2012 PLP 1876 (SCMR)

ANWAR ZAHEER JAMALI, J.

This civil petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973 is directed against the order dated 7-3-2012, in Special Customs Reference Application No.598 of 2011, passed by a learned Division Bench of the High Court of Sindh at Karachi, whereby the said reference application was dismissed in limini, and consequently order of the Customs Appellate Tribunal Karachi ("the Tribunal") dated 8-7-2011 in Customs Appeal No.K-528 of 2011, was maintained.

2. In his reference application before the High Court, the petitioner has proposed following questions in terms of section 196 of the Customs Act 1969 ("the Act of 1969) for the opinion of the High Court:-- "(1) Whether the adjudication proceedings and all proceedings which followed were in violation of CGO:10/ 1972? (2) Whether any charge of even mis-declaration under section 32 of the Customs Act, 1969 can be established without referring the metal for Chemical Examination by either Steel Mill or Pakistan Engineering Board? (3) Whether the provisions of section 32-A of the Customs Act, 1969 were attracted and whether the applicant committed any fiscal fraud in terms of section 32-A of the Customs Act, 1969? (4) Whether the applicant was afforded an opportunity to defend his case and whether the applicant was treated in accordance with law? (5) Whether the fundamental right of the applicant was violated and the applicant was not given the fair trial?".

3. Brief facts of the case are that the petitioner had imported a consignment of 334 cartons of mortise locks, iron hinges with screw from China vide IGM No.1523/2006 dated 28-8-2006, for which he had filed goods declaration through his clearing agent, declaring its import value as US $ 2367.60 and gross weight 8395 kilograms. On opening of said consignment for inspection, its original invoice relating to the description, specification and quantity of mortise locks, iron hinges and screws from Messrs Shanghai Shoudeng Industrial Co. Ltd., China was retrieved showing actual import value of the consignment as US$ 50663.50. Accordingly, the petitioner was issued show cause notice for violating the provisions of sections 32(A) and 192 of the Act of 1969, punishable under sections 14A, 77, 86 of 156(1) of the Act of 1969.

4. In reply to the said show cause notice, the petitioner denied the allegations levelled against him relating to mis-description and quantity of the imported consignment as well as its import value, and stood his earlier stance.

5. After proceedings in the matter, on 20-2-2007, order in original No.2 of 2007 was passed against the petitioner for the reason and wherein the matter was decided against him in terms of paragraph 6 of the said order, which reads as follows:-- "

6. According to the mushirnama, invoice was found from a carton and the carton belonged to the respondent importers, a fact not rebutted by the respondent's counsel during the course of hearing. Examination report of the shed staff also speaks of the invoice found during the examination. Although the retrieved invoice does not contain the name of the importers but all other contents, i.e. invoice number and date, description, supplier's name and address, etc. were same as mentioned on the invoice provided by the importers at the time of examination. In addition, the invoice found during examination contained complete postal address of the supplier along with telephone number and fax number whereas the invoice presented by the importers did not contain those particulars. Therefore, it is established that the invoice retrieved from the container during physical examination of the goods was actual invoice and invoice provided by the importers at the time of examination was fake. The question whether the products were copper coated or otherwise is immaterial since the charge against the importers is of causing colossal loss to the government revenue by wrong declaration of customs value in view of the discovery of original invoice during the examination. Since the charge levelled against the importers has been established without any shadow of doubt, the goods are confiscated. However, an option is given to the importers in terms of section 181 of the Customs Act 1969 to redeem their goods on payment of 50% fine of the actual Customs Value and on payment of duty/taxes leviable thereon. A personal penalty equal to 50% of the actual customs value is also imposed in terms of subsection 14(A) of section 156(1) of the Customs Act 1969. The release of the goods will, however, be subject to NOC from the honourable Court of Special Judge (Customs and Taxation), Karachi."

6. Invoking the remedy of appeal in terms of section 193 of the Act of 1969 against the order-in-original, appeal was preferred by the petitioner before the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi, which was rejected by the Collector in terms of para 5 of his order, which reads as follows:-- "

5. I have examined the case record and given due consideration to the arguments made before me. Clearly, the invoice recovered from the container relates to the goods imported in this case in all respects. Therefore, the actual transaction value of the goods was US$ 50663.50 and not US$ 2367.60 as declared by the appellants through the fabricated invoice presented with the GD. In the face of the documentary evidence, the arguments advanced by the learned counsel are not tenable. The penal action taken in this case is also in consonance with the gravity of offence committed by the appellants. Therefore, I hold that the impugned order is correct in law and on facts and there is no reason to interfere with the same. The appeal is rejected accordingly."

7. Against such concurrent findings of fact recorded by the two forums below in the hierarchy under the Act of 1969, further remedy was followed by the petitioner through an appeal before the Customs Appellate Tribunal, Karachi vide Customs Appeal No.K-528 of 2011, which too was dismissed by the Tribunal, vide its judgment dated 8-7-2011 for the reason that it was evident from the record that the goods declaration showing import value of consignment as US$ 2367.60 was bogus and manipulated one, while the original invoice retrieved from the carton belonging to the petitioner's consignment showed its actual import value as US$ 50663.50 with correct description of the imported consignment.

8. After dismissal of appeal by the Customs Appellate Tribunal, Karachi, a reference application was filed by the petitioner before the High Court of Sindh at Karachi in terms of section 196 of the Act of 1969, which was dismissed by the impugned order dated 7-3-2012.

9. A perusal of case record reveals that the petitioner had imported a consignment of 334 cartons of mortise locks, iron hinges with screws from China, bearing (Machine No.36319 dated 16-9-2006) import invoice No.MO6AZOO4 dated 2-8-2006 of Messrs Shanghai Shoudeng Industrial Co., Limited, China filed by the petitioner through their clearing agent declaring import value of the said consignment as US$ 2367.60 with gross weight 8395 kilograms and net weight of 8061 kilograms. When these goods declaration was referred to the concerned appraisement staff and physical examination was conducted by the Government Officer in presence of the clearing agent of the petitioner, on opening of the container, another invoice of Messrs Shanghai Shoudeng Industrial Co., Limited, China bearing the same invoice number, description, specification and quantity of locks, hinges and screws showing actual import value as US$ 50663.50 was retrieved, as against the declared fake import invoice submitted by the petitioner. In this background of the matter, the consignment was seized under section 168 of the Act of 1969 and after completion of relevant formalities show cause notice dated 24-11-2006 was issued to the petitioner in this regard by the adjudicating authority, who subsequently after receipt of its reply, proceeded and passed its order-in-original against the petitioner holding him guilty of mis-declaration of the value of the imported consignment thereby attempting to cause loss of revenue to the tune of Rs.1,622,

972. All the four forums below in their respective orders against the petitioner have thoroughly examined the claim of the petitioner and found it bogus and untenable at law.

10. On our directions, contained in the earlier order dated 27-8-2012, today, Mr. Sohail Muzaffar, learned Advocate Supreme Court has placed on record photostate copy of purported fake invoice showing the import value as US$ 2367.60 as well as the copy of original invoice issued by Messrs Shanghai Shoudeng Industrial Co. Limited, China, which was retrieved from the imported consignment of the petitioner at the time of inspection. After seeing this record, we have no hesitation to hold that the petitioner was guilty of mis-declaration of the imported consignment and concealment of material facts, thus, he was rightly proceeded against by the customs authorities in accordance with law, which culminated in various orders against him. Learned Division Bench in the High Court of Sindh has aptly taken into account all these aspects of the matter, therefore, such conclusion in favour of revenue/respondent is unexceptionable.

11. The upshot of the above discussion is that leave to appeal is refused and this petition is dismissed. MWA/J-5/SC Petition dismissed.