Tassaduq Hussain Jillani, J.--This judgment shall dispose of Custom Appeals Nos, 188/01, 189/01, 190/01, 191/01, 192/01, 193/01,194/01, 195/01, 213/01, 214/01, 215/01, 216/01, 217/01, 218/01,219/01and 220/01 as they are directed against the same impugned judgment passed by the learned Custom, Central Excise and Sales Tax Appellate Tribunal Lahore dated 10.4.2001 vide which he .allowed the appeals of private respondents (appellants in Custom Appeals Nos, 213/01 to 220/01). The afore- referred appellants are manufacturers of paper products. They imported raw; materials, stored them in their respective bonded warehouses but removed those items without payment of Government dues amounting to milliong. The Director of Intelligence and Investigation (Customs)
Lahore prepared a, contravention report got registered criminal cases registered referred the matter for adjudication and in terms of the orders passed by the Collect6r of Customs (Appraisement) they were directed to pay custom duties and taxes leviable on the goods unlawfully removed from the warehouses at their value prevalent on the dates of their filing inbonding bills of entry.. They were also burdened with heavy penaltie's. The appeals filed by the respondents were partly allowed by the Appellate Tribunal it was directed as under-- (i)in terms of Section 35 of the Customs Act, 1969 the relevant date for assessing the custom duty and tax was the date of filing the exbonding bills of entry and not date of their inbonding and not even the date of detection of the removal of those goods from the warehouses; (ii)the appellants/importers shall deposit the amount of custom duty and taxes on the valuation of goods removed which was prevalent on the date of filing their exbond bills of entry for home consumption and if they have already deposited more than this amount, they shall be entitled to the refund of the amount deposited in excess, but on those consignments where less amount had been deposited they shall make up the deficiency within a month of the announcement of the judgment;
(iii) for removing the goods clandestinely and illegally the appellants/importers were burdened with a personal penalty at the rate of 10% of the principal amount to be deposited in terms of the afore-referred directions.
2. While impugning the judgment of the Appellate Tribunal learned counsel for the Custom Department in support of these appeals made following' submissions-- (i)that the impugned judgment has been passed in utter violation of Chapter XI of the Customs Act and the penal provisions of Section 156(1) Clause 57 of the Customs Act have also been ignored; (ii)that the act of the imports of removing the goods from the warehouse without filing expanding bills of entry was a serious criminal act and it warranted a deterrent penalty.
In support of the submissions made learned. counsel relied on National Construction Company vs. Government of Pakistan (PLJ 1989 Karachi 137).
3. Learned counsel for the respondents/importers (Customs Appeal No, 213 to 220 of 2001) contended as under-- (i)_ that no evidence was led to indicate that the goods were secret! removed and in absence of which the penalty was not justified;
(ii) that there is no provision of penalty under the Custom Act an the learned Tribunal has not referred to any penal section under which he imposed the penalty. He added that in any case the quantum of penalty imposed was not proportionate to the alleged gravity of the act;
(iii) that the penalty provided under Section 156(1) Clause 57 i against the private warehouses whereas the goods were inbounded in a public warehouse, therefore, the appellant cannot be- penalized under the said provision.
4. We have heard learned counsel for the parties and have give anxious consideration to the submissions made as also the precedent can law on which reliance has been placed.
5. For purposes of assessing custom duty on imported consignment the relevant provision of Custom Act is Section 30 which reads as under : "Date of determination of rate of import duty.--The rate of duty applicable to any imported goods shall be the rate of duty in force-- (a)in the case of goods cleared for home consumption under Section 79, on the date on which a bill of entry is manifested under that section; and (b)in the case of goods cleared from a warehouse under Section 104, on the date on which a bill of entry for clearance of such goods is manifested under that section: Provided that, where a bill of entry has been manifested in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered: Provided further that, in respect of goods for the clearance of which a bill of entry for clearance has been manifested under Section 104, and the duty is not paid within seven days, of the bill of entry being manifested, the rate of duty applicable shall be the rate of duty on the date on which the duty is actually paid: Provided further that the Federal Government may, by notification in the official gazette, for any goods or class of goods, specify any other date for the determination of rate of duty".
A bare reading of Sub-Clause (a) of the afore-referred section would show that if the consignment is being cleared on the day when the bill of entry is filed and is not being kept in a bonded warehouse the custom duty would be payable at the rate chargeable on the said date. On the other hand if the consignment is stored in a bonded warehouse the custom duties would be payable at the rate prevailing on the date of actual removal of goods from the warehouse for consumption. In the cases in hand the admitted position is that goods subject matter of this appeal were removed from the bonded warehouse without payment of custom duties and same goods were replaced with goods which had no nexus with the description given in the relevant bills of entry. There is nothing in evidence to show on which date the goods were removed from the bonded warehouse. The only dates available with the custom authorities were the dates on which inbonding bills of entries were delivered to the custom Officer and the date of detection. The appellants in a clandestine manner removed the goods without payment of custom duties which besides being violative of law was contravention of the terms and conditions under which they were allowed to inbond the goods in the warehouse. They cannot be permitted, to take advantage of their own illegal act which resulted in huge loss to the public exchequer. In the afore-referred circumstances it would be appropriate to take the date of detection of removal of goods from the bonded warehouse as the date of exbonding, compare the rate prevalent on that date with the one prevalent on the day of its inbonding and which ever rate is higher should be taken as the rate of exbonding and the custom duties be assessed accordingly. This is in line with an earlier D.B judgment of this Court (Custom Appeal No, 166/99).
6. Coming to the question of penalty the argument of learned counsel for the respondent importer that since the goods were removed from a public warehouse and not from a private warehouse therefore he could not burdened with penalty in terms of Section 156(1) Clause 57 we note that there is no distinction between the removal of goods without payment of custom duties from a private or a public warehouse so for as the application of law is concerned. The appellant was liable to pay the penalty both under Sections 111 of the Customs Act as also Section 156 of Sub-para
57. The Custom authorities shall determine the penal amount strictly in terms of Section 156(57) i,e, an amount be liable to a penalty equal to five times the duty chargeable on the goods so deficient'. The appeals are partly allowed and disposed of in terms noted above.