification rather heading providing more general description. We read the above findings and perused the record and documents available on record in juxtaposition position with the Rule 3(a) of the GRI Rules and observed that subject goods falls under tariff heading 9810.1910 which provides most specific description i.e. Writing Paper which has also been mentioned in all import documents never confronted by the Department at any stage of the case. Moreover, no justification has been given by the Respondent regarding deviation from previous practice of classification of subject goods of Chines origin under tariff heading 4810.1910 as well as identical goods being imported from Japan having declared description both side coated paper in sheets.
It is also observed that while passing impugned order reliance was made on Note 7 to Chapter 48 of the Pakistan Customs Tariff which has reference to distinguish classification at heading level which is inapplicable in this case where there is no dispute that subject goods are not classifiable under heading 48.10. In view of our findings and after considering relevant documents and case record the interpretation of the Adjudicating Authority as well as Department leads to the redundancy of TARIFF heading 4810.1910, on the other hand, the interpretation made by this Tribunal in its judgment dated 13-10-2021 passed in identical appeal K-7418/2021 arose from same impugned order as well as interpretation of the Appellant avoids surplusage or redundancy, hence, we are of the considered view that interpretation of tariff heading 4810.1910 made in the impugned order leads to redundancy and finding of the Adjudicating Authority for classification of subject goods under tariff heading 4810.1990 which provides more general description is not in accordance with the settled principle of statutory interpretation laid down by the Hon'ble High Court of Sindh in its judgment cited in 2010 PTD 2338 "that if two reasonable interpretations are possible, but one leads to redundancy while the other avoids surplusage, it is the latter interpretation that has to be preferred".
23. It is also important to note and observe here that the report prepared by the classification committee of the Board issued on 26-03-2021 for opinion of interpretation of tariff heading 4810.1910 for classification of subject goods has neither been approved by the competent Authority nor same has been notified through public notice as per mandatory directions and procedure contained in Para 2(vi)&(viii) of CGO 12/2002 dated 15-06-2002. We are of the firm opinion after having guidance from the dicta laid down by the Honorable High Court of Sindh, Karachi in its judgment cited in 2016 PTD 2910 that such opinion based on findings of the Classification Committee which could not be given effect for classification and assessment of subject goods unless mandatory directions contained in the aforesaid CGO 12/2002 not complied regarding approval and notification. We have perused the dicta laid down by the Honorable Supreme Court in its judgment cited in 1993 SCMR 1232, wherein, it has been held that:- "It is evident from the above provisions that though the Central Board of Revenue has administrative control over the functionaries discharging their function under the Ordinance (Income Tax Ordinance, 2001), but, it does not figure in the hierarchy of the forums provided for adjudication of assessee's liability as to the tax in this view of the matter, any interpretation placed by the Central Board of Revenue, on a statutory provision cannot be treated as a pronouncement by a forum competent to adjudicate upon such a question judicially or quasi judicially we may point out that the Central Board of Revenue cannot issue any administrative direction of the nature which may interfere with the judicial or quasi judicial functions entrusted to the various functionaries under the statue. The instructions and directions of the Central Board of Revenue are binding on the functionaries discharging their functions under the Ordinance in view of Section 8 so long as they are confined to the administrative matters. Interpretation of any provision of the Ordinance can be rendered judicially by the hierarchy or the forums provided for under the above provisions of the Ordinance, namely Income Tax Officer, Appellate Assistant Commissioner, Appellate Tribunal, the High Court and this Court and not by the Central Board of Revenue in this view of the matter, the interpretation placed by the Central Board of Revenue on the relevant provisions of the Ordinance in the Circular, can be treated as administrative interpretation and not judicial interpretation"
24. We have also perused the dicta laid down by the Honorable Supreme Court in its judgment cited in 2020 SCMR 649 as well as by the Honorable High Court of Sindh, Karachi in its judgment cited in 2010 PTD 2338, wherein, it has been held that:- 2020 SCMR 649 "Undoubtedly, classification of goods for the purpose of duty, determination of the value and decision of appeals under section 193 of the Act, falls within the scope of quasi judicial functions under the Act. In case where Customs authorities exercise quasi judicial functions, it is not bound by the instructions and directions or orders of the Board which tend to interfere with its judicial discretion. It has to make its own decision on the basis of facts and circumstances and law applicable to case........."
2010 PTD 2338 "... The import tariff is the First Schedule to the Customs Act, 1969 and being part of the statue, its contents including explanatory notes, applicable rules and classification headings are to be interpreted and applied in terms of well known principles applicable to statutory interpretation.
The interpretation (i.e. determination of the legal meaning) of a statute or any part thereof, including a schedule thereto, is the functions and the duty of the Court specially the High Court under Article 199 of the Constitution...."
25. While the directions contained in Para 2(ix) of CGO 12/2002 read in juxta position with the dicta laid down by the Hon'able Supreme Court in its judgments cited in 1993 SCMR 1232 and 2020 SCMR 649 as well as by the Hon'able High Court of Sindh in its judgment cited in 2010 PTD 2338, it appears that interpretation of statutory provision i.e. tariff heading 4810.1910 being part of First Schedule to the Customs Act, 1969 made by the classification committee of Federal Board of Revenue having administrative control and functions can only be treated as administrative interpretation not judicial interpretation which become invalid on Interpretation of statutory provision i.e. tariff heading rendered judicially by the hierarchy of the forums provided for under the provisions of the Customs Act, 1969, namely, Adjudicating Authority, Appellate Collector, Appellate Tribunal, the High Court and Supreme Court. The Board having administrative functions and control for the purpose of administrative interpretation of statutory provision i.e tariff heading may be the final authority, but, as far as judicial interpretation of statutory provision i.e tariff heading is concerned the Supreme Court is the final authority. The judgment of the Honorable Sindh High Court dated 16-09- 2021 delivered in C.P. D-5578/2021 is under challenge before the Honorable Supreme Court in CPLA No.22090/2021 which was passed when no judicial interpretation of statutory provision i.e tariff heading 4810:1910 was in the field but, at this stage of the case judicial interpretation of statutory provision i.e tariff heading 4810.1910 has already been rendered by this Tribunal being final fact finding authority entrusted with judicial fiunctions and deemed to be a Court as held by the Hon'able High Court of Sindh in its judgment cited in 2000 YLR 2724 vide judgment dated 13-10-2021 in identical Appeal K7418/2021 arose from the same impugned consolidated order against which no supervening order of competent Court is in field. We are of the firm opinion that in existence un- challenged judgment of earlier equal bench of Hon 'able High Court of Sindh cited in 2010 PTD 2238 and as per dicta laid down by the larger bench judgments of Hon'able Supreme Court cited in 1993 SCMR 1232 and 2020 SCMR 649, the judgment delivered in C.P D-5578/2021 by the Hon'able High Court of Sindh under challenged before the Hon'able Supreme Court in CPLA No.22090/2021 could not be given binding effect in the instant judicial proceedings of this Tribunal discharging judicial functions within the hierarchy provided under provisions of the Customs Act, 1969. It appears that the Department misinterpreting the observation of Honorable High Court given in C.P. No. D- 5578/2021 which perhaps relating to the authority of the Board to the extent of its administrative interpretation of statutory provision i.e. tariff heading for the purpose of classification of goods in absence of judicial interpretation as per dicta laid down by the Apex Courts in their judgments cited in 1993 SCMR 1232, 2020 SCMR 649 and 2010 PTD 2338.
26. This Tribunal in exercise of its judicial functions being final fact finding Authority under the hierarchy of the Customs Act, 1969 is to make, its own decision regarding judicial interpretation of statutory provision i.e. tariff heading 4810.1910 on the basis of facts and circumstances of the case and the applicable law, as the Import Tariff is the first Schedule to the Customs Act, 1969 and being part of the statute, its contents, including explanatory notes, applicable rules and classification headings are to be interpreted and applied in terms of the well-known principles applicable to the statutory interpretation (i.e. determination of the legal meaning) of a statute or any part thereof, including a schedule thereto, is the function and the duty of the Courts as per dicta laid down by the Honorable Supreme Court in its judgment cited 2020 SCMR 649 as well as by the Division Bench of Honorable Sindh High Court in. its judgment cited in 2010 PTD 2338. As per facts and circumstances of the instant case being admittedly identical in nature, we observed that findings and observations of single Bench of this Tribunal already given in the identical Appeal K-7418/2021 of leading party M/s Younus & Sons (Pvt) Ltd, Karachi arose from the same consolidated impugned order having common issues are not distinguishable. In view of our above observations, findings and by following dicta laid down by the Apex Courts in the judgments cited Supra, we decide the issue No. (III) in negative in favor of the Appellant and against the Respondent Department"
15. In addition to the above I have observed that opinion of the Classification Committee dated 26- 03-2021 which was already become invalid after judicial decisions dated 13-10-2021 and 27-11-2021 made by this Tribunal as per mandatory direction of the Board notified in Para-2(ix)(a) of CGO 12/2002 was notified by the Customs contemptuously through subsequent issuance of Public Notice No.01/2021 dated 27-11-2021 by making reliance on order dated 16-09-2021 passed by the Honorable High Court of Sindh, Karachi in C.P. No.D-5578/2021 which has also been set aside by the Honorable Supreme Court of Pakistan vide its order dated 13-04-2022 passed in Civil Petition No.5489/2021. The three members Bench of Honorable Supreme Court of Pakistan in 2022 SCMR 1082 = 2022 PTD 1079 [CIR v. M/s. Sargodha Spinning Mills (Pvt.) Ltd.] in its order dated 03- 022022 has already held that the Appellate Tribunal is the final fact finding body and its finding of facts are conclusive. In view of above findings and as per dictum laid down by the Apex Courts in the cited judgments and as per rule of equal protection of law envisaged under Article 25 of the Constitution of Pakistan, 1973 and by following law of precedent, I hereby decide the question of law No. (2) in negative, in favor of the Appellants and against the Respondent Department by holding that the interpretation of tariff headings 4810.1910 and 4810.1990 made by the Collector of Customs (Appeals) being lower forum for classification of imported goods which are subject matter of these appeals for the purpose of levy and recovery of duty and taxes appears to be based on opinion given on 26-03-2021 by a Classification Committee of Customs Officers which is incorrect, excess of authority and against the law.
16. I have perused the proceedings and order of the Collector of Customs (Appeals) which reflects that while passing impugned Orders-in-Appeal the Collector of Customs (Appeals) violated the law of precedent to whom both judicial decisions/judgments dated 13-10-2021 and 27-11-2021 of this higher forum passed under section 194-B read with 194-C(4) of the Act, 1969 being final fact finding Authority in identical appeals having same controversies were submitted through statement dated 15-02-2022, but, the same have neither been discussed nor considered nor followed deliberately by the Collector of Customs(Appeals) which appears to be disobedience and the same raised question on the competency of the Collector of Customs (Appeals) white discharging his duty being quasi-judicial Authority imposed under the Customs Act, 1969. Under the law, unless and until stay order or supervening order is passed by the Apex Court against the order/judgment of this Tribunal the Department and the lower forums have to follow the order/judgment of this Tribunal with letter and spirit, but, on the contrary, the Collector (Appeals) being lower forum preferred Departmental favoritism instead of following law of precedent while passing impugned orders in highly arbitrary, discriminatory and illegal manner. On consideration of above findings, I hereby decide the question of law No.(3) in affirmative, in favor of the Appellants and against the Respondent Department with direction to the FBR to take notice of such act and proceedings of the Collector (Appeals) under the relevant Government Servant (Conduct)
Rules, 1964 read with Government Servants (E&D) Rules, 1973.
17. I have examined the facts of the cases, grounds of appeals, cited case laws/judgments and documents submitted by the Appellants before the Collector (Appeals) and observed that whole findings given in the impugned orders are merely based on proceedings and opinion of the Classification Committee dated 26.03.2021 which has already become invalid after judicial decisions/judgments dated 13.10.2021 and 27.11.2021 of this higher Appellate Forum and being final fact finding Authority, wherein, detailed fact finding on the aforesaid opinion and controversy of classification of imported goods and its effect retrospectively or otherwise has already been given after considering and discussing the documents placed on record and judgments referred by the parties against which not stay or supervening order of competent Court is in field. It is also observed that the Collector (Appeals) neither applied his independent mind judicially being quasi- judicial Authority nor discussed and read the relevant documents, statement and cited case laws/judgments of Apex Courts. The Collector (Appeals) being lower forum not followed the law while passing impugned orders in arbitrary, discriminatory and illegal manner. On consideration of above findings, I hereby decide the question of law No. (4) in affirmative, in favor of the Appellants and against the Respondent Department.
18. In view of the above finding and by following the dictum laid down by the Apex Courts in the cited judgments and as per rule of consistency, the impugned orders are not sustainable in law and are illegal which are set aside by allowing these appeals of the Appellants on merits.
19. Order passed accordingly.