SHAKEEL AHMED ABBASI, MEMBER JUDICIAL-III.---By this judgment, I intend to dispose of Customs Appeal No.K-1453/2019 filed against Order-in-Appeal No.2227/2019 dated 01.11.2019 passed by the learned Collector of Customs (Appeals), Karachi.
2. Brief facts of the case are that the appellant imported a consignment said to declare as Magazines / Printed Material 27 Packages, 314 Kgs Gross Weight vide Air Waybill No. 17687915004 dated 30.03.2018 IGM No.3633 dated 02.04.2018 and Index No. 13 from M/s. Darlington Postal Company, LLC 2434 Shurvesville RD Darlington MD 21034 (JFK International Airport). The appellant got Delivery Order No. 0066 and Gate Pass No.00111 dated 02.04.2018 by the ground handling agent M/s. Gerry's Dnata. The aforesaid shipment was allowed Gate Out by M/s. Gerry's Dnata and the Preventive staff posted at ICG Gate in terms of Standing Order No. SI /PCA/AFU/4/2010 dated 24.08.2010 and the delivery of the instant shipment was released accordingly. Subsequently, the Importer filed a HC GD bearing No. KPFI-HC-4449 dated 03.04.2018 and declared the goods as Magazine/Printed matter Linder PCT 4902.9000. The record retrieved from accused Rafiq Ahmed Siddiqui, Clearing Incharge of M/s. Paradise E-commerce Solutions, Karachi revealed that under Airway Bill No.176-87915004 dated 30.03.2018 IGM No.3633/2018 Index No.13 arid packing list of goods imported under instant Airway Bill mentioned item wise details of high dutiable luxury goods. The referred packing list mentioned assorted high value goods such as cosmetics, electronics items, food supplements, toiletries. Further and is transpired that on corresponding Goods Declaration No.KAF14449 dated 03.04.2018 the importer has adopted the same modus operandi of clearing high value dutiable goods in the garb of printed material/magazines by making fake declarations and submitting fake documents at the time of Goods Declaration processing. On the contrary, the original packing list received from I & P Branch, MCC Preventive, Karachi, mentioned the actual description and value of high dutiable luxury goods such as cosmetics, food supplements, and electronics items etc. In this way the appellants not only hoodwinked Customs but also fraudulently deprived government from its legitimate revenue which has been appraised at value Rs.893,932/- and applicable Duty/Taxes amounting to Rs.620,920/-. Therefore, the appellants knowingly and deliberately mis-declared and actual description, PCT and value which resulted into short realization of legitimate Government Revenue to the tune of Rs. 620,920/-. Therefore, the appellant has violated under the relevant provisions of law. Accordingly, the adjudicating officer held that the charges against the appellant had been proved.
3. Adjudicating proceedings culminated into passing of Order-in-Appeal No.2227/2019 dated 01.11.2019 passed by learned Collector of Customs (Appeals), Karachi as under:--
8. "I have examined the case record and arguments of both the sides and have given careful consideration to the facts of the case. The appellant's stance was that they have imported the goods as per their declaration and the fact can be verified from the examination report by customs staff, which is terms of Rules 43 and 46 of Customs Rules, customs staff has to examine the goods before allowing prior release. This point be valid for cases of previous consignments, but in the presence of seized goods in the instant consignment where the consignment is examined again and found goods other than declared goods, cannot be hold true. However, the Collectorate should have mentioned the examination reports in the Show-Cause Notice, if' these consignments "re-examined in compliance of Customs Rules, Moreover, the custom staff responsible for examination before allowing release should have been prosecuted under E & D Rules. Nevertheless, in the presence of seized goods found other than declared and haying valid Packing lists from the clearing agent, I found no reason to interfere with order-in-Original. Appeal is dismissed."
4. The appellant preferred the present appeal against the impugned Order-in-Appeal passed by the Collector (Appeals) on the basis of grounds enumerated therein. The Counsel for the Appellant argued the case in accordance with those grounds. Respondent filed parawise comments which have been taken on record.
5. During the arguments, it has been confirmed by the DR that the impugned consignment has been auctioned, as such, the instant appeal has become infructuous. In view of this factual position, the counsel for the appellant requests that after adjustment of penalty of Rs.120,000/-, the balance amount of Rs.4,880,000/- out of total surety amount of Rs.5,000,000/-may be refunded to the appellant.
6. The request of the counsel of appellant merits consideration, it is hereby ordered that amount of Rs.4,880,000/- should be refunded to the appellant within 15 days of receipt of this order. The appeal stands disposed of in these terms with no order as to cost.
7. This judgment consists of three (03) pages and each page bears my initial as well as official seal with full signature on the last page.