ZAFAR-UL-MAJEED, MEMBER (TECHNICAL). - This appeal is directed against Order No. V- (8)
Cus/WP/172/94/887, dated 13.3.2000 passed by Principal Appraiser-ll, Collectorate of Customs, Dry Port, Lahore.
2. Relevant facts giving rise to this appeal are that M/s. Flying Paper Industries Limited, Lahore (the appellants herein) imported different consignments of Bleached Soft Wood Kraft Pulp and Bleached Hard Wood Kraft Pulp from various origins at the declared invoice values as detailed below:- Description of goods Country of originDeclared Unit Invoiced Value.
Bleached soft wood Kraft PulpCanada US $ 678/M.Ton Bleached soft wood Kraft PumpIndonesia US $ 675/M.Ton Bleached soft wood Kraft PumpU.S.A US $ 748/M.Ton Bleached Hard wood Kraft PulpIndonesia US $ 685/M.Ton Bleached Hard wood Kraft PulpTurkey US $ 600/m.Ton
3. The goods were assessed at declared invoice values as either the import trade price (ITP) of the goods of aforesaid origin was not fixed or the declared value was higher than the ITP which was not applicable to the appellants' imports being the minimum value as specified in the relevant Valuation Manual. The appellants moved the Lahore High Court through various Writ Petitions claiming assessm ent of goods at US $ 545/MT i.e. The ITP fixed for the goods of USA origin. The honourable Lahore High Court vide its interim orders directed the goods to be released on payment of duties according to the ITP of US $ 545/M.T. Subject to the appellants furnishing insurance guaiantee for the payment of balance amount in case the writ petitions failed. The writ petitions were finally decided by the honourable Lahore High Court with the direction that the goods be assessed to duties and taxes in terms of Section 25 of the Customs Act, 1969. Accordingly, the learned Principal Appraiser after giving the appellants due opportunity of defence, finalized the assessm ents at declared invoice values vide the impugned order and directed the appellants to pay the differential amount of Customs Duty and Taxes in respect of different bills of entry as detailed below:- S.No W/P No.B/E No. & Date Amount of Insurance Guarantee InvolvedGrand Total
1. 14935/9403905 dt. 12.12.94 4546 dt. 1.1.95 4419 dt. 28.12.94Rs. 293002 Rs. 285769 Rs. 879010 1457781
2. 14936/944784 dt. 11.1.95 3904 dt. 12.12.94Rs. 289860 Rs. 440935 730795
3. 14937/943907 dt. 12.12.194 4545 dt. 1.1.95 4417 dt. 28.12.94Rs. 429591 Rs. 94931 Rs. 859183 1383705
4. 1630/95 5238 dt. 31.1.95 5237 dt. 31.1.95 5236 dt. 31.1.95 5235 dt. 31.1.95Rs. 1228247 Rs. 1228247 Rs. 1228247 Rs. 1228247 4912988
5. 2066/95 5414 dt. 9.2.95 5308 dt. 6.2.95Rs. 43395 Rs. 42579 85974
6. 14938- 944212 dt. 21.12.94 4633 dt. 4.1.95 4632 dt. 4.1.95 3903 dt. 12.12.94 4418 dt. 28.12.94Rs. 462637 Rs. 696211 Rs. 696211 Rs. 693955 Rs. 231317 2780331
7. 14939/943936 dt. 13.12.94 4783 dt. 11.1.95 3978 dt. 14.12.94Rs. 826955 Rs. 294761 Rs. 446114 1567827 Total: 12,919,401
4. Through the instant appeal, the appellants have challenged the impugned order, inter alia, on the following grounds:-
(1) That the goods were provisionally assessed by the Customs authorities under Section 81 of the Customs Act, 1969 and since the assessments were not finalized within the period of 180 days stipulated therein, the provisional assessments became final which could not be re-opened by the department. Reliance has been placed on a judgment of Sindh High Court reported as "1999 CLC 755".
(2) That the impugned order is illegal for the reason that the Principal Appraiser neither asked the department to bring evidence in support of value proposed by it nor the appellants were given the opportunity to bring evidence in rebuttal of the same as required in terms of Section 25 of the Customs Act, 1969.
(3) That the. Appellants correctly declared invoice value at the time of import but by the time ex- bond bills of entry were filed for clearance of goods from the bonded warehouse, the value of goods had declined due to downward trend in th international market, as is also evident from the ITP of US $ 545/MT of USA origin fixed by the Customs authorities. The goods imported by the appellants having been imported from Canada, which is in the same economic zone as USA and other countries where the value of goods are even less, the ITP fixed for USA origin should have been applied to all the appellants' imports.
5. The learned Departmental Representative opposed the appeal pleading that the goods were provisionally released in pursuance of the Lahore High Court's interim order passed in various Writ Petitions pending final decision and, therefore, provisions of Section 81 of the Customs Act, 1969 were not attracted in these cases. He further submitted that- the ITP fixed for USA origin goods vide Notification No. S.R.O. (KE)/94, dated 29.9.1994 was the minimum value for the purposes of assessm ent. Since the declared values in the cases under appeal were higher to pan the ITP, the goods were rightly assessed at the declared value. Moreover, in the aforesaid notification, ITP of the goods of only USA origin has been fixed whereas the goods in question were imported from different origins and, therefore, the assessment at value declared by the appellants themselves was in accordance with the provisions of Section 25 of the Customs Act, 1969.
6. We have gone through the case record and considered the submissions made by both the sides.
We do not find any merit in the contentions raised by the appellants in support of their case because in the first place, no ITP in respect of the goods imported from countries other then USA was fixed by the Customs authorities and therefore the goods were to be assessed at the values declared by them. Secondly, vide Notification No. SRO (KE)/94, dated 29.9.1994, the ITP of goods of USA origin was fixed at US $ 545/MT but the same was not applicable to the appellants' case as the notification provided for the C&F value fixed therein as the minimum value and where declared value of the goods was higher than the ITP, the goods were to be assessed at the declared value.
Section 25 of the Customs Act as it existed during the relevant period provided for customs value of good to be the price which > the goods would fetch on a sale in open market between the buyer and seller independent of each other. The customs authorities were thus authorised in the case of dispute to determine normal value of the goods on the basis of evidence of import of identical goods, In the cases under appeal, the learned Principal Appraiser, while finalizing the assessment, has accepted the invoice values declared by the appellants themselves and therefore, the assessm ent was rightly made in terms of the provisions of Section 25 of the Customs Act, 1969. The appellant's contention that the prices of goods had declined during the period between inbounding and ex-bonding of the goods is also without merit in that (i) the period of in-bonding as well as ex-bonding in the case of most of the bills of entry is over-lapping and in some cases where ex-bond bills of entry were filed shortly afterwards i.e. After a period of one to two months from the date of the last into-bond bill of entry, which was within the tolerance limit provided under CGO 1/81, dated 16.12.1981 and (ii) they have not been able to produce any evidence to support decline in prices except for a reference to I.T.P, for USA origin goods fixed at US $ 545/M.T. Which is not relevant for the reasons discussed herein before.
7. We also agree with the department's contention that the assessment Trade at lower value in the cases under appeal were not provisional assessments as envisaged under Section 81 of the Customs Act, 1 969 but was provisional release of goods allowed in pursuance of the interim orders passed by the Lahore High Court in various Writ Petitions pending final decision. Provisions of Section 81 requiring finalisation of assessment within,180 days, as contended by the appellants,- were, therefore, not attracted in these cases.
8. In view of the foregoing, we do not find any reason to interfere with the impugned order, which has been passed on lawful and valid grounds. The appeal is accordingly rejected.