NASIM SIKANDAR, J.---Through this common order we intend to dispose of C.A.No,12 of 2001 to C.A.
No, 59 of 2001 filed by different importers and C.A.No,68 of 2001 to 141 of 2001 filed by the Department against a common order recorded on 23-12-2000 by the Customs Excise & Sales Tax Appellate Tribunal.
2. The appellants in C.A. No,12 of 2001 to C.A. No,59 of 2001 are manufacturers of poultry feed. They are regularly importing sizable quantities of Soyabean Meal from India which is stated to be a major ingredient of poultry feed. On arrival of their consignments from India at Lahore Railway Station they filed bills of entry for consumption declaring different values of the consignments ranging from US Dollar 130,00 to US Dollar 151 per metric ton. The respondent No,1/Assistant Collector Customs, Railway Station, Lahore refused to accept the declared value. A provisional assessment order under section 81 of the Customs Act, 1969 was recorded after a direction was sought from this Court by the importers. In the provisional assessment so made the value of the consignment per metric ton was determined as US Dollars 170. The basis of the valuation was claimed to be a bill of entry filed by Messrs Metha Brothers one of the importers who had declared the value of the consignments at US Dollars 170 per metricton of a consignment. imported in middle of December, 1998. Subsequently through an order in original recorded on 28-5-1999 the same value was finalized for the purpose of determination of various duties leviable on the imported consignments.
3. The importers/appellants remained unsuccessful before the First Appellate Authority which through its order dated 30-7-1999 agreed with the basis evolved for the assessment of the value of the consignment as well as the value as finally determined by the respondent No, 1.
4. On further appeal, by way of the impugned order, the learned Tribunal directed adoption of value of all consignments US Dollar 151 per metric ton on the basis of a bill of entry dated 28-1-1999 filed by one of the appellants before them Messrs Olympia Feeds (Pvt.) Limited.
5. It is the case of the appellants that the value declared by Messrs Metha Brothers could not form basis for the valuation adopted in respect of consignments imported by them. It is stated that Messrs Metha Brothers not only purchased the goods on credit but also entered into the purchase agreement in off seasons when obviously the prices were at their peak. On the other hand, according to the appellants/importers the imports made by them were made during the seasons when the crop had recently come to the market and was available at minimum price. In support of their submissions the importers relied upon a letter dated March 11, 1999 issued by the High Commission of Pakistan. In reply to a query made by their association namely, the Pakistan Poultry Association, Murree Road, Rawalpindi. Through that letter the Commercial Counsellor conveyed to them with reference to their fax of March 10, 1999 that the prices of soyabean meal in India was US Dollar 140.00 while it could be had for US Dollar 138 F.O.R. Attari. The importers further claimed that in absence of any solid proof of under statement the Department was obliged to accept the declared price. At any rate it is stated that the value of their consignments as determined by the Department were not in accordance with section 25 of the Customs Act, 1969 as it existed at the relevant time.
6. Mr. Noman Akram Raja, Advocate/learned counsel for the importers, in support of his various submissions, relied upon the ratio settled in re: Messrs Latif Brothers v. Deputy Collector Customs (1992 SCMR 1083), re. Messrs Abdul Aziz Ayoob v. A.C. Customs (PLD 1990 Kar.378), re: Messrs Commercial Pipe Ltd. v. Federal Government of Pakistan and others (PLD 1989 Lahore 89).
7. On the other hand it is the case of the Revenue that the Tribunal wrongly allowed partial relief to the appellants as the basis of valuation adopted by them was a case of one' of the importers which was even an appellant before the Tribunal in respect of a subsequent consignment. Mr. K.M.
Virk, Advocate/ learned counsel for the Revenue strongly stresses that there could not possibly be a better basis for determination of the value than the consignment of Messrs Metha Brothers imported during the last month of the year, 1998 while almost all imports/consignments in question were received in Pakistan within next 8/10 weeks.
8. Mr. Nadeem Afzal Lone, Advocate/ learned counsel has appeared for importers who are only respondents in Departmental appeals. They appear to have accepted the relief allowed by the Tribunal and therefore, have not agitated the matter any further. According to the learned counsel the issue with regard to mere valuation of a consignment being necessarily that of fact, the Departmental appeals filed against the impugned order are not maintainable. In support of his submissions he relies upon in re: Indus Automobile Pvt. v. Central Board of Revenue (PLD 1988 Karachi 99), re: Nadir Shah v. Lal Shah (PLD 1954 Lahore 447), re: Messrs Azmat Bros. v. Collector of Customs (1989 CLC 1639) and also refers to re: Govindram Bros. v. I.T. Commr (AIR (34) 1947 Bombay 247). Finally takes exception to the filing of appeal by the Assistant Collector Customs, Lahore. According to the learned counsel in terms of section 196 of the Customs Act, 1969 it is only the concerned Collector, who can file an appeal before this Court. Therefore, describes all the Departmental appeals to be incompetent.
9. After hearing the learned counsel for the parties we will agree with Mr. Noman Akram Raja, Advocate that the Department did not evolve a legally acceptable basis to determine value of the consignments nor it over ruled upon the submissions made before it with regard to purchase of goods by Messrs Metha Brothers during off season and that too on credit. Learned counsel is also correct in pointing out that the learned Tribunal instead of ruling upon their contentions made before them proceeded to allow partial relief on the basis of the alleged general tendency on the part of the Department to over-assess the imports coming into the country. He is also correct in pointing out that different rates given by different importers ranging from US Dollars 130 per-metric ton to 151 per metric ton itself indicates lack of any dishonest concert between them.
10. The reference and reliance by the Tribunal on rule 4 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 1999 notified on 24-12-1999 as S.R.O. No,1369(1) of 1999 was also not pertinent inasmuch as these rules could not have retrospective effect . as all the imports in question were made either in December, 1998 or in the first quarters of the year, 1999. Even otherwise where the value declared by the importers of consignment is not accepted/ acceptable to the Revenue, they are empowered to determine its valuation. However, as rightly pointed out by the learned counsel such determination cannot either be in a vacuum nor on the basis of general perception of under statement by importers or a mere opinion of the department as to the prevalent price of a particular commodity in the domestic or International market. The basis of valuation according to section 25 of the Customs Act, 1969 is the normal price which the goods could fetch on a sale in open market between a buyer and a seller independent of each other.
11. Learned Tribunal also does not appear justified in brushing aside the aforesaid letter of Commercial Counsellor. The view of the learned Tribunal that letter having been received without an involvement of the Customs Authorities could not be given any credit hardly appears to be a correct view of the letter as well as the commercial practice. If the Departmental Authorities were not in agreement with the contents of the letter and the information contained therein they could very well approach the same Commercial Counsellor for elucidation or asking for more details of the sellers of the commodities in India. If the information provided or the report made by a Counsellor officer of diplomatic status of Pakistani mission is not accepted in Pakistan then no one will be there to give any credit to such information. Without putting that information to any further test neither the Revenue Officer nor the learned Tribunal could brush aside the same. Perhaps at both levels the difference between information gathered against a party and the information gathered by a party in respect of its case was conveniently overlooked. If that information had been gathered only by the Customs Authorities and it was not confronted to the importers then the situation obviously would have been different. However, here a trade association approached the Pak. Diplomatic representative assigned with the particular job in India who responded to their query. That response was a good defence to be taken by the members of the association.
Obviously it was not a gospel truth if the Department or any other Authority had to disbelieve the same then such disbelief ought to have been based upon further information collected or evidence procured to prove, beyond of any shadow of doubt, that information provided by the concerned diplomatic representative of Pakistan was, not worthy of credit, That having not been done the rejection of that evidence by the Customs Authorities as well as by the Tribunal cannot be approved. The case relied upon by Mr. Noman Akram Raja, Advocate, learned counsel for the importers are relevant and support the submissions made with regard to the principle needed to be adhered to while determining the value of a consignment under section 25 of the Customs Act, 1969 (as it existed at the relevant time).
12. The facts before their Lordships of the Supreme Court of Pakistan in re: Messrs Latif Bros. (Supra) were strikingly identical to those in hand. On consideration of the provisions of sections 25, 30, 32 and 156 of the Customs Act, their Lordships observed that the Customs Authorities had to secure material to show that the declared price of goods was considerably lower than that at which identical or similar goods were freely sold by the same or other sellers in country of origin at the same time for the same quantity to any buyer in Pakistan at the same commercial level., Further that in absence of proof or a reasonable material to show that the Customs had made much an attempt to secure such material and failed, they could not have taken into consideration the price at which identical or similar goods were being sold by sellers in other countries to any buyer in Pakistan. In the view of their Lordships the assessment of goods by Customs Authorities on the basis of price of goods as provided by an other exporter could not be taken into consideration in treating the declared version of the importer as any form of misdeclaration.
13. Judging the issue in hand in the light of the above judgment of the. Supreme Court of Pakistan we have concluded that it was a case of no evidence at all as far the Revenue is concerned.
Particularly when they failed to rule upon the claim of importers that the parallel case relied upon by the Revenue was not parallel for two reasons of its having been a transaction on credit and having been entered during off season. On the other hand the value declared by the importers was not only supported by their documents but also the information provided by a Commercial Counsellor based in India. No effort whatsoever was made to put such information to any test.
Therefore, the Revenue as well as the Tribunal certainly erred in law as well as in fact to refuse to give credit to that letter.
14. That being so we are of the view that in the facts and circumstances of the case the learned Tribunal wrongly ignored the relevant evidence submitted by the importers and passed the judgment basing upon the declaration made by one of these importers. If the declaration of one of the several importers before them had to be accepted then why not the declarations made by the rest of them.
15. As far the legal objection against the maintainability of Departmental appeals is concerned since we have decided the issue on merits there hardly appears any justification to knock out the department on a technicality. It also needs to be mentioned that the cases relied upon by Mr. Nadeem Afzal Lone, Advocate pertain to the exercise of Constitutional jurisdiction by this Court. In all these cases the exercise of Constitutional jurisdiction was disapproved on the ground that generally the issue of evaluation of imported consignment revolved around factual controversies. However, where an order of any lower Court or forum is not supported by evidence or is against the evidence brought on record, such order certainly raises a legal controversy which can be; resolved not only under section 100 C.P.C. but' also under section 196 of the Customs Act, 1969. #TS###Accordingly the appeals filed by the importers are allowed in terms of our answer given in penaltimate para while all Departmental appeals shall fail.
16.A copy of this order under seal of the Court shall be 'sent to the Appellate Tribunal under 1969.