2006 PLP 133 (PTD)

"(1) Whether the impugned order passed by the Honourable Appellate Tribunal is not in conformity with the law laid down in PLD 1996 Karachi 68 and PLD 1991 SC 963? The appellant craves for an answer in negative? (2)Whether the appellant has made any mis-declaration in terms of section 32 of the Customs Act, 1969? The appellant craves for an answer in negative? (3)Whether the allegations contained in show-cause notice are pre- . mature? The appellant craves for an answer in affirmative?" The appeal was admitted to consider the above questions of law. Heard Mr. Sohail Muzaffar, learned counsel for the appellant, and Mr. Raja Muhammad Iqbal, learned counsel for the respondent. Mr. Sohail Muzafar has not pressed questions Nos.1 and 3 and has stated that the answer to question No.2 shall clinch the issue. The relevant facts are that the appellant is an exporter, who filed bill of export declaring the weight of the polyester cotton blended fabric at 12,987 Kgs. The Customs officials on physical examination detected that the declared weight was 25% less and found that it was a case of misdeclaration attracting the application of provisions contained in section 32 of the Customs Act. 'A show-cause notice was issued. The appellant disputed the finding and contended that the weight declared was correct. However, the contention was not accepted and vide order in original, dated 7-11-2000 it was held that there was misdeclaration in respect of the weight of the cloth, which, if not detected, would have succeeded in loss of Revenue on account of excess duty drawback. Ultimately a penalty of Rs.400,000 was imposed under clause (14) of section 156(1) of the Customs Act. Being aggrieved the appellant preferred appeal before the Customs, Excise and Sales Tax Appellate Tribunal, who, vide impugned order, reduced the penalty to Rs.20,

000. Mr. Sohail Muzaffar has contended that the learned Tribunal has not given any finding that there was any misdeclaration as envisaged under section 32 of the Customs Act and in the absence of such finding the penalty is not maintainable. A perusal of the impugned order shows that the Tribunal has merely discussed the quantum of penalty from which it can be inferred that the only point raised before the Tribunal was in respect of the quantum of penalty. We have asked Mr. Sohail Muzaffar to show us the memo. of appeal before the Tribunal to ascertain whether the plea raised before this Court was taken up before the Tribunal. The copy of memo. of appeal before the Tribunal is not available with Mr. Sohail Muzaffar as, the case was conducted by a consultant before the Tribunal and the copy of said document has not been furnished to Mr. Sohail Muzaffar. Mr. Raja Muhammad Iqbal, learned counsel for the respondent, has contended that the point raised before this Court was never agitated before the Tribunal and the appeal was pressed on the point of quantum of penalty only and, therefore, the Tribunal reduced the penalty from Rs.400,000 to Rs.20,

000. In the absence of any material before us showing that the point raised before us was agitated before the Tribunal, it is not possible for us to give any opinion and consequently the appeal stands dismissed. S.A.K./K-66/K??????????????????????????????????????????????????????????????????????? Appeal dismissed.