2003 PLP (Trib (PTD)

MIAN ABDUL QAYYUM, MEMBER (JUDICIAL).‑

This appeal is directed against the Order‑in‑Original No. 4682 of 2001, dated 17‑4‑2001 (wrongly mentioned as 7‑4‑2001 in the .memorandum of appeal) passed by the learned Assistant Collector Customs, Faisalabad Dry Port, Faisalabad.

2. The appellant availed benefit of S.R.O. 818(I)/89, dated 9‑8‑1989 in the matter of imported consignment of 12200 Yards of Lace vide Bill of Entry No.601, dated 3‑2‑1999. This Lace was to be used in production of garments which were to be exported. The appellant however, did not utilize the entire quantity of the imported Lace but re exported only 9379 Yards within the stipulated period in terms of S.R.O. 818(1) of 1989 and for the remaining 2821 Yards, the appellant requested the learned Collect: of Customs through letters, dated 19‑1‑2000. 21‑4‑2000, 22‑6‑2000, 2‑10‑2000 and 30‑1‑2001 for issuing directions to the appropriate officer for making assessment of custom duty and sales tax separately in respect of unused quantity of Lace.

3. The learned Assistant Collector, Dryport, Faisalabad vide order, dated 17‑4‑2001, informed the appellant about various amounts on account of custom duty, sales tax, income‑tax and surcharge which were to be paid within a week, failing which an action was to be initiated under section 202 of the Customs Act, 1969. The details of the amounts are as under:‑‑ "Customs Duty Rs.8,049 Sales Tax Rs.3,890 Income Tax Rs.1,491 Surcharge Rs. 4,023 Total: Rs.17,453

4. Through letter, dated 14‑5‑2000, the appellant was again asked to deposit the following amounts within a week or to face recovery proceedings:‑‑ "SUBJECT: ASSESMENT OF IMPORT DUTY ON BALANCE QUANTITY OF A CONSIGNMENT OF NYLON LACE IMPORTED VIDE B/E NO. 601, DATED 3‑2‑1999 MEANT FOR RE‑EXPORT. "Please refer to your letter No. CL/P&I/4581/01, dated 10‑5‑2001 on the subject cited above. You are, therefore, finally directed to deposit customs duty and other taxes leviable on the aforesaid import consignment as per detail below amounting to Rs.15,515 within a week positively otherwise recovery proceedings shall be initiated against you under section 202 of the Customs Act, 1969, and amount will be recovered as arrears of Land Revenue. Customs Duty Rs. 8,049 Sales Tax Rs. 3,890 Surcharge. Rs. 3,576 Total: Rs.15,515"

5. The amount of surcharge was reduced from Rs.4,023 to Rs.3,576 in the letter, dated 14‑5‑2001.

6. The learned counsel for the appellant has contested the imposition of surcharge only on the ground that section 83(2) of the Customs Act, 1969 dealing with surcharge was not applicable in the case of appellant because the appellant had already furnished post dated cheque and indemnity bond in view of S.R.O. No.818(I)/89. dated 9‑8‑1989.

7. The learned D.R. on the other hand defended the imposition of surcharge on the basis of letter, dated 20‑11‑1999 issued by the Central Board of Revenue explaining that section 83(2) was applicable in such like‑cases.

8. We have considered the arguments and have also examined the record.

9. A careful examination of the contents of the bill of entry available on record shows that it was in respect of the goods for home consumption although it carried an endorsement' showing that the goods were imported temporality for subsequent re‑export under S.R.O. No. 818(I)/89, dated 9‑8‑1989. Admittedly out of goods imported under the said S.R.O. the appellant could re‑export only 9379 Yards within the stipulated period in terms of the said S.R.O. and for the remaining 2821 Yards, the appellant requested the learned Collector of Customs for issuing directions for making assessment of custom duty and sales tax. The information communicated to the appellant contained an amount showing surcharge as well as it is this amount which the appellant has challenged on the ground that there is no provision in the Customs Act for leaving surcharge on goods which have been imported under S.R.O. referred to above We find no substance in the contention because the goods no doubt were imported under the provisions of S.R.O. No.818(I)/89, dated 9‑8‑1989 but the bill of entry was filed showing these goods for home‑consumption and since the appellant could not utilize the whole quantity of the goods within the specified period under the S.R.O. therefore, he is legally bound to pay not only the leviable tax but also the surcharge and this is what has been clarified by the Central Board of Revenue, Islamabad, vide letter, dated 20‑11‑1999.

10. Having considered all aspects of the case, we find that there is no merit in the appeal, which is dismissed. C.M.A./727/Tax(Trib.) Appeal dismissed