2010 PLP (Trib (PTD)

MUHAMMAD ARIF MOTON (MEMBER JUDICIAL).

The appeal, filed by the appellant, is directed against Order-in-Appeal No.990 of 2008, dated 9-4-2009 passed by the Collector of Customs (Appeal) maintaining the Order-in-Original No. 2243 of 2007 dated 10-12-2007, passed by the Additional Collector of Customs (Adjudication), Model Customs Collectorate of PaCCs, Custom House, Karachi.

2. Brief facts of the case as reported are that the Appellate electronically filed Goods Declaration (G. D) vide CRN-454253 dated 15-11-2007 in respect of import of a consignment of stainless steel of second choice T-200 series, weighing 25791 kgs, under H.S. Code 7219.1300, at total invoice value of US$ 36107. The appellant determined his liability of payment of applicable duty and taxes and sought clearance of the subject consignment under section 79(I) of the Customs Act, 1969. In order to check as to whether the importer paid the correct and legitimate amount of duties and taxes the under reference Goods Declaration was selected for scrutiny in terms of section 80 of the Customs Act, 1969. Scrutiny of the Goods Declaration in the light of examination report revealed that the importer had misdeclared the description, quality and value of the goods. As against the importer's declaration the subject goods were found to be Stainless steel of prime quality in mill packing, assessable @ US$ 4/Kg. The aforesaid facts proved that the importer deliberately concealed the actual contents of the GD and committed an act of misdeclaration in terms of description, quality and value in order to suppress the value, wilfully and with mala fide intention to defraud the Government from its legitimate Revenue amounting to Rs.1334506. Considering the available data of similar kind of goods in terms of section 25 of the Customs Act, 1969 and Rule 107(a) of the Customs Rules, 2001, the determined value of the offending goods was worked out to Rs.6308267. After adjudication the learned Additional Collector passed order-in-original, the relevant extract being as follows:

"The of ending goods were confiscated under clauses (14) and (14A) of section 156(1) of the Customs Act, 1969 the appellant was however given option under section 181 of the Act, read with S.R.O. 487(I)/2007 dated 9-6-2007 to get the offending goods redeemed on payment of redemption fine equal to 50% of the ascertained value in addition to leviable duty and taxes. A cumulative penalty of Rs.2,000,000 was also imposed on the appellant for contravening the provisions of Customs Act, 1969 and under clause 11 (c) of section 33 of the Sales Tax Act, 1990."

3. The aforesaid adjudication order was challenged before Collector (Appeals) who also vide his order dated 9-4-2008 rejected the appeal by observing that:-- "I have examined record of the case and also considered submissions of both the sides. There was dispute about Prime and Secondary quality of the impugned goods. It was accordingly ordered that the sample be subjected to laboratory test in order to ascertain quality of the impugned items. The test report received from Pak. Steel Mills is not credible nor comprehensive enough to clearly determine, the quality of the subject consignment, stainless steel. It is surprisingly too vague and does not mention at all about percentage of the chromium found in the samples tested. It was not possible that the Stainless Steel did not contain any ingredient of chromium. This report being sufficiently flawed and deficient in material particulars and ignoring core aspects hence can't be trusted or made basis for decision in this case. The appellants have accordingly failed to prove that the imported goods are secondary quality Stainless Steel as claimed and declared by them. The impugned order therefore, does not suffer from any legal infirmity or impropriety. In view of the above facts and evidence I do not find any merit in the appeal. It is therefore, dismissed."

4. The learned counsel appearing for the appellant put forth the following contentions:

(a) That the orders-in-original/appeal are stereotyped in nature and do not make any sense as no reasoning has been given by respondent Additional Collector for disregarding the re-examination request and ASTM Standard (Austanic Steel Testing Method) for confirmation of the quality of stainless steel. This states that the "Prime" quality of stainless steel T-200 series should contain nickel contents of 3.5% or above. The goods having nickel contents below that falls under the category of "Secondary" quality. Whereas, respondent Collector (Appeals) despite forwarding the sample of the consignment himself through PaCCs for the test of ascertaining the percentage of nickel, brushed aside the findings of the test report issued by Pakistan Steel Mills confirming the nickel contents at 0.95% and also discarded the certificate issued by the manufacturer M/s. Saleem Steel Plant owned by the Steel Authority of India as not being credible nor comprehensive enough in nature and, therefore, unreliable. (b) That the appellant declared the goods as of secondary quality, by virtue of its characteristics i.e. having uneven edges, stains, variation in thickness and roller marks (not noticeable through naked eyes, unless a magnifying glass is used). (c) That the characteristics of the goods of the appellant fails to answer the criteria dated 20-4-2006 laid down by the customs for determination of quality (prima/secondary) in consultation with the manufacturers and dealers of steel products namely International Industry Limited, Peoples Steel Mills Ltd, Pakistan Steel Mills, Pakistan Iron and Steel Association and Pakistan Pipe Manufacturing Association. Circulated as minutes of the meeting among the various stakeholders functionaries which clearly depict that prime quality of iron and steel goods/product should contain a mill test certificate along with the following data namely (i) specification of the goods/grade (ii) sizes and dimensions (iii) the chemical composition (iv) the mechanical properties (v) heat number and (vi) date of production. No mill test certificate was forwarded by the supplier by virtue of the fact that the goods were of secondary quality, which further stood proved/verified from the declared value rendering it "Secondary" as per the formulated criteria. (d) That the labels affixed on each carton do not in any way indicate the quality of the goods i.e. "Prime". Whereas, the inscribed abbreviation SSLN1 (Stainless Steel Low Nickel 1) does in no way render the goods as prime. Instead the said abbreviation with clarity confirms the goods as secondary as stands for nickel contents less than 1%. The label indicating the goods as being of imported quality was placed on record for perusal and examination by the Tribunal. (e) That the appellant imported 3 consignments of the same quality goods against single pro forma invoice bearing No. MML 1305/07 dated 17-9-2007. Except the subject consignment the rest were destined to Lahore and were cleared by them upon filing Goods Declarations bearing No. LDRY C 8642, 8646 dated 5-12-2007. The Customs officials at the Lahore Dry Port examined the goods minutely and noticed a difference in the length, width, thickness and rough edges and accepted the declaration and allowed clearance while endorsing examination on the reverse of GDs reading as "Stainless steel coils, second choice T-200 series, non-magnetic mix finishes, .thickness-12mm and lighter, sheet size: 1000x2000 mm and larger". On the contrary, the PaCCs officials posted at examination transmitted a faulty report, despite the fact that the goods were in accordance with the declaration. Also the processing officials instead of consulting the criteria laid down in minutes of the meeting or relying upon the reports of Pakistan Steel or Salam Steel took the examination report for granted and termed the appellant's goods as "Prime" thereby tarnishing his unblemished and clean record of past (18) years. (f) That had the respondent Additional Collector ordered a re-examination as requested by the appellant, then transmitted re-examination report would have proved without any ambiguity the stance of the appellant that his goods were of "Secondary" not of "Prime" quality as further supported from the proceedings carried out in the two aforesaid similar consignments of the appellant, clearance of which was also sought by the appellant through PaCCs against CR. No.I-HC-454253 dated 15-11-2007 and I-IB-PBW-441804, dated 5-11-2007. The goods of these consignments were also termed as prime quality goods and contravention reports were prepared. Resultantly, show-cause notices bearing Cr. No.09866 dated 30-11-2007 and 09287 dated 14-11-2007 were issued. The agent of the appellant during the course of the hearing requested the respective adjudicating authorities for re-examination, which was accepted and the re-examination reports transmitted subsequently by the examining officials proved the stance of the appellant. Resultantly the show cause notices were vacated vide Orders-in-Original Nos.2159 of 2007, dated 14-11-2007 and 2628 of 2007 dated 30-11-2007. (g) That respondent Additional Collector did not allow re-examination of goods upon appellant's request. Since requests are invariably accepted by Customs Authorities, the refusal on the part of the officer concerned indicates a discriminatory and confiscatory treatment meted out to the appellant and is abuse of power and discretion vested in him by the legislature. It tantamounts to snatching away the right of the appellant available to all and sundry under the Customs Appraisement and Examination Scheme and is purely mala fide. (h) That no charge under section 32 or 32(A) of the Customs Act, 1969 can be invoked against the appellant as levelled in the show-cause notice and upheld in the orders-in-original/appeal being the dispute of quality is a debatable issue based on personal opinions and may differ. Determined Quality based on opinions does not alter the specifications/description of the goods. Despite difference of opinion it remains the same. It is. for this reason that quality was not made an issue anywhere either in the Customs Act, Customs Rules, 2001 and Customs General Orders. None of these instruments contain the definition of "Prime" & "Secondary". Resultantly, notification issued for imposition of redemption fine vide No. 487(I)/2007, dated 9-6-2007 for misdeclaration speaks about description, weight excess quantity and value. This does in no way suggested the imposition of redemption fine for difference in quality. In consonance of the Act/Rules, sub-para. B (ii) of Para 101 of CGO 12/2002 dated 15-6-2002 is relevant and which directs the field formation that an importer may not be charged for mis declaration under section 32 of the Customs Act, 1969, in the following situation: (i) Where an importer makes a correct declaration on Bill of Entry or opts for 1st appraisement for determination of correct description, P.C.T. heading or quantity of goods. (ii) When a consignment is found to contain goods of description other than the one declared falling under separate PCT heading but chargeable to same rate of duty. (iii) Where the description of goods is as per declaration but incorrect P.C.T. heading has been mentioned in the bill of entry no misdeclaration case under section 32 of the Customs Act, 1969, be made out provided there is no change in the rate of customs duty as a result of ascertained P.C.T. heading. (i) That it makes no difference that whether the goods in question are "Prime" or "Secondary" because both types of goods fall under HS Code 7219.1900 attracting a levy of customs duty @ 5% sales tax @ 15% and income tax @ 5%. Hence, no misdeclaration in material particular to the extent of specification/description for which redemption fine has been notified by the Federal Board of Revenue. By virtue of the said fact the appellant's case falls within the four corners of sub-Para. B (ii) of Para 101 of CGO 12/2002 dated 15-6-2002 and is supported by reported judgment of Appellate Tribunal in Customs Appeal No.K-151/2006 dated 28-1-2008. (j) That no charge for misdeclaration of value in the given circumstances can also be revelled against the appellant, since the appellant discharged the burden. of proof regarding value criteria as laid upon him under Rule 109 of the Customs Rules, 2001. The appellant's value has to be treated as transaction value within the parameters of section 25(1) of the Customs Act, 1969. In case of valuation dispute the onus of proof stands shifted to the respondent who is under legal obligation to produce material to substantiate the alleged misdeclaration of value of the goods as stipulated in para. 78 of CGO 12/2002 dated 15-6-2002. The value relied upon by the respondent is a nullity in law as it is not based on evidential invoice or data of import as expressed in Rule 110 ibid and also does not pertain to the corresponding contemporary period mentioned in Rule 107(a) ibid. In fact assessment has been made arbitrarily/ unilaterally by the Customs of the imported consignment without any legal sanctity since the data repository relied upon has been discarded by Federal Board of Revenue vide their letter C.No.1(25) S/Val/98 dated 22-7-2000. Also no evidence as per their mandated requirement of law was provided by the Customs. Reliance is placed on judgments of High/Supreme Courts reported as 1986 MLD 190, PLD 1996 Karachi 68, 2002 PTD 2957, 2004 PTO 38, 2005 PTD (Trib.) 617, 2006, PTD 909, 2008 PTD 1250 and 2008 SCMR 438. (k) That full amount of leviable customs duty and taxes was paid on 14-11-2007. The goods were detained and allowed to be shifted to CPF Bond in the month of January 2009 under orders of the Hon'ble High Court of Sindh which shows mala fide of the respondent.

5. The Appraising Officer submitted Parawise comments/retrieved examination reports/label affixed on the packages of the consignment and supported the impugned orders while emphasizing on the following points: (i) That the certificate relied upon by the appellant has already been rebutted by the adjudication officer in his order-in-original in detail. Also the test report of Pakistan Steel Mills has already been comprehensively rebutted by the learned Collector (Appeals) vide Para 5 of the order-in-appeal. (ii) That in two other consignments goods were found secondary in re-examination and were correctly released by the PaCCs upon issuance of order-in-original by the competent authority. The impugned consignment has no nexus with the released consignments. (iii) The appellant has never been harassed in the past and this supports their claim for their excellent profile. (iv) That PaCCs' envisaged self assessment system is for convenience and speedy clearance of goods. (v) That the 1st examination report indicates the thickness, size width of every roll, date of shift, which establishes that the goods are of "Prime" quality. (vi) That no uneven edges or stains or roller marks are present on the goods. (vii) That the report of the Pakistan Steel Mills does not mention any of the above defects. (viii) That the sticker of specifications is pasted only on prime quality goods. (ix) That the provisions of Para 101 of CGO 12/2002 are not applicable on the amended provisions of Chapter-XVIA viz. Sections 79, 80 and 32 A of the Customs Act, 1969. The provisions of Para 101 are actually a clarification of S.R.O.374(I)/2002, which have already been cancelled and were issued when there was no clearance of cargo through self assessment in terms of Pakistan Customs Computerized System (PaCCs). (x) That the applicability of a single HS Code on different qualities of goods does not mean that an importer gets a license to import the goods of misdeclared description of higher value, resulting in payment of less revenue as against actual leviable Revenue.

6. Rival parties heard and case record perused. Following issues are framed for consideration of this forum. (i) Whether the impugned goods are of "Prime Quality" in view of data examination and test reports on record? (ii) Whether the phenomenon of determination of Quality of goods attracts the mischief of sections 32 and 32A of the Customs Act, 1969 particularly when divergent opinions/reports in respect of the same goods are on record? (iii) Whether SRO No.487(I)/2007 envisage imposition of redemption fine on goods when the main bone of contention is the disputed quality particularly where there is no mis declaration of material particulars? (iv) Whether production of evidential data of actual physical contemporaneous imports in terms of section 25 read with para. 78 of Customs General Order 12/2002 dated 15-6-2002. Further read with sub-Rule (a) of Rule 107 and Rule 110 of Customs Rules, 2001 further read with judgment of superior courts is mandatory on the part of customs administration' for enhancement of transaction value?

7. In order to arrive at a fair and judicious conclusion in respect of issue No.1 a scrutiny of the data available on record viz. the declaration made by the appellant, posted examination/re-examination reports, labels attached on the goods and minutes of stakeholders meeting dated 20-4-2006 is deemed essential:

(a) Declaration. Stainless Steel Coils, 2nd choice, T-200 series. (b) Initial examination report: During the physical examination the goods are stainless steel (Non magnetic) in coils, Mills packed, size 0.30 mm x 1000 mm of each coil (grade SSLNI, finish B, Date and shift 6-10-2007 and supplier name and address "Steel Authority of Industries Ltd. (a Government of India Enterprises) Salem Steel Plant India, printed on label pasted on each coil), series not shown qty=7 coils bearing Nos. 430459, 430465, 431039-40-42-43-44 I/O India, on the basis of physical examination and physical appearance of the goods, it reveals that the goods are of prime quality as the same in mill packing with equal sizes in width and gauge and which can be very clearly seen through the images. The processing officer may be checked the quality of goods (Prime/Secondary) in the light of mill test certificate and analysis report and examination report, image are attached total we of cargo is 26530 kgs vide KPT wt: card No.161107025 dated 16-11-2007. (c) Re-examination report. Stainless steel sheet non-magnetic type in coil of prime quality size; 0.30x1000 mm x coil. Grade SSLNI I/O India confirmed that the goods are of prime quality rep sample is being forwarded to Custom House Group as desired total Cargo Weight 26430 Kgs vide MPS/KPT Weighbridge certificate No.250108032 dated 25-1-2008 images attached. (d) Label Affixed on subject goods. Purchasers Address Middle East Hot/cold Rolled Stainless Steel Port of Loading: Chennai Port of Unloading: Karachi Packet Number: 431039 Grade; SSLNI: Finish Dimensions: 0.30 x 1000 xc Nett Wt: 3.927 mt Gross WT Supplier MADE IN INDIA SAIL SALEM STEEL PLANT SALEEM-636013 INDIA (e) Label to be affixed on Prime Quality Goods JSL LIMITED (COLD ROLLING DIVISION) O.P. Jindal Marg, Hisar, Haryana India 125005 HRC No. 007745WG 02 COIL NO. 1000402404 GRADE J4 SIZE (TXW) MM 0.800X1250.000 CONDITION/EDGE 2B TE QUALITY PRIME NET WEIGHT 4.355 MT (e) Parameter laid down in the minutes of the meeting dated 20-4-2006 'by. the Customs and Experts of Iron and Steel for Determination of Quality. (i) For prime quality products a standard Mill Test Certificate in original shall invariably by required, which should specify the followings. a) Specification of the goods/grade b) Sizes/Dimension. c) The chemical composition. d) The mechanical properties. e) Head numbers. f) Date of production. (ii) The following import documents shall also contain the same characteristic of the product as contained in the Mills Test Certificate referred in para 2A(i) above. (d) Pro forma invoice. (b) Letter of Credit/Contract (d) Invoice. (iii) The examination staff shall tally heat numbers and Sizes of the goods with those given in the Mill Test Certificate while ascertaining the very nature of the goods. (iv) Declared prices of the goods shall also be taken into consideration while ascertaining the prime or vice versa status of the goods. (v) The goods shall be termed as secondary quality, if they are not co-relatable with Mill Text Certificate produced or where information given in para. 2A (i) above is not mentioned in Mill Text Certificate. B. Following aspects/parameters will only be indicative in overall. ascertainment of the prime or otherwise status of the goods and shall not be considered as final determinates in isolation of the parameters prescribed in para. 2A above. (i) Manufacturing date of the produces; which can be either before or after the date of L/C or Contract. (ii) The specific packing of the products; as the product can be packed in any suitable manner/mode. (iii) The damage of edges, surface due to transportation or loading/unloading would not affect the status of the goods i.e. prime/secondary quality. (iv) Rusty outer surface of the coil/sheets due to in vogue-humidified effect would not alter quality of the goods.

8. The examination report initially carried out and posted in the system is most significant, as it termed the goods in question as prime quality on the basis of physical appearance and packing with equal sizes in width and gauge and data printed/written on the pasted labels. Nevertheless since the examiner was not sure about his opinion, he recommended to the processing officer to check the quality of the goods in the light of mill test certificate and analysis/examinations reports. Instead of transmitting a message to the appellant to scan the mill test certificate, invoice, packing list and B/L, the processing Officer confirmed the vague and non-categorical opinion of the examining officer in respect of quality of goods by staging that goods were of prime quality without assigning any reason and prepared the contravention report for the purpose of adjudication. That when the appellant's clearing agent during the course of hearing informed respondent No. 1 that his goods are of secondary quality on account of (a) the goods are without mill test certificate (b) sheets' edges are uneven (c) each sheet has variation in thickness (d) the sheets contain roller marks on the surface which may or may not be visible through naked eye unless magnifying glass is not used and (e) the percentage of nickel is much more than ASTM standard as against prime which contain 3.50% or more in T-200 series stainless steel and requested for re-examination of goods in his presence in addition to drawal of samples for obtaining test report from a well equipped laboratory of repute for obtaining confirmation about the contents of nickel in the goods.

9. That instead of acceding to the request of the Clearing Agent, the respondent Additional Collector despite being mandated under the norms of natural justice and fairness turned down the request and proceeded with the adjudication in an non-transparent manner defeating impartiality, neutrality and independent application of mind. Whereas the respondent Collector (Appeals) despite forwarding the sample through PaCCs for testing to Pakistan Steel Mill for confirmation of nickel contents in the impugned goods, disregarded the test report No.PSIPL/2203/Exp-034/08 dated 7-2-2008 in which the test was conducted as per ASTME-1009 confirming that the goods contain nickel content to the extent of 0.95% rendering the goods as secondary quality by virtue of contents of nickel lesser than 3.5% in stainless steel sheets T-200 Series. The respondent Collector (Appeals) held that the report of Pakistan Steel Mills was neither credible nor comprehensive enough to clearly determine the quality and being vague, as it did not mention at all about the percentage of chromium. Irony of the fact is that no inquiry in this regard was made by the customs authorities or respondent Collector (Appeals) from the Pakistan Steel Mills while forwarding the sample for testing. Straying from the proceedings is not appreciable. In case the chromium was not discussed in the test report by the PSM despite not being asked for, also renders the product in question, as `secondary' because T-200 series of "prime" quality stainless steel should contain minimum 11% chromium in addition to other components. The goods not containing Chromium to the extent of 11% has a possibility of being something other than stainless steel. Proceeding in the case right from beginning has been done in a very arbitrary, crude and mala fide manner as is evident from the labels affixed on the consignment, which nowhere indicate that the goods are of prime quality. The labels affixed on prime quality goods produced by the appellant as evidence and placed on record prominently indicate the said fact. The quality of the goods being secondary is also being confirmed if those are analyzed as per laid down parameters vide minutes of the meeting dated 20-4-2006 e.g. (i) prime quality goods should contain mill test certificate (which is missing in the impugned consignment) (ii) Manufacturing date of the product is irrelevant in determination of quality of the goods which can either be before or after the date of L/C or contract. The shift No. mentioned on the affixed labels are immaterial and do not render the goods as prime. (iii) The mode of packing is also irrelevant as the product can be packed in any suitable manner and mode. All products whether prime or secondary are packed in mill packing, therefore, the mode of packing is not a criterion for determination of the quality of the goods and (iv) the value of secondary goods is always lower, which is in the instant case. Keeping all the attributes of the goods in the light of examination report, labels, test reports and parameters laid down in the minutes of meeting dated 20-4-2006, this forum is of the opinion .that the goods are of secondary quality and answers issue No.1 in the negative.

10. That when description of the goods remains the same and difference of opinion arises regarding the quality of the goods, charge of misdeclaration under sections 32 and 32A cannot be invoked by virtue of the fact that no false declaration was submitted. Secondly both qualities of goods fall under the same HS Code attracting the notified duties and taxes under the said head. The only criteria left for determination of the product in question will be its attributes and. declared value, which may vary besides being contentious and to be decided either by an expert or through any laid down parameters or definition given in the Customs Act, 1969, Rules and Regulation framed thereunder. The difference in quality of the goods does not alter its composition except in the appearance, fineness and viability. The description/specification of the contentious goods remain the same. The Para-B (ii) of Para 101 of CGO 12/2002 dated 15-6-2002 is relevant, containing direction for the customs that an importer may not be charged for misdeclaration under section 32 of the Customs Act, 1969, in the following situation; (i) Where an importer makes a correct declaration on bill of entry or opts for 1st appraisement for determination of correct description, PCT heading of quantity of goods. (ii) When a consignment is found to contain goods for description other than the one declared falling under separate PCT heading but chargeable to same rate of duty. (iii) Where the description of goods is as per declaration but incorrect PCT heading has been mentioned in the bill of entry no misdeclaration case under section 32 of the Customs Act, 1969, be made out provided there is no change in the rate of customs duty as a result of ascertained PCT heading.

11. The arguments of the departmental representative that said Para of the CGO is not applicable as it was the clarification of Notification No.374(I)/2002 dated 15-6-2002, which stood cancelled and was issued when there was no clearance of cargo through self assessment in terms of Pakistan Customs Computerized System, (PaCCs) is without any foundation because SRO No.487(I)/2007 dated 9-6-2007 is continuation of SRO No.374(I)/2002 in which pitch of redemption fine has been notified by the Board. The notification is binding on all Collectorates allowing clearance either manually or electronically. Since, Para B (ii) of Para 101 of CGO 12/2002 dated 15-6-2002 was incorporated by the Federal Board of Revenue in the Customs General Order for facilitation/minimization of the hardships of the importer, it has not been to this date amended, altered or rescinded. The stance of A.O. also stood nullified from the prescribed penalties in notification number 487(me)/ 2007 without any mention of misdeclaration/redemption fine. On the contrary the stance of the appellant that no misdeclaration in terms of section 32 of the Customs Act, 1969 is attracted in respect of issue No.(ii) above is fortified by the recent judgment delivered by Hon'ble Lahore High Court reported as 2009 PTD

467. As such the issues Nos.(ii) and (iii) are answered in the negative.

12. When the Customs Authorities dispute the value of any goods, they take upon the responsibility to produce material to substantiate that the value of the goods has been misdeclared, while supplying the evidential invoice of the product in question of the country of export and period of import in Pakistan expressed in sub-rule (a) of rule 107 of Customs Rules, 2001 as per direction contained in para. 78 of CGO 12/2002 dated 15-6-2002 or data of import expressed in Rule 110 ibid. Contrary to this the Customs authorities relied upon the data base/repository of assessment, which stood withdrawn by the Federal Board of Revenue vide Letter C.No. 1(25) S/Val/98 on 22-7-2000. The reliance upon the data-base instead of evidential invoices/data of contemporaneous imports is palpably illegal because such valuation or assessment falls under the ambit of sub-rule (iii) of rule 110. (Prohibited methods). The department in the instant case miserably failed in submitting any provision of the Act/Rules or any other notification nullifying the proposition of law and did not rely upon any admissible or convincing material e.g. evidential invoice on the strength of which charge of misdeclaration was levelled against the appellant thereby rendering the charge of misdeclaration as unsubstantiated and based on whimsical considerations. Admittedly the department has failed to discharge the onus of establishing that the price declared by the appellant of the imported goods is not correct. As such issue No. (iv) is answered D in affirmative, The same view has been taken by the Hon'ble Supreme Court of Pakistan and high Courts in judgments reported as 1986 MLD 190, PLD 1996 Karachi 68, 2002 PTD 2957, 2004 PTD 38, 2005 PTD (Trib) 617, 2006 PTD 909, 2008 PTD 1250 and 2008 SCMR 438. 13. .In view of above findings the impugned orders are set-aside and the subject appeal is accordingly allowed. Delay and detention certificate F may be issued if so required. C.M.A./95/Tax (Trib.) Appeal allowed.