2004 PLP (Trib (PTD)

S.M. KAZIMI, MEMBER (TECHNICAL). ‑‑‑This judgment disposed of the appeal filed by Messrs Spinning Mills (Pvt.) Ltd., against the Order‑in‑Original No. 16 of 2000 passed by the learned Collector of Customs, Customs House, Peshawar. 2: Briefly, the facts of the case, are that Messrs Khyber Spinning Mills (Pvt.) Ltd., filed ex‑bond Bill of Entry No.1075/22/KSM/2000, dated 10‑2‑2000 for ex‑bonding of their raw material i.e. stale fibre (raw white) declaring that the goods were into‑bonded on 8‑2‑2000. On physical examination of their Warehouse No. PWL‑23/92(Pesh), it was /found, vide the Customs Inspector (Examination's) report, dated 14‑2‑2000 (as recorded on the reverse of the aforesaid ex‑bond bill of entry, that the said goods were not received in the said warehouse till 11‑2‑2000 and that the goods of into‑bond bill of entry No.ST‑274/23/92/99, dated 2‑2‑2000 were received in the warehouse No.PWL‑23/92 and into‑bonded/warehoused between 12‑2‑2000 to 14‑2‑2000. It, therefore, manifested that date of into‑bonding/ warehousing was intentionally misdeclared as 8‑2‑2000 to avail of the benefits of Notification No. S.R.O. 108(1)/95, dated 12‑2‑1995 (which had expired on 11‑2‑2002) which involved Rs.1,997,990 as customs duty and Rs.2,297,688 as sales tax. The ‑Collector of Customs, Peshawar, accordingly, issued a Notice C. No. Coll/Adj/8/2000/2061, dated 8‑4‑2000 requiring Messrs Khyber Spinning Mills (Pvt.) Ltd., to show cause why the aforesaid amount of duty and sales tax should slot be recovered from them and also why penal action under clauses (10‑A), 51,53,57,58 and 77 of section 156(1) of the Customs Act, 1969, should not be taken against them for the breach of sections 19, 20, 89, 104, 107, 114 and 118 of the Customs Act, 1969, read with section 13 of the Sales Tax Act, 1990, and also read with the Notification No. S.R.O. 108(1)/95, and C.G.O. No.25/88. After hearing Mr. Rahatullah Khattak and Mr. Shakeel Ahmad on behalf of Messrs Khyber Spinning Mills (Pvt.) Ltd., and Mr. Muhammad Naeem, Inspector of Customs, the learned Collector decided the case vide his impugned Order‑in‑Original No. 1 6 of 2000 holding that the bill of entry was presented when the imported goods were not yet warehoused and duty/taxes, with benefits of S.R.O. 108(?)/95, were paid when the goods were yet to be assessed by the appropriate officer of Customs and as such provisions of section, 104 of the Customs Act, 1969, were not adhered to. The learned Collector, therefore, held that the duty and taxes involved be recovered in full because the party was not entitled to the benefit of concession available under S.R.O. 108(1)/95. He also imposed a penalty equivalent to the amount of duty and taxes on Messrs Khyber Spinning Mills (Pvt.) Ltd., for the violation of the provisions of section 104 of the Act. Hence this appeal . . . . . 3. During the course of hearing, the learned counsel for the appellant stated that the goods were imported per S.S. Nedloyd Unity's I.G.M. No. 51 of 2000, dated 1‑2‑2000,‑Index No.55 and that they filed into bond Bill of Entry No. ST‑274/23/92/99/2000, dated 2‑2‑2000 for safe transportation of the goods to their Warehouse NO.PWL‑23/92 because the C.B.R.'s Form 'S' No. Final Certificate C. No. 1 (31). S&R‑2/92, dated 3‑6‑1996, for availing benefits of S:R.O. 108(1)/95, was conditional upon "Clearance only from Customs House, Peshawar". They stated that the goods were safe‑transported from Karachi to Gadoon vide Messrs Azad Afridi Goods Transport Co., Karachi's Bilty Nos.001132, 001133, 001134, 001135, 001136, 01137,001138, 001139 and 001140, all, dated 29‑2‑2000 which reached Gadoon Amazai and delivered the said goods in their warehouse No. PWL 23/92 on 12‑12‑2002. He, however, argued that Notification No.S.R.O. 108(1)/95, dated 12‑2‑1995 is for exemption on the goods "imported" within 5 years from the date of issuance of that notification and that the goods were actually imported into Pakistan on 1‑2‑2000 vide Index No.55 of I.G.M. No. 51 of 2000. He pleaded that keeping in view the fact that the date of import (i.e. 1‑2‑2000) is within the 5 years (i.e. within 11‑12‑2000) of the date of. S.R.O. 108(1)/95, dated 12‑2‑1995, the benefits of exemption under the said S.R.O. 108(1)/95 cannot be denied. In reply to a query as to why the goods were transported from Karachi to Gadoon only on 9‑2‑2000 when the bill of entry had been filed at Port Qasim on 2‑2‑2000 and the goods were assessed and also made out of customs charge on 2‑2‑2000, the learned counsel stated that this one week elapsed in arranging for safe transportation although, he has verifiable evidence to justify the reasons of this delay. In reply to another query as to‑ why they filed ex‑bond bill of entry on 10‑2‑2000 at Gadoon before the actual arrival and warehousing of the goods in their PWL No. 23/92 and that too by misdeclaring that the goods had been into‑bonded on 8‑2‑2000, he explained ‑that this was due to clerical error in haste. He prayed for acceptance of the appeal because SI.O. 108(1)/95 is only with reference to the "import" and is not contingent on date of warehousing. He prayed that even otherwise, the lapse, if any, is merely procedural and may, therefore, be condoned. 4. The learned D.R. argued that the appellant had misdeclared the date of warehousing of the goods in their PWL No. 23/92, which shows their intent and purposes. He stated that since the goods were actually warehoused at Gadoon Amazi on 12‑2-2000, the benefits of S.R.O. 108(1)/95 could not be extended in this case having already expired on 11‑2‑2000. They prayed for rejection of the appeal. 5. Having heard the parties and on perusal of record of the case, we find that while there is no doubt that the goods were imported into Pakistan on 1‑2‑2000, this case basically involves the question of applicability of rate of duty (whether under S.R.O. 118(1)/95 or otherwise) on the clearance of these goods. The crucial date for determination of the applicable and effective rate of import duty is prescribed under section 30 of the Customs Act, 1969, as re‑affirmed by section 31‑A thereof. An ex‑bond bill of entry can be filed under section 104 of the Customs Act, 1969, at any time within the period of warehousing under section 98 thereof i.e., for a period of one year from the date their "admission" into the warehouse. Any ex‑bond bill of entry filed before the goods are admitted in a licensed warehouse is not valid ex‑bond bill of entry under section 104 read with section 98. In this case, the goods' of into‑bond Bill of Entry No.ST‑274/23/92/99. dated 2‑2‑2000 entered appellant's Warehouse No. PWL‑23/92 only on 12‑2‑2000 and, therefore, were not entitled to the benefits of S.R.O. 108(1)/95 which was already an expired notification after 2359 hours or 11‑2‑2000. We are unambiguously clear that the rate of duty on any goods is not contingent on the date of import but is rather contingent or the date of filing, a consumption bill of entry (or date of arrival or conveyance carrying the goods, whichever is later) under section 79 or on the date of arrival of filing a valid ex‑bond bill of entry under section 104 (after admission of the goods in a warehouse in terms or section 98 but before the expiry of period of the permissible warehousing). Section 30 of the Customs Act, 1969, read with section 31‑A thereof, makes it abundantly clear that the, applicable and effective rate of duty in relation to "imported" goods is to be determined with reference to the crucial date stated above. The appellant's claim to be assessed with reference to the date of actual import of goods into Pakistan itself does not hold a firm ground because they did not come with clean hands by filing ex‑bond bill of entry before actual admission of, the goods in their PWL/23/92 and also by misdeclaring that the good were warehoused on 8‑2‑2000 while actually these were warehoused (by admission in their PWL No.23/92) on 12‑2‑2000. In view of the clear and unambiguous provisions of section 30 read with sections 31‑A, 98 and 104 of the Customs Act, 1969, we confirm the impugned order and the appeal stands disposed‑ of as dismissed accordingly. 6. Inform all concerned accordingly. 7. Announced. C.M.A./1060/Tax (Trib.). Appeal dismissed.