SHAKIL AHMED ABBASI, MEMBER JUDICIAL BENCH-III. This Judgment disposes of Customs Appeal No. K-06/2020 dated 02.01.2020 filed by the Appellants against the Order-in-Original No. 1464882/2019 dated 05.12.2019 passed by the Additional Collector of Customs, Adjudication-I, Karachi.
2. Facts of the case as reported are that M/s. S. Star Shinwari Trading, Rawalpindi imported a consignment of (i). Butane Gas in Aerosol, total weight with essential packing 13845.888 kg and net content weight 9191.808 kg and (ii). Adult tooth brush, qty 28800 pcs, approx. weight 1130 kg, (iii).
Shoe Brush, qty 4800 pcs, vide IGM No. 426/2019 Index No. 623 from China and filed Home Consumption Goods Declaration No. KPPI-HC-33891-18-11-2019 for clearance thereof and declared value of US$ 9400/-. The GD was selected for 1 lods, examination staff has reported an undeclared item i.e. "Cigarette lighter filled with gas (Refillable), brand: HSM - Origin: China, Model: CY-5219, qty: 302000 pcs (weight 3926 kgs net approx.). The said undeclared item attracts higher valuation ruling and higher slab of duties and taxes. The quasi-judicial proceedings were initiated by the Collectorate and accordingly framed contravention case against the importer. The adjudicating authority vide Order-in-Original, dated 07.08.2019 disposed of the Show-Cause Notice No. CN- 1412312 dated 03.12.2019 and ordered as under: "17. It is observed that in his reply, the importer has shown his willingness to pay the leviable duties and taxes on the impugned goods may be recovered as per applicable rates and the goods may be released accordingly ensuring that no revenue loss is caused to national exchequer. b)
Respondent importer is warned to be careful in future. c) A personal penalty of Rs. 25,000/.
(Rupees twenty five thousand only) is also imposed on respondent importer 18. Show-Cause Notice No. 1412312 dated 03.12.2019 is disposed of accordingly."
3. Being aggrieved with the orders passed by the adjudicating authority, the appellant filed an appeal against the aforesaid order-in-original before the Customs Appellate Tribunal and reiterated that the adjudicating authority failed to appreciate the 'clear intention of legislature to impose fine a 35% in terms of SRO 499(I)/2009 dated 13.06.2009 upon the Respondent. The Appellant Department took following grounds of Appeal:- a. That impugned order is bad in law, wrong on facts and lacks judicial application of mind. b. That the learned Additional Collector (Adjudication) failed to appreciate that the respondent importer mis-declared the description of goods. Upon examination "Undeclared" item i.e Cigaratte lighter filled with gas. (Refillable), Brand: HSM, Origin: China. Model: Cy-S219, qty 302 ctns x 1000 pcs/ctn = Total 302.000 pcs weight 3.926/. kg net approx was found. c. That the learned Additional Collector (Adjudication-I) erred in law to not imposed redemption fine @ 35% in terms of SRO 499(I)/2009 in a case where un-declared item have been found. d. That the order passed by the learned Additional Collector (Adjudication)/Respondent No.2 on face of it appears to have been passed without consideration of facts of the case/examination report resulting in miscarriage of justice. e. The interpretation so taken by the learned Additional Collector of Customs Adjudication is not supported by the spirit of the SRO 499(I)/2009. f. That the learned Additional Collector (Adjudication-I) failed to appreciate that the intention of legislature to impose fine @ 35% in terms of the said SRO to discourage to mis-declaration and to protect government revenue as per law. g. That learned Additional Collector (Adjudication-I) lacks judicial application of mind and passed the impugned order without examining the case record which causes serious prejudice to the Appellant. h. That learned Respondent No.2 ought to have held that the act of the Respondent No.1 falls within the ambit of mis-declaration under section 32 of the Customs Act, 1969. The Respondent No.1 ought to have been penalized for the act done by him. i. That in view of the facts of the case the learned Additional Collector (Adjudication-I) ought not to have passed the order for the release of goods on payment of leviable duty and taxes. The importer ought to have been penalized for the act committed under Section 32 of the Customs Act, 1969. j. That learned Additional Collector (Adjudication-I) failed to appreciate that the instant case is an established case of mis-declaration within the meaning of Section 32 of the Customs Act, 1969 and as such the goods cannot be released without passing an order for imposition of fine and penalty. k. That learned Additional Collector (Adjudication-I) failed to exercise its powers fairly and justly and as such the order passed by the learned Additional Collector (Adjudication-I) is liable to be set aside.
I. That the impugned order is perverse, illegal, void abintio and against the provisions of Customs Act, 1969.
4. I have perused the record and heard Representative of the Appellant Department. Nobody appeared for the Respondent importer nor filed parawise comments despite service of notice. The Appeal is decided on the basis of available record. The fact of the matter is that the respondent accepted import of undeclared item and paid duties and taxes on the subject goods without redemption fine @ 35% leviable in terms of SRO. 499(I)/2009 dated 13.06.2009.
5. The learned Departmental Representative has vehemently argued that once undeclared item are found and so admitted the, release of consignment without payment of redemption fine (applicable in this case @ 35%) is not justified in terms of above referred SRO. On this count ONO passed by the Adjudicating Authority is illegal and is liable to be set aside.
6. In view of the above discussion, I find force in the argument on perusal of Clauses (c) & (d) of Para 1 of the cited SRO. Accordingly, I hereby allow the Appeal and set aside the Order-in-Original passed in the case with the direction to impose redemption fine @ 35% upon the/Respondent Importer in addition to personal penalty already imposed upon him.
7. Appeal stands disposed of in above terms.