2005 PLP 2568 (PTD)

KHILJI ARIF HUSSAIN, J.

The petitioner called in question the order, dated 6-12-1990, passed by Assistant Collector of Customs, Appraisement/respondent No.5, whereby his claim for refund of portion of duty and taxes which has been collected on account of 10% loading in the FOB value was rejected. The petitioner was importing Singer Sewing Machines and other component parts of sewing machines from Japan, which value was to be determined after adding 10% loading charges and loading ships were issued by Custom Authorities. In 1983 petitioner started importing refrigerators from Thailand and inadvertently clearing agent of the petitioner started quoting in the Bills of Entry for the import of refrigerators 10% value slip relating to sewing machines. Thus imported refrigerators were wrongly assessed after 10% loading added in it. The petitioner by his letter, dated 24-6-1990 and 11-8-1990 claimed refund of Rs.3,16,757 being excess amount paid from April, 1983 to 5-5-1989 and Rs.20,93,584 also being excess amount paid between 6-6-1989 to 18-9-1989. The Assistant Collector of Customs', respondent No.5, vide his letter, dated 16-12-1990 order for refund of duty charges by adding 10% in the FOB value and directed the petitioner to furnish copy of the relevant bills of entry so that the cases may be formally decided. It was observed that only such cases will be considered, the goods under which were cleared provisionally in terms of section 81 of the Customs Act, 1969. The petitioner was also directed to furnish Insurance Guarantee in lieu of cash payment of excess amount of duty worked out on account of 10% loading charges for future consignment of the refrigerators till final valuation advice was received from the Controller of Valuation. The matter was scrutinized in the Valuation Department and initially provisional Valuation Slip No.6 of 1990, dated 4-3-1990 advising assessment of Singer Refrigerators parts and accessories thereof on the basis of FOB invoice price plus 10% loading charges plus other duties chargeable was confirmed by Import Final Value Slip No.2 of 1991, dated 23-1-1991 maintaining the issue basis as was specified in import provisional value slip. The petitioner questioned said value before Respondent No.5, who vide his order-in-original, dated 6th August, 1994 held that in view of the final valuation advice received from Controller of Valuation all cases which were previously assessed at 10% loading charges under section 81 of the Customs Act, 1969 were required to be finalized after 10% loading charges and accordingly claim for refund merits no consideration. The petitioner questioned the said order in appeal and then in revision which were dismissed on 1-9-1994 and 25-3-1995 respectively. Mr. Shafaat Hussain, learned Advocate for the petitioner, mainly argued that under section 25 of the Customs Act respondents were required to accept FOB value declared by the petitioner and there was no basis on which 10% loading charges could be added while determining the value of consignment before the respondent. Messrs Haider Iqbal Wahniwal and Mr. Raja M. Iqbal, learned Advocates for the respondent, argued that the petitioner and consignor were associated with each other and valuation for the purpose of levying the duty was made on the self-declared value of the petitioner. 10% value as loading charges was added to cover the privilege being earned by the petitioner from Messrs Sanyo Universal Electric Company Ltd. The contention of the learned counsel for the respondent on the face of it carried weight particularly in view of finding of facts recorded that consignors and consignees were associated with each other when their purchase could not be treated as an independent purchase in open market. Contention of the learned Advocate for the petitioner that by mistake they have added 10% loading charges in the FOB bill value and accordingly entitled for refund of the same have no merit as for the purpose of determining value of the imported goods at the relevant time normal price has to be determined by the Authorities, whereas after amendment under subsection (2) of section 25 it is actually price which has to be taken into consideration. The respondent has determined "normal price" which is exercise of prior under writ jurisdiction, in the absence of any cogent evidence, cannot be interfered and accordingly petition is dismissed. These are the reasons of our short order, dated 30-9-2004. M.B.A./S-142/K Petition dismissed.