2025 PLP 765 (PTD)

MUHAMMAD JUNAID GHAFFAR, J.

Through these Reference Applications, the Applicant has impugned a common Judgment dated 22.05.2019 passed by the Customs Appellate Tribunal, Karachi in Customs Appeal No. K-07/2017 and other connected matters, proposing the following questions of law:- "A) Whether on the facts and circumstances of the case the learned Customs Appellate Tribunal has erred in law not to consider that "taking into consideration" the official website wwe.icegate.gov.in named as "Ice Gate-e Commerce Portal Central Board of Excise and Customs" which reveals that the container number, shipping bill number and other export documents were matched with the corresponding particulars mentioned in the Goods Declaration filed in Pakistan, however, the import concealed the export price of the goods declared to the Indian Customs and was not much higher side? B) Whether on the facts and circumstances of the case the learned Customs Appellate Tribunal has erred in law not to consider that as per section 79 of the Customs Act, 1969, the importer / respondent is not only required to declare complete particulars of the imported goods correctly in case if any discrepancy is observed in payment of revenue or declaration of any particulars of the imported goods. The provisions of sections 32(1)(2) and (3A) shall be invoked against him? C) Whether on the facts and circumstances of the case the learned Customs Appellate Tribunal has erred in law not to consider that the transaction value is the value, which has been actually paid or payable in terms of section 25 of the Customs Act, 1969. Therefore, the transaction value of the subject imports is the value declared to Indian Customs at the time of exports of subject consignment. Further that where the actual payable transaction value will be higher that the V.R. the higher value of the goods will prevail for assessment purpose? D) Whether on the facts and circumstances of the case the learned Customs Appellate Tribunal has erred in law not to consider that in terms of section 6 of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001 the Customs Officers are the appropriate officers to collect and recover the amount of sales tax and income tax related to the imported and exported cargo. At the outset it is clarified that as per sections 32 and 32A of the Act, all the taxes including sales tax and income tax can be recovered? E) Whether the learned Customs Appellate Tribunal has erred in law not to consider that actual transaction value of the subject consignment was found on Indian Ice-Gate website, an authentic official source. The same reveals that the importer has deliberately concealed the actual contents of the Goods Declaration by mis-declaring the value of the goods in order to suppress duty / taxes wilfully and with mala fide intention and have attempted to evade the Government legitimate revenue? F) Whether the learned Customs Appellate Tribunal has erred in law not to touch the merit of the case in respect of gross mis-declaration of value and allowed appeal. Moreover, has not considered the order passed by the Honourable Supreme Court of Pakistan in the case of Collector of Sales Tax and Central Excise, Lahore v. Zamindara Paper and Board Mills, etc. (PTCL 2007 CL 260) and Supreme Court's order dated 10.11.2003 in the case of Sadruddin Alladin v. Collector of Customs in Civil Petition No. 775-K /2003 where it was held that the merit of the case cannot be scrapped on sheer technicalities? G. Whether in view of the established facts and relevant provision of law the finding of the Customs Appellate Tribunal are not perverse for non-reading and / or mis-reading of the available record to the determent of revenue and the consequent benefit to the respondent importer on the basis of leniency?"

2. Learned counsel for the Applicant has read out the order and submits that the Tribunal has erred in law by ignoring the information gathered from the website which provided the actual transactional value of the goods in question, and therefore, the impugned order is liable to be set aside. According to him, the Tribunal was not justified in setting aside the orders passed by the forums below merely by relying upon the Valuation Ruling under section 25A of the Customs Act, 1969 ("Act") as it was not relevant in the facts and circumstances of the case. He has prayed for setting aside the impugned order.

3. We have heard the learned Counsel for the Applicant and perused the record and we are not inclined to even issue notice in this matter. Facts available on record reflect that Respondents herein imported various consignments of Tyres and Tubes from India, assessment of which was made as per existing Valuation Ruling and after the goods were assessed and released, pursuant to some information, the matter was investigated after taking into consideration the information available on some purported official website (www.icegate.gov.in) and it is the case of the Applicant that the values were incorrectly declared by the Respondents and the assessment made on the basis of Valuation Ruing was incorrect, whereas, the assessment ought to have been made under section 25 by accepting the transactional values so arrived at on the basis of the information gathered from the said website. A Show-Cause Notice was issued and thereafter, matter was adjudicated against the Respondents; however, through impugned order the learned Tribunal has allowed the Appeals in the following terms:- "

05. Record of the case has been carefully examined and the argument put forth by the appellants and respondents have been duly considered. The cases of the Appellants are that they have imported consignment of "Tyres and Tubes, with or without Flaps of different Brands" of Indian origin, which were allowed release after passing of Clearance Orders under section 83 and Rule 442 of the Act / Rules by the competent authority prescribed therein on the strength of valid Assessment orders passed by the Authority defined in Section 2(a) under Section 80 and Rule 438 of the Act / Rules for levy of duty and taxes with the application of value determined by the Director, Directorate General of Valuation under the provisions of Section 25A of the Act, in exercise of the powers vested upon them through SRO 371/(I)/2002 dated 15.06.2002. Subsequently, the Directorate General of Post Clearance Audit conducted Audit under section 2692) and thereafter framed contravention report on the basis of information gathered from the Indian official website "Ice gate e-Commerce Portal Central Board of Excise and Customs" which revealed that the export price of the goods declared to the Indian Customs is on much higher side. They further argue that even the Valuation Ruling specifically mentions that where the actual payable transactional value is higher than the value as determined in the Valuation Ruling such transactional value shall be taken for the purpose of assessment of duty and taxes. The respondents calculated value of the imported consignments by adding element of freight in the FOB value declared in Indian rupees as is available on the fore-stated Indian official website and thereafter, the said value was converted into US dollars.

07. The stance of the appellants as explained by their learned counsel is that they made assessment of duty and taxes in the light of prevailing Valuation Ruling which are issued / determined after detailed deliberations with all relevant stakeholders and also after considering the prevailing international prices, therefore, the transactional values declared by the importers are rejected and assessment is made on the basis of the Valuation Ruling. The system of valuation ruling is widely in place for assessment purposes in order to ensure uniformity in the valuation and to avoid undue discretion. So many consignments are daily cleared by customs by following these valuation rulings ignoring the lower values declared in GDs. Accordingly, the goods were released by the Collectorate without raising any objection. Further section 25A of the Customs Act, 1969 where under the aforesaid Valuation Ruling was issued, starts with Non-Obstante clause which means the said provisions of law has overriding effect over section 25 (which mentions about the transaction al value) ibid. the counsel for the appellants further stated that after Valuation Ruling is issued under section 25A, the next relevant provision of law is section 25-D and cannot be reversed to section

25. The learned counsel also invited attention towards Disclaimer of Ice gate. The emphasized, that neither section 25 of the Customs Act, 1969 nor section 25-A ibid mention, about the Ice gate. Further the Indian Customs has not certified the value given on their Website. According to the Counsel, the exporters in general, inflate value of their goods to obtain some legal benefit like rebate etc. The Counsels added that values given on Indian Website (Ice gate) do not carry any legal sanctity. The added that had it been so, the Directorate General of Customs Valuation, could have revised its values upward as given in the Valuation Ruling No. 659/2014 dated 29.03.2014.

07. We are not inclined to endorse the arguments of the respondent Department. The goods of the appellant were not self-assessed goods under section 79 of the Customs Act, 1969 as stated but instead were released after passing of valid Assessment / Release orders under the provisions of Sections 80 and 83 and Rules 438 and 422 of the Act / Rules for levy of duty and taxes on the basis of Valuation Ruling No. 659/2014 dated 29.03.2014 determined by Director, Directorate General of Valuation under Section 25A of the Act, as the goods on which Valuation Ruling is applicable can never be auto-cleared by the WeBOC module by virtue of having no programming in this regards. We subscribe to the arguments of the learned Counsel of the appellants that there is no legal sanctity of the Indian official Website. Their arguments carries weight as section 25-A of the Customs Act, 1969 whereby the aforementioned Valuation Ruling has been issued, opens with Non-Obstante clause meaning thereby that it overrides section 25 of the said Act. We find tremendous arguments of the learned Counsel of the appellants that if the respondent department was so convinced about the legality and validity of the Indian Website, they could have requested the Directorate General of Valuation, Karachi to revisit Valuation Ruling No. 659/2014 dated 29.03.2014 in the light of value available on Ice gate. We are afraid that we are not in agreement with the respondents in regards to the alleged mis-declaration of value as the value available on the Website Ice gate cannot be construed as declaration of the appellant upon examination of the definition in Section 2(kka) of the Act, the charge of mis-declaration could only be leveled on the basis of direct evidence, namely evidential invoice of the same country of the period given in Rule 107(a) of the rules as ordered in Paras 78 and 101 of CGO 12/2002 dated 15.06.2002 and Clause (d) of SRO 499(I)/2009 dated 13.06.2009. The Customs Appeal No. 837 of 2016 vide GD No. KAPE-HC-90657-04-01-2016, containing Polyester Plain Cringle Chiffon Fabric, whereas, all aforesaid mentioned appeals pertaining to "Tyres and Tubes"

08. In view of the above circumstances, we allow these appeals and set aside the impugned Order-in-Original No. 209/2016-17 dated 26.12.2016, Order-in-Original No. 211/2016-17 dated 27.12.2016, Order-in-Original No. 430/2016-17 dated 24.11.2016, Order-in-Original No. 207/2016-17 dated 05.12.2016, Order-in-Original No. 179/2016-17 dated 17.10.2016, Order-in-Original No. 496516/2016 dated 21.03.2016, Order-in-Original No. 182/2016-17 dated 24.10.2016, Order-in-Original No. 212/2016-17 dated 03.01.2017, Order-in-Original No. 233/2016-17 dated 28.04.2017, Order-in-Original No. 166/2016-17 dated 07.11.2016 along with issuance of delay detention certificate where applicable.

4. We have at the very outset, confronted the learned Counsel for the Applicant that as to how and in what manner, reassessment could be made in respect of goods for which a Valuation Ruling has been issued in terms of Section 25 of the Act, and duly applied and to this, he has not been able to controvert this legal proposition. Section 25-A1 confers a power to determine the Customs value and starts with a Non-Obstante clause and provides that notwithstanding the provisions contained in section 25, the Collector of Customs on his own motion, or the Director of Customs Valuation [on his own motion or] on a reference made to him by any person [or an officer of Customs], may determine the customs value of any goods or category of goods imported into or exported out of Pakistan, after following the methods laid down in section 25, whichever is applicable. It is clear that the provision of section 25A ibid would have an overriding effect while applying the values determined under it and it is only the methods of section 25 which are to be followed; but in no manner any assessment can be made under section 25 when there is a Valuation Ruling under section 25A already in field. It is not understandable as to how the Applicants through a Show-Cause Notice have made an attempt to reassess the goods under Section 25 of the Act by showing intention to accept transactional value of the goods in question. Notwithstanding this, even the proviso in Section 25-A whereby, it is provided that where the value declared in a goods declaration or mentioned in the invoice retrieved from the consignment is higher than the value determined under subsection (1) of section 25-A, such higher value shall be the customs value was inserted by way of Finance Act, 2017, whereas, the instant case is prior in time. Moreover, it is not a case where the transactional value was available with the department or the value mentioned in the invoice was retrieved from the consignment at the time of making any assessment under Section 25 of the Act. In this case the goods were already released pursuant to a statutory Valuation Ruling and therefore, any information gathered from the website pursuant to which an attempt has been made to make assessment by accepting the transactional value under section 25 ibid cannot be sustained. On our query we have been informed that the Valuation Ruling in question was never amended pursuant to such information from the website. And lastly, we have also noted that in the Show-Cause Notice there again are vague allegations, whereas, neither the values so made available from the website have been mentioned; nor respondents have been confronted with any such unit value independently, and in a generalized manner, the Show-Cause Notice had been issued.

5. In view of hereinabove facts and circumstances, we do not see any reason to interfere with the order passed by the learned Tribunal. The question so proposed have not been drafted properly as it is only one question which is relevant that "Whether in the facts and circumstances of the case [at least prior to Finance Act, 2017] can goods be assessed under section 25 of the Act on the basis of a transactional value when a Valuation Ruling issued in terms of section 25A of the Act is already in field" and the same is answered in negative, against the Applicant and in favour of the Respondents. Accordingly, these Reference Applications being misconceived are hereby dismissed in limine. Let copy of this order be sent to Customs Appellate Tribunal in terms of subsection (5) of Section 196 of the Act, whereas, office to place copy of this order in all above connected Reference applications. MQ/C-6/Sindh References dismissed.