2008 PLP (Trib (PTD)

Dr. RIAZ MUHAMMAD, MEMBER (JUDIICAL).

The Customs Department Faisalabad had filed this appeal against the Customs Order-in-Appeal No. 32 of 2007, passed by the learned Collector (Appeals), whereby he had set aside the order of adjudication/Order-in-Original No.33 of 2007, dated 28-6-2007 regarding the confiscation of imported goods and had allowed their ex-export by the importer by making a minimum 10% value addition to the import value i.e. C&F.

2. The brief facts of the case as set up in memo. of appeal are that Messrs Dawood Textile Printing Industries Limited, Faisalabad imported a consignment of 100% Polyester Printed Fabrics (HS Code 5407, 4400), consisting of 4030 pieces (100425.00 Meters) packed in 110 cartons from . Dubai, UAE and filed GD No.HC 1742, dated 4-5-2007 along with allied documents through Messrs Nasir Cargo, Customs Clearing Agents. It has been urged in the appeal that the shipment had been made from Jabel Ali (Dubai) to Karachi and not from China direct. The certification of Dubai Chamber of Commerce could not be relied upon. The certificate by Messrs Shaoxing County Wonderful Imp Exp. Co., Keqiao, Shaoxing, Zhenjing, China issued to Messrs KASAB Textile Trading (L.L.C.) Importer, Exporters and Wholesalers of Textiles, A-Eahidi Street, Habib Bank AG Zurich Building, Bur Dubai-UAE (supplier of the consignment from Dubai) upon which the importer has based his reliance does not mention country of origin. It only mentions, "supply" of the fabric. This certificate is neither reliable to determine the country of origin, nor admissible under rules. The certificate by Dubai Chamber of Commerce m d Industry is also not reliable and admissible under law/rules to determine the country of origin. More importantly as per provisions at Public Notice No.1 of 2007, dated 27-2-2007 issued by this Collectorate as per C.B.R's letter, C.No.3(13)TAR-1/04, dated 17-2-2007 "import of polyester fabric from UAE will be subject to furnishing of certificate of the manufacture. The polyester fabric from UAE shall be viewed to be of banned origin if imported from UAE and not accompanied by certificate of the manufacturer, establishing the origin'. In the instant case the importer has failed to produce the mandatory requisite certificate of origin in terms of the said Public Notice read with C.B.R's. letter referred to above. Grammage of the Fabrics i.e. 51 mg/sq meter as ascertained by the Customs Lab Dryport, Faisalabad also supports the fact that the fabric in question is of Indian origin. Representative samples were also sent to a Fabrics Export Committee Karachi and according to their findings the fabrics in question is of Indian origin. It is very important to mention that the packing list provided by the importer and furnished by the Clearing Agent shows that marks and numbers as Rani, Ferozi, Mehandi, Jambli, Rama, Devdas etc. all such nomenclatures not only depict but amply substantiate the goods to be of Indian origin. It has further been urged that the import was in contravention of the Import Policy. It was established that the Polyester was of Indian origin. The learned Collector (Appeals) had failed to appreciate that if such like imports are allowed to re-export the goods, it would encourage them to perpetrate such like contraventions. The unscrupulous importers will not hesitate to repeat their exercise thinking that the only punishment, if apprehended, was to be visited with the re-export and it would be win-win situation for them. Unless there was any deterrence, the irresponsible importers will not be deterred.

3. Arguments were heard. The representative of the Depart ment repeated the assertions pleaded in the memo. of appeal. The learned counsel for the importer/respondent, defended the impugned order.

4. I have gone through the record minutely. The appeal is hardly tenable for so many reasons. There must be cogent reasons to establish that the Polyester was of Indian origin. The intermediate exporter Kasab Textile had issued invoice that the Polyester being bought by Messrs Dawood Textile/importer was of China origin. On a letter head of Shaoxing Country Wonderful Imp and Exp Co. Ltd. Keqiao, Shaoxing, Zhejiang, China printing is in English as well as in the Chinese. It was certified that the above said company of China was exporting the Polyester to Kasab Textile of Dubai. Fax No.86-575-558-9870 is very much mentioned in the certificate. The Customs Authorities could have got verified the certificate from the exporting company of China by Fax which they had not. Grammage certificate that the fibre was 51 gm/sq meters has been given much importance in the memo. of appeal. It cannot be said authoritatively that the Polyester of this weight was only and only manufactured in India and no where else. The Public Notice No.1/07 issued by the learned Collector, Faisalabad has hardly any legal sanctity behind it. A Public Notice had been published that some importers were importing Polyester Fabrics against the Import Policy Order, so in future they will have to produce certificate issued by manufacturer. It is not proved that the Public Notice had been brought to the notice of the importer. The department had sent some pieces of the fabric to Fabric Expert Committee, Karachi. The pieces had not been collected and sent in the presence of the importer. Further the Committee being skeptical of its jurisdiction had written to Mr. Mehmood Saquib Shah that the Committee knew him since long and the pieces sent by him, to the best of knowledge of the Committee, were of Indian origin. No. sanctity is attached to any Fabric Expert Committee, Karachi in this respect. Lastly, the department has given much importance to the labels as Ferozi, Rani, Jambli, Devdas and Rama and concluded that the Polyester must be of Indian origin. There were some other labels named as Red, Lemon, Fanta, Green, Gold, Maroon, Pink Tomato and Coffee. If, the labels are to be believed that it did not mean that the fibre was of English origin by virtue of labels. Further similar consignment, apprehended at Karachi, had been allowed to be re-exported and there should be no discrimination at Faisalabad. All the reasoning given by the appellant are mere conjectures and surmises. The importer could not be blamed on hypothetical reasons. In fact, the consignment should have been released, but the importer had not filed any appeal against the order of the learned Collector (Appeals) and department which had filed the appeal. With this discussion, the re-export is allowed as ordered by the learned Collector (Appeals) and the appeal is dismissed. C.M.A./46/Tax (Trib.) Appeal dismissed.