' TASSADUQ HUSSAIN JILANI, J.---This appeal is directed against the judgment, dated 19-7-2001 passed by the Customs Excise and Tax Appellate Tribunal vide which it dismissed appellant's appeal directed against the order of the Collector of Customs (Appraisement) Lahore, dated 10-6- 1998 in terms of which he held the shippers Messrs Eastman Chemical of USA and appellant Indenters responsible for misdeclaration of quantity and value of the goods subject-matter of this appeal in violation of the Import Policy Order.
2. Facts in brief are that Messrs Army Welfare Pharmaceutical manufacturers of raw material of asprine and paracetamol drugs imported acetic anhydride which is an essential ingredient of the afore-referred drugs. The requisite certificate of import was issued by the Central Board of Revenue for the import of 306 M.T. Of acetic anehydride pursuant to which it placed an order with Eastman Chemicals B.V: through its Indenters/agent i,e, the appellant (Messrs Arfeen International (Pvt.) Ltd.
Karachi). The order placed was for the supply of 306,000 K.Gs. To be shipped in packed 1360 new drums of 225 K.G. Each. In terms of the shipping schedule the parties agreed that 36,000 K.Gs. Of chemical shall be shipped from Rotterdam and remaining 2,70,000 K.Gs. From Kingsport USA. It was further agreed that the latter quantity shall be shipped in two parts i,e, 126,000 K.Gs. To be shipped on 24-11-1997 and the remaining 144,000 K.Gs. On 10-12-1997. When the afore-referred shipment/consignment of 126,000 K.Gs. Reached Dryport Lahore and inspected by the Customs Authorities on 14-1-1998 it was found that although the bill of entry qua the shipment reflected a weight of 86640 KGs but as per the shipping papers and spot inspection it was 126,000 K.Gs. This consignment was confiscated. A case vide F.I.R. No, 7 was registered. Show-cause notices were issued to the Importer Army Welfare Pharmaceutical, clearing agents' Messrs Eastman Chemical and Indentors which ultimately culminated in the order of confiscation of goods and penalty of 10 million on the appellant/Indenters and Messrs Eastman Chemicals the containers of the shipping company were directed to be confiscated. This was challenged in appeal by all the affectees the appeals of shipping lines was allowed but that of the Eastman and the appellants were dismissed.
However, the quantum of penalty was reduced from 10 million to one million each. The consignment confiscated ' was given to the Army Welfare Pharmacetutical on payment of usual custom duties and taxes.
3. Learned counsel for the appellant/ Messrs Arfeen International has made following submissions in support of this appeal:
(i) That the appellant in no way connected with misdeclaration as it had merely sent an indent to Eastman (Seller/shipper) which was to ship the consignment directly to the importer. The error took place at the time of export and appellant could not be held responsible.
(ii) That both the Tribunals below have failed to appreciate that the appellant did not act as an agent of Messrs Eastman Company and could not be held vicariously liable for the acts of the principal.
(iii) That there is no evidence whatsoever connecting the appellant with the alleged misdeclaration. The shipper never informed the Army Welfare Pharmaceutical or the appellant of the changes in the shipping.
(iv) That the appellant was neither aware of the discrepancy of the shipping documents nor did the appellant had any role in the preparation of those documents.
(v) That in the first consignment, according to the learned counsel there was no irregularity but there were changes in the shipping schedule in the 2nd and 3rd consignment. These were communicated to the Army Welfare Trust in October, 1997 in terms of which the quantity of the second lot was reduced from 126 M.Ts. To 86640 M.Ts. (contained in 3 containers of 18,000 K.Gs. And 4 containers of 8.160 M.Ts. Each) and the third consignment was increased from 144.00 M.Ts. To 180.00 M.T. (contained in 10 containers of 18.00 M.Ts. Each). The total quantity of import remained the same.
4. Learned counsel for the respondent/Custom Department defended the impugned judgment by submitting as under:--
(i) That the appellant was an agent of the principal i,e, Messrs Eastman Company and was therefore, liable for the act of the principal. This liability according to the learned counsel is mandated in terms of section 209 of the Customs Act.
(ii) That the Eastman Company admitted its fault and has deposited the penal amount in terms of the impugned judgment.
(iii) That the appellant has come to this Court with unclean hands and he is not entitled to any indulgence.
5. We have heard learned counsel for the parties and have given anxious consideration to the submissions made.
6. Admittedly the appellant was an agent of Messrs Eastman and Company in terms of the agreement, dated 28-10-1997 and at page 3 of the body of the appeal this factual position stands admitted by the appellant. Under section 209 of the Customs Act the liability of the agent of the act of its principal is acknowledged. Subsections 2 and 3 of which mandates as under:--
(2) Where this Act requires anything to be done by the owner, importer or exporter of any goods, any such thing done by an agent, clerk or servant of the owner, importer or exporter of any goods shall, unless the contrary is proved, be deemed to have been done with the knowledge and consent of such owner, importer or exporter so that in any proceeding under this act the owner, importer or exporter of the goods shall also be liable as if the thing has been done by himself.
(3) When any person is expressly or impliedly authorized by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purposes: ' Provided that where any duty is not levied or is short levied or erroneously refunded on account of any reason other than wilful act, negligence or default of the agent, such duty shall not be recovered from the agent.
7. According to appellant's own showing (page 6 of the grounds of appeal) the total acetic anhydride weighing 306 M.Ts. Was to be shipped in terms of the following schedule:--
(a) 36.00 M.Ts. In 2 containers (18.00 Mts each)
(b) 126.00 MTs in 7 containers (18.00 MTs each)
(c) 144.00 MTs in 8 containers (18.00 MTs each)
' The first afore-referred lot of 36 M.Ts. Was shipped and was got cleared by the Army Welfare Trust but with regard to the second and third lot referred to above there were changes in the shipping schedule and the appellant admits in para 7 of the appeal that those changes were communicated to the appellant and Army Welfare Trust in October, 1997 and the quantity of second lot was reduced from 126 M.Ts. To 86.660 M.Ts. But notwithstanding this change when the shipment arrived although the bill of entries was with regard to 86.640 M.Ts. But the quantity in the containers was 126 M.Ts. It was clearly established before the Tribunals below that the documents prepared by the Eastman indicated a net weight of 86.640 M.Ts. Whereas the quantity shipped was 126 M.Ts. This discrepancy was obviously an attempt to hoodwink of custom authorities and to sell the excess quantity of acetic anhydride weighing 36 M.Ts. In black market which could be used for manufacturing Heroin. The appellant indirectly admitted the fault of its principal in the letter, dated 27-1-1998 to which reference has been made in para 37 of the Collector's order. The letter reads as under:-- "Reference to our various discussions on the issue of excessive shipment of Acetic Anhydride; we had reported the matter to our Principals Messrs Eastman and after looking at the files, they have finally detected that four containers which were invoiced under No, 4-38026025 were excessively shipped".
' It is not denied that Army Welfare Pharmaceuticals did not place the order of import directly with Messrs Eastman Company but it was always routed through the indenters i,e, the appellant. It was the duty of the appellant to check and verify whether the import of consignment being indented by him was in accord with the Import Policy Order. It is C rather late in the day for the appellant to take up the plea that he did not act as an agent of Messrs Eastman or that he was not aware that excess quantity of the chemical in question had been shipped. More so when the said firm has accepted the liability by depositing the penalty in terms of the impugned judgment.
8. There is yet another aspect of the matter. There are concurrent findings of facts against the appellant. Nothing has been placed on record to indicate that those finding of facts are against the weight of evidence/import. No question of law has been raised to warrant interference in this appeal. In the afore-referred stand the appeal having no merit is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.