JUDGMENT 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.As. Nos. 68/2001 to 141/2001 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. 59/2001 are manufacturers of poultry feed, They are regularly importing sizable quantities of Soya Bean 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 assessm ent order under Section 81 of the Customs Act, 169 was recorded after a direction was sought from this Court by 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 o entry filed by M/s. Metha Brothers one of the importers who had declared the value of the consignments at US Dollars 170 per metric ton for 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 N.1.
4. On further appeal, by way of the impugned order, the learned Tribunal directed adoption of value of all consignments at 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 M/s. Olympia Feeds (Pvt) Limited.
5. It is the case of the appellants that the value declared by M/s. Metha Brothers could not form basis for the valuation adopted in respect of consignments imported by them, It is stated that M/s. Metha Brothers- not Only purchased the goods on credit but also entered into the purchase agreement in of seasons when obviously the prices were at their peak. On the other hand, according to the appellants/importers the imports made by them made during the season 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 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 FOR. Aftari. 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 relies upon the ratio settled in re: Messrs Latif Brothers v. Deppty Collector Customs 1992 SCMR 1083), re: M/s. Abdul Aziz Ayoob v. A.C. Customs (PTCL 1990 Cl. 1041) and re: Messrs Commercial Pipe Ltd. v. Federal Government of Pakistan and others (PLD 1989 Lah. 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 M/s. 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 1998 Kar.
99), re: Nadir Shah v. Lal Shah (PLD 1954 Lah. 447) and re: Messrs Azmat Bros. v. Collector of Customs (1989 CLC 1639). Also refers to re: Gonvidram Bros. v. I.T. Govindram. (ATR (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 in-competent.
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 M/s. Metha Brothers during of 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 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 dollar 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 SRO No. 1369(l)/99 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 a consignment is not accepted/acceptable to the revenue, they are empowered to determine its valuation. However, as rightly pointed but 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 scale in open market between a buyer and a seller independent of each other.
11. Learned Tribuna: 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 hot be given any credit hardly appears to he a correct view of the letter as-well as the commercial practice. If the departmental authorities were not in agreement who the contents of the letter and the information contained therein they could very well approach the same commercial counselor for elucidation asking for more details of the sellers of the commodities in India. If the information provided or the report made by a counsellor effierce of diplomatic status of a Pakistani Mission is not accepted ;n Parian then no one will be there to give any credit to such information. Without putting that information to pay further test neither the revenue officer not the learned Tribunal could brush aside the same. Perhaps at both levels the difference between ah information gathered against a. Party and the information gathered by a party" in respect of its case was conveniently over-looked. 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 cases relied upon by Mr. Noman Akram Raja, Advocate,' learned counsel for the importers are relevant and support he submission 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: M/s. 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 such an attempt to secure such material and had failed, they could not have taken into consideration the price at which identical goods or similar goods were being sold by sellers in other countries to any buyer in Pakistan, In the view of th$ir 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 mis-declaration.
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 of 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 at 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 declaration made by the rest of them.
15. As far as 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 CPC but also under Section 196 of the Customs Act, 1969. Accordingly the appeals filed by the importers are allowed in terms of our answers given in penultimate 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 sub- section (5) of Section 196 of the Customs Act, 1969.