2010 PLP (Trib (PTD)

MUHAMMAD ARIF MOTON, MEMBER (JUDICIAL-II).

This order will dispose of Customs Appeal No.K-482 of 2008, filed by the appellant against Orders-in-Appeals Nos. 1232 to 1235 of 2008 dated 6-9-2008, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi.

2. Briefly stated facts of this appeal ascertained after careful perusal of entire record are that a consignment said to contain "Wooden Strips" arrived at the Karachi Port from UAE on 18-5-2008 in the name of Messrs Umer and Co., Karachi, and the shipping company accordingly filed vessel Information Report (VIR) and carrier's declaration (C.D). In the meantime, the Customs authorities of Model Customs Collectorate of PaCCS in pursuance of some information initiated examination of the said consignment so arrived although the Goods Declaration (G.D) in terms of section 79(1) of the Customs Act, 1969 (hereinafter called to be "the Act") had not yet been filed by the importer for declaration of the particulars of the goods. However, the shipping agent Messrs United Marine Agencies on the advice of UAE based cargo booking agent Messrs Al-Rayaheen Air Cargo and Clearing LLC, UAE, made online amendment in the carrier's declaration after three days of the arrival of the vessel thereby amending the Vessel Information Report (VIR) and carrier's declaration (C.D.) in the name of respondent importer Messrs Safe International, Karachi, and description of goods from Wooden Strips to Miscellaneous Goods. The respondent/ importer on 11-6-2008 filed G.D. in terms of section 79(1) of the Act making his declaration of imported items as Miscellaneous Goods of various descriptions and paid leviable duty and taxes amounting to Rs.1,096,154 under self-assessment provisions of section 79 of the Act. The G.D. so submitted was accepted by the Model Customs Collectorate of P. ACS and Customs Reference Number I-HC-673709-110608 was duly allotted to the G.D. which is also given in the show-cause notice and the order-in-original. After two weeks of filing of the G.D., the Additional Collector of Customs, Model Customs Collectorate of PaCCS, Custom House, Karachi electronically issued a show-cause notice bearing Case No.CR-14428-27062008 on 29-6-2008, on the premise that when the consignment was under examination, the initial importer in association with the shipping agent and the respondent importer, on the advice of cargo booking agent of UAE, made online amendment in the VIR and carrier's declaration wherein the declaration was Wooden Strips chargeable to zero per cent customs duty. The allegations levelled at in the show-cause notice were denied by the respondent above-named on the grounds that he has imported miscellaneous items from UAE against a valid bill of lading and commercial invoice and he has filed G.D. declaring true and accurate particulars of the consignment (not Wooden Strips) in terms of section 79 of the Act, and denied to have played any role in the amendment made by the shipping agent on the advice of UAE cargo agent. The Adjudicating Officer namely the Additional Collector of Customs PaCCS did not agree with the submissions made before him and he confiscated the offending goods under the provisions of section 156 of the Act. However, he gave an option to redeem the confiscated goods on payment of fine equal to 50% of the value of the impugned goods along with imposition of a personal penalty of Rs.500,000 for respondent importer. The Adjudicating Officer also imposed a personal penalty of the same amount on the shipping agent and the initial importer whose name was originally appearing in the VIR and carrier's declaration.

3. The respondent above-named preferred an appeal before the Collector of Customs, Sales Tax and Federal Excise (Appeals), Karachi, against the redemption fine and penalties, who modified the order-in -original, in the following terms:-- " Perusal of the show cause and the ONO show that myriad of sections and provisions of the customs law have been quoted, referred and invoked with no sifting of role and targeted application of law. Without juxtapositioning and delineating the role of each person specially of the appellants, the bunch of provisions could not be applied in vacuum but on the existence of hard facts, grounds and irrefutable piece of evidence in each case on merits. It has also to be appreciated that each section and provision is enacted for specific purpose in the law. Presence of strong ingredients and ample evidence are essential conditions to determine violation and specifically apply the relevant provision of law accordingly. Moreover, the SCN and the ONO are overwhelmingly brimming over the arguments about the initial weird developments of Carrier Declaration, amendments etc. which ceased to exist any more and became inevitably irrelevant so far the present case was concerned. The central theme and focus of the arguments in the ONO revolves around the first part of the case. The case has also surprisingly been allowed to suffer more on account of failing to determine real owner of the goods. Two importers have been charged and considered against one consignment and the sane goods. The actual goods shown on the GD were not declared nor owned by the first importer Messrs linter, while the wooden strips or pellets shown on the Carrier Declaration were not declared neither owned by Messrs Khalil Enterprises. In such circumstances the act of the one person is different from the other while the present owner/appellants had nothing to do with the Carrier Declaration. A parallel and irreconcilable position exists in the case. There was no iota of credible evidence to justify shifting of responsibility of the original declaration on the appellants. Messrs Khalil remains in the field as the lawful owners in the case. Notwithstanding frequent usage of the words connivance and the collusion, these have not been elaborated with graphic details to prove the charges against the present importers/appellants. Role of the present importers legally commenced not only after filing of the GD but payments of duties and taxes as well. Any infringement, violation of law accrued, if any, shall he considered on the basis of GD alone and the importers/appellants may accordingly be held accountable. Their role is clearly distinct, different and merits to be delinked from the previous developments and persons mentioned in the case. In the absence of solid documentary and convincing evidence the charge of connivance and collusion against Messrs Khalil Enterprises remains unproved. The case needed objective, balanced, impartial and fair approach. The ONO stipulates about misdeclaration of certain goods found in excess quantity or not declared in the GD. Import of banned goods has also been reported in few cases. GD is thus considered as the proper legal document to ascertain the extent and nature of declaration. Appellants have not furnished any convincing evidence to refute this charge of the department. The list of the offending goods, misdeclared on the GD has been provided on the face of the ONO. Total value of all the imported goods has been worked out as Rs.5,889 million involving duty and taxes to the tune of Rs.2.633 million. The amount of the offending goods has however, been shown as Rs.9.803 million having impact of Rs.0.348 million as duty and taxes, showing implications of the violation to the extent of 13.0% of the over all value and also in terms of duties and taxes. The appellants have however, assailed valuation thresholds terming them to be unfair, exorbitant and without evidential support and in violation of the dictates of section 25 of the Customs Act, 1969. But they have not provided any evidence to properly address and resolve the valuation issue. The order for confiscation of the non-offending or correctly declared goods on the GD involving no real violation and misdeclaration is too harsh, unjustifiable and unlawful. This is just the case of partial misdeclaration and merit to be considered accordingly in terms of the customs law. In view of the foregoing, the confiscation of offending goods shown in the contravention list only of the ONO besides the banned goods is accordingly upheld. The scale or percentage of fine shall however, be calculated as per S.R.O. 487(1)/2007 dated 9-6-2007 read with section 181 of the Customs Act, 1969 against the excess and undeclared goods on the G.D. The confiscation of non-offending goods is however, declared to be illegal, unlawful and unjustified. Penalty is reduced to fifty per cent. The impugned order is amended to this extent only and the appeal is disposed of. Considering the identical facts, circumstances and evidence and the provisions of law this order shall also mutatis mutandis be applicable in the following cases/appeals. Sr.No. Appeal No. ONO No.& Date Party name 1 Cus/885/2008-MCC I-HC-678419-170608 3042/21-7-2008 Messrs Muhammad Jamil Memon

2. Cus/883/2008-MCC I-HC-673709-110608 3043/21-7-2008. Messrs Muhammad Jamil Memon

3. Cus/880/2008-MCC I.HC-673718-110608 3046/22-7-2008 Messrs Nazli Asif

4. The appellant has now challenged the vires of the order-in- original passed by the learned Collector (Appeals), Karachi, by way of this appeal.

5. Mr. Ghulam Yasin, Appraising Officer and Mr. Shahnawaz, Examining Officer, appeared on behalf of the appellant whereas the respondent was represented by Rana Zahid Hussain Khan, Advocate of Messrs G.A. Jahangir and Associated, Karachi.

6. The above named representatives of the appellant contended that the respondent had actually imported "Wooden Strips", zero-rated item, with different title vide VIR No.KIC-3600-19052008. On arrival of the goods at the Port an information was received about the gross mis declaration and attempt of evasion of duty and taxes, in pursuance of which said consignment was examined as a result of which miscellaneous items were found instead of Wooden strips. Still the matter was under examination when the initial importer whose name was appearing in the VIR/Carrier's Declaration in connivance with shipping agent made online amendments in the name of consignee and particulars of the consignment by using their users IDs. Thereby the respondent in connivance with initial importer and shipping agent attempted to deprive the Government of its legitimate revenue and had committed violation of various sections of law. The appellant further contended that the order -in-original was very firm and sound and the Collector (Appeals) has passed order against the facts and law. The amendments were made in the VIR/carriers' declaration against the spirit of Rule 406 of Customs Rules, 2001 and section 45 of the Act. The payment of duty and taxes in terms of clause (b) of section 179(1) of the Act, under the self-assessment scheme, does not absolve an importer from the charge of an attempt to defraud the Government through a foul play as evident from the facts of the case. The departmental representatives vehemently prayed for quashment of the order-in-appeal on the basis of facts and grounds submitted in shape of memo of appeal. And they stood very firm behind the order-in-original passed against the respondent.

7. Rana Zahid Hussain Khan Advocate of Messrs G.A. Jahangir and Associates, Karachi, appeared on behalf of the respondent and defended the order-in-appeal. The learned counsel inter alia contended that the respondent is a bona fide and genuine importer from the beginning who had booked his consignment through UAE based cargo agent namely, Messrs Al-Kayaheen Air Cargo and Clearing LLC, UAE, who had issued bill of lading in his name with correct particulars. It was not his (Respondent's) mistake to mention wrong name and description in the VIR and the carrier's declaration but it was cargo agent's imprudent action, therefore, in order to rectify the mistake the shipping agent, on the advice of cargo agent had made online amendments accordingly in terms of Rule 401 of Customs Rules, 2001 read with section 45 of the Ac:, which empowers the carrier or his agent, as an entitlement, to amend authorized data fields in the VIR by using their IDs online such that for all incoming and outgoing vessels. The rule 401 allows all such amendments at the rate of Rs.50 per data field. The learned counsel further argued that the allegation that amendment was made in pursuance of knowledge regarding the examination of the goods is altogether incorrect and false as the respondent importer had no information at all about the so-called examination, if any, which was allegedly being carried out by the appellant after arrival of the vessel because the PaCCS system is totally confidential and paperless and the importers are neither allowed to visit the Port area nor they are intimated about the examination of the consignments. The respondent importer as per his convenience and arrangement of funds submitted Goods Declaration online on 11-6-2008 without showing any haste in terms of Rule 433 of the Customs Rules, 2001, embodied in S.R.O. 704(I)/2007, dated 14-7-2007, which stipulates that every declaration in relation to each consignment of imported goods shall be filed with PaCCS Online by the importer or his agent which shall be deemed to have been submitted to Customs only where duty and taxes leviable thereon, if any, have been paid or discharged as self-assessed by the person declaring it. The respondent has fully complied with the provisions of the PaCCS Rules before submission of Goods Declaration as he has paid leviable duty and taxes on the consignment faithfully and honestly. The G.D. so submitted was duly accepted by the appellant Collectorate and as per laid down procedure and law Customs Reference Number I-HC-673709-110608 was duly allotted to the G.D. by the Appellant Collectorate which is evident even from the show-cause notice and the impugned order-in- original on record. The learned counsel further contended that not only the G.D. was accepted but it was further processed under section 80 of the Act, by the appropriate officer of Customs. However, a show-cause notice was issued on 29-6-2008 after more or less fifteen days of the filing of G.D. on the basis of so-called examination which was perhaps conducted on or about 18-5-2008. Learned counsel further added that in this case even excess quantity was also found than declared in the G.D. Had the respondent been in possession of any knowledge about the said examination he would have not made any misdeclaration of quantity, etc. etc. Hopelessly the whole case of the department revolves around only and solely the amendments which were not made by the respondents but such amendments were made by the shipping agent due to his bona fide mistakes. The learned counsel further deliberated that even the aforesaid amendments so made by the shipping agent were neither cancelled nor rejected by the adjudicating officer if these were against the law, but on the contrary these were regularized by accepting the respondent as a genuine and lawful importer. The learned counsel went on to argue that although the respondent had not made any misdeclaration of description in the G.D. but the adjudicating officer illegally and unlawfully confiscated the entire consignment on the basis of description. "Wooden Stips" mentioned in the VIR and the carrier's declaration prior to amendments. However, he gave an option to redeem the same to the respondent who had never declared Wooden Strips as description in his G.D. submitted in terms of section 79 of the Act read with Rule 433, as referred to above. The learned counsel emphasized that misdeclaration of any particulars of the consignment cannot be ascertained on the basis of VIR or carrier's declaration which are not even Customs documents. The declaration of an importer for the purpose of duty and taxes starts from the filing of the G.D. terms of section 79 of the Act read with Rule 433 of PaCCS Rules, which is titled as "Declaration and Assessment for Home Consumption or Warehousing". The learned counsel further stated that the VIR or the carrier's declaration cannot be used for assessment of taxes in terms of section 80 or 81 of the Act, neither any duty and taxes can be deposited or assessed on the basis of VIR or the carrier's declaration. Similarly the goods are always cleared for home consumption or for warehousing in terms of section 83 of the Act against a G.D. and not against the VIR or the carriers' declaration, which stipulates that when the owner of any goods entered for home consumption and assessed under section 80 or 81 has paid the import duty and other charges the appropriate officer after being satisfied makes an order for the clearance of the same. A careful perusal of sections 79,80,81 and 83 of the Act amply proves that declaration of the particulars of a consignment can be made only through submission of G.D. in terms of section 79 of the Act read with PaCCS Rules, and on receipt of G.D. under section 79 an officer of Customs starts checking particulars of the consignment in terms of section 80 of the Act, and anything found contrary to the declaration can be charged under section 32 ibid. The counsel for the respondent also pointed out that the section 79 of the Act is even liberal inasmuch as it provides that if the owner of any goods before filing a Goods Declaration makes a request to appropriate officer of Customs that he is not to make a correct and complete declaration of the goods for want of full information the officer may then allow the owner of the goods to examine his consignment and thereafter submit entry of such goods by filing a G.D. thereby before taking any action whatsoever an opportunity is to be given to an importer to show his intention either to file a G.D. or request for examination of his goods prior to filing of G.D. The learned counsel further submitted that if the department had any information about the consignment they should have not taken untimely action and should have allowed the law to be followed and had waited till filing of the G.D. by the respondent importer or any other request as provided under the proviso to section 79 of the Act.

8. The learned counsel also pleaded that the respondent has not submitted any false documents, declaration or statement as prescribed in subsection (1) of section 32 of the Act, similarly the respondent has not attempted to evade any amount of customs duty and other taxes to invoke the provisions of subsection (2) of section 32 of the Act. He further agitated that section 32-A of the Act, had been applied by the department maliciously to enhance the gravity of their false and forged case. Section 32-A was inserted in the Act, through Finance Act, 2005 to deal with special nature of cases which are quite distinct and different from the nature of cases which fall under section

32. Section 32-A can only be invoked where the documents submitted by an importer are found false, forged, mutilated, altered and the importers are non-existent at their given addresses or any order-in-original or signatures of the Customs officers have been tampered or forged. Whereas in this case the department has miserably failed even to raise a single ingredient of section 32-A of the Act which proves that section 32-A was also invoked illegally and mala fidely. He further submitted that this is the first case of sheer discrimination and harassment in the history of Customs where despite making correct declaration of the particulars and payment of full duty and taxes, involving no discrepancy at all, an extremely harsh and illegal action has been taken by the Collectorate by issuing show-cause notice and penalizing the respondent importer by applying aforesaid, sections of the Act entirely contrary to physical evidence to the effect that the respondent had made correct and true declarations in the G.D. submitted online almost two weeks prior to issuance of the show-cause notice and more or less three weeks after the so-called examination and amendments duly accepted and allowed by the appellant Collectorate. Therefore, all actions starting from examination to passing of order-in- original are patently illegal, unlawful, unauthorized and without any legal effect.

9. Finally the learned counsel also raised another vital point that from the memo of appeal and line of arguments of departmental representatives, it transpires that the appellant's case is basically against the first importer whose name was initially appearing in the VIR or in the carrier's declaration and the shipping agent who had made online amendments, however, none of both parties have been cited as respondent, which is not only against the principles of natural justice but also indicates that the appellant had no grievance against them and their actions were lawful. Filing appeal against the respondent only before this august forum is clearly mala fide in view of the fact that the impugned order-in-appeal is legally sound and redemption fine/penalty has been maintained by the reamed Collector (Appeals) where excess quantity was found. The learned counsel defending the impugned order submitted that the Collector (Appeals) has passed a very exhaustive order discussing all law points involved in this matter, and has given a very thoughtful and judicious decision. The learned counsel emphatically prayed or rejection and dismissal of the appeal which has neither any substance nor merits.

10. Rival submissions heard. Case record examined. In my view this case can be bifurcated into two different stages, the first stage materializing from the point when the vessel arrived at the Port, VIR and carriers' declarations were filed by the shipping agent and thereafter certain amendments were made online in the VIR and carriers' declaration by the shipping agent on the advice of cargo agent of UAE. The second stage starts from filing and submission of goods Declaration by the respondent importer payment of taxes under self-assessment proviso of section 79, acceptance of G.D. by allotting Customs Reference Number (CRN) by the appellant, issuance of show-cause notice and order-in-original. Before discussing and drawing any conclusions, it is necessary to mention here that Pakistan Customs Computerized System (PaCCS) has become operational with the addition of Chapter XVI-A in the Pakistan Customs Act, 1969, and issuance of subsequent Rules (hereinafter referred to as "PaCCS Rules") notified vide S.R.O. 704(1)/2007 dated 14-7-2007 under section 155A of the Act. Sub-Chapter III of the PaCCs Rules prescribed procedure of imports through PaCCS and it comprises of Rules 432 to

442. Whereas Sub-Chapter-II of S.R.O. 450(1)/2001 dated 18-6-2001 (Customs Rules, 2001), notified earlier, deals with the arrival and departure of vessels including amendments and it comprises of Rules 392 to

419. After a careful perusal of PaCCs Rules it transpires that Rules 433, 434, 435, 437, 438 and 442 are more relevant in this matter which deals with the filing of imports declaration, amendments to import declaration, examination of imported goods, requirement of documents, assessment by Customs authorities and release of imported goods. Similarly, Rules 400, 401 and 402 of Customs Rules, 2001, attract relevance in this matter which deal with filing vessel information report (VIR) amendments to VIR and filing of cargo declaration (C.D). Therefore, in order to elaborate the purpose, meaning and contents of these Rules, the relevant PaCCS Rules and Customs Rules are reproduced hereunder: Customs Rules, 2001. "

400. Filing of vessel intimation report (VIR) and confirmation thereof

(1) The carrier or his agent shall, using his IDs and logging onto PaCCS, furnish VIR as per Appendix-I and, on receipt whereof, PaCCS shall issue a VIR number as a proof of its receipt including future reference which shall be required for filing of declaration of goods in respect of imports and exports. (2) The carrier or his agent shall, as per Appendix-II, confirm the VIR twenty-four hours prior to the ETA of the vessel which otherwise may be filed fifteen days prior to the ETA.

401. Amendments to vessel intimation report (VIR).

(1) The carrier or his agent shall be entitled to amend authorized data fields in the VIR by using their IDs online such that for all incoming and outgoing vessels, amendments shall be allowed at the gate of fifty rupees per data filed till such time the ETA of the vessel or issuance of port clearance, as the case may be, is made. (2) In case of any amendment made under sub-rule (1), the carrier or his agent shall be billed online, who shall clear all his outstanding dues on the first and fifteenth of each month, or the next working day in case of Gazette holiday, by depositing the amount due in the National Bank of Pakistan, in the relevant head of account of the Collector concerned failing which the user ID (s) of the carrier or his agent shall be blocked till clearance of the outstanding dues.

402. Filing of cargo declaration (manifest).

(1) Cargo information including declarations as per Appendix-III shall be filed online free of charge eighteen hours prior to the ETA or at any time after confirmation of VIR has been received by PaCCS, however, the NVOCCs shall file the incoming Cargo Declaration (IGM) against the VIR number allocated and to the extent of bill of lading relating thereto as declared in the VIR by the carrier or his agent; provided that in cases where the port of loading for the index in Dubai, Jebel Ali Khor-Fakkan, Salalah, Fujairah, Bandar Abbas, Mumbai, Nhava Sheva, Mundra, Kandla and Mina Qaboos, cargo information may be filed without charges twelve hours prior to the ETA. PaCCS Rules "

433. Filing of imports declaration.

Every declaration in relation to each consignment of imported goods shall be filed with PaCCS online by the importer or his agent which shall be deemed to have been submitted to customs only where duties and taxes leviable thereon, if any, have been paid or discharged as self-assessed by the person declaring it.

434. Amendments to imports declaration.

No declaration made under rule 433 shall be amended after the customs has started checking the declaration: Provided that such declaration may be cancelled where- (i) the goods have not arrived at the declared terminal on which PaCCS is operational; or (ii) clearance of goods or class of goods has explicitly been excluded from the purview of PaCCS.

435. Examination of imported goods.

The Terminal Operator shall make arrangements for the examination of imported goods so declared under rule 433 which includes their weighing, sampling, inspecting and scanning, and shall render such other services related to the examination thereof in accordance with the requirements of these rules.

437. Requirement of documents.

Where any documents are required for clearance of goods in support of the declaration filed under rule 433, the customs shall, on line, specify the documents so required from the importer or his agent who shall, as the case may be, produce such documents.

438. Assessment by Customs authorities.

Where any declaration has been filed under rule 433 or additional documents have been submitted under Rule 437, the customs shall satisfy itself as to their correctness including its value, classification, claim of exception, payment of duties and taxes, and may re-assess the goods during or after clearance.

442. Release of imported goods.

Customs release message will be electronically to the importer, his agent and the Terminal Operator. The goods will be released by the Terminal Operator subject to fulfilling of any condition specified by Customs in electronic message to the Terminal Operator. The Terminal Operator shall submit all collected documents requisitioned through electronic message to Customs at the end of the day."

11. In addition to above Rules i.e. PaCCS Rules and Customs Rules, sections 79, 80, 81 and 83 of Customs Act, 1969 are also very essential to discuss here in order to demonstrate the scheme of the Customs Act, 1969, to deal with the clearance of goods by their owners by filing Goods Declarations. Therefore, these four sections of the Act, are also reproduced hereunder:-- "

79. Declaration and assessment for home consumption or warehousing.

[(1) The owner of any imported goods shall make entry of such goods for home consumption or warehousing or for any other approved purposes, within fifteen days of the arrival of the goods, by,

(a) filing a true declaration of goods, giving therein complete and correct particulars of such goods, duly supported by commercial invoice, bill of lading or airway bill, packing list or any other document required for clearance of such goods in such form and manner as the Board may prescribe; and (b) assessing and paying his liability of duty, taxes and other charges thereon, in case of a registered user of the Customs Computerized System: Provided that if, before filing a goods declaration, the owner makes a request to an officer of customs not below the rank of an, Assistant Collector that he is unable, for want of full information, to make a correct and complete declaration of the goods, then such officer, subject to such conditions as he may deem fit, may permit the owner to examine the goods and thereafter make entry of such goods by filing a goods declaration after having assessed and paid his liabilities of duties, taxes and other charges. Provided further that no goods declaration shall be filed prior to ten days of the expected time of arrival of the vessel]. (2) If an officer, not below the rank of Additional Collector of Customs, is satisfied that the rate of customs duty is not adversely affected and that there was no intention to defraud, he may, in exceptional circumstances and for reasons to be recorded in writing, permit, substitution of a goods declaration for home consumption for a goods declaration for warehousing or vice versa. (3) An officer of Customs, not below the rank of Assistant Collector of Customs, may in case of goods requiring immediate release allow release thereof prior to presentation of a goods declaration subject to such conditions and restrictions as may be prescribed by the Board.

80. Checking of goods declaration by the Customs.

(1) On the receipt of goods declaration under section 79, an officer of Customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration, assessment, and in case of the Customs Computerized System, payment of duty, taxes and other charges thereon. (2) An officer of Customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents, as and when and in the manner deemed appropriate, during or after release of the goods by Customs; (3) If during the checking of goods declaration, it is found that any statement in such declaration or document or any information so furnished is not correct in respect of any matter relating to the assessment, the goods shall, without prejudice to any other action which may be taken under this Act, be reassessed to duty. (4) In case of the Customs Computerized System, goods may be (sic) only on the basis of computerized selectivity criteria. (5) The Collector may, however, either condone the examination or defer the examination of imported goods or class of goods and cause it to be performed at a designated place as he deems fit and proper either on the request of the importer or otherwise.]

81. Provisional determination of liability.

[(1) Where it is not possible for an officer of Customs during the checking of the goods declaration to satisfy himself of the correctness of the assessment of the goods made under section 79, for reasons that the goods require chemical or other test or a further inquiry, an officer, not below the rank of Assistant Collector of Customs, may order that the duty, taxes and other charges payable on such goods, be determined provisionally: Provided that the importer, save in the case of goods entered for warehousing, pays such additional amount on the basis of provisional assessment or furnishes bank guarantee [or pay order] or a post-dated cheque of a scheduled bank along with an indemnity bond for the payment thereof as the said officer deems sufficient to meet the likely differential between the final determination of duty over the amount determined provisionally: Provided further that there shall be no provisional assessment under this section if no differential amount of duty and tax is paid or secured against bank guarantee or post-dated cheque. (2) Where any goods are allowed to be cleared or delivered on the basis of such provisional determination, the amount of duty, taxes and charges correctly payable on those goods shall be determined within six months of the date of provisional determination: Provided that the Collector of Customs or, as the case may be, Director of Valuation, may in circumstances of exceptional nature and other recording such circumstances, extend the period for final determination which shall in no case exceed ninety days]. (3) On completion of final determination, the amount already paid or guaranteed shall be adjusted against the amount payable on the basis of final determination, and the difference between the two amounts shall be paid forthwith to or by the importer, as the case may be. (4) If the final determination is not made with the period specified in subsection (2), the provisional determination shall, in the absence of any new evidence, be deemed to be the final determination. Explanation.

Provisional assessment means the amount of duties and taxes paid or secured against bank guarantee or post-dated cheque.

83. Clearance for home consumption.

(1) When the owner of any goods entered for home-consumption and assessed under section [****] 80, [****]or 81 has paid the import duty and other charges, if any, in respect of the same the appropriate officer if he is satisfied that the import of the goods is not prohibited or in breach of any restrictions or condition applying to the import of such goods, may make an order for the clearance of the same: Provided that, at customs-stations where the Customs Computerized System is operational the system may clear the goods through system generated clearance documents. (2) Where the owner fails to pay import duty and other charges within [ten] days from the date on which the same has been assessed under sections 80,80A or 81, he shall be liable to pay surcharge at the rate of fourteen per cent per annum on import duty and other charges payable on such goods."

12. After a careful perusal of the Customs Rules, 2001, dealing with the arrival and departure of conveyance, filing of cargo declaration and amendments to VIRs (Rules 400-402) read with last amendment introduced in section 45 of the Act, it is my considered opinion that the shipping agents are allowed to amend authorized data field in the VIR by using their IDs online for all incoming and outgoing vessels at the rate of fifty rupees per data field. The carrier's agents are also allowed to clear their outstanding dues on the first and fifteenth of each month by depositing the same in the National Bank of Pakistan in relevant head of account. The words used in Rule 401(1) that "the carrier or his agent shall be entitled to amend authorized data fields in the VIR by using their IDs online" show that online amendments made by the carrier or this agent shall be allowed without any prior permission against the prescribed fee. It appears that Rule 401 is borne out of an amendment introduced through Finance Act, 2003 in subsection (2) of section 45 of the Act, which prescribes that "or by making an amendment electronically". In this case disputed amendments (basic bone of contention) were made online by the carrier's agent on the request of the UAE cargo booking agent against prescribed fee which were not objected to by the Collectorate at any stage, as a result of which the name of anew importer with new description (miscellaneous items) appeared in the Customs data field. Till making of these amendments, previous importer had not filed any G.D. in terms of section 79(1) of the Act read with Rule 433 of PaCCS Rules, by declaring the description as Wooden Strips. The respondents had filed his G.D. after nearly a month of such amendments without showing any haste which was also accepted by the Collectorate without any objection and Customs Reference Number (CRN) was also allotted to the G.D. The respondent's declarations made in the G.D. were scrutinized by the assessing officer in terms of section 80 of the Act, and release message was also communicated electronically by the appropriate officer. However, the consignment was put on hold by the Collectorate and a show-cause notice was electronically served upon the respondent, initial importer and carrier's agent after a period of more than one month of the imported examination and amendments thereby completely ignoring the fact that the respondent has tiled G.D. in terms of section 79(1) of the Act, making true and accurate declaration of the particulars of goods without concealing actual goods and nowhere declaring the goods as "Wooden Strips". Surprisingly the Appellant's case till today revolves around the amendments and particulars initially declared by the shipping agent in the VIR and carrier's declaration. The appellant is arbitrarily ignoring his own action, the developments and changes which had precipitated after the arrival of the vessel and online amendments made in the VIR/carrier's declaration by the carrier's agent. It is evident that neither the initial nor the respondent importer had declared the goods as Wooden Strips before the Customs. The G.D. was tiled after online amendments which was accepted, processed and cleared as well. The respondent prior to filing of the G.D. had also paid duties and other allied taxes in terms of clause (b) of subsection (1) of section 79 of the Act. Thus all the requirements envisaged under the aforesaid statutes and the Rules were duly fulfilled in all respects. Therefore, charging the respondent for misdeclaration of description on the basis of initial information contained in the VIR or carrier's declaration is neither understandable nor warranted by law, thus, without any legal effect.

13. After a bare perusal of enabling sections of the Act, and PaCCS Rules, it emerges that declaration of an importer, before the Customs, for clearance of his goods begins with the submission of Goods Declaration in terms of Rule 433 of PaCCS Rules read with section 79 of the Act, which stipulates that G.D. shall be deemed to have been submitted to Customs only when duty and taxes leviable thereon, if any, have been paid in terms of clan: (b) of subsection (1) of section 79 of the Act. Similarly, when Rules 434,435,437,438 and 492 of PaCCS Rules are examined combinedly in conjunction with sections 80, 81 and 83 of the Act, it follows that evasion of taxes by making misdeclaration of particulars is only possible through submission of incorrect G.D as the examination, the assessment, checking of G.D. and release of goods by the Customs Officer is only possible when a G.D. under section 79 of the Act read with Rule 433 of PaCCS Rules is submitted by the importer, otherwise, neither declaration of the importer can be checked or viewed nor goods can be assessed, examined and released by the Customs after satisfying themselves about the declarations and payment of leviable taxes. From a plain reading of the relevant provisions of customs law it transpires that before adjudging the bona fide or male fide intentions of an importer, mechanism devised in the aforesaid sections of Law and Rules is to be kept in mind as a whole. Before invoking provisions of sections 32 or 32A of the Act, as the case may be, the Adjudicating Officer must satisfy himself that the case squarely falls within the ambit of section 32 or 32-A of the Act. The importer should be allowed to follow the provisions of these Rules and law before taking any penal action. However, it is a matter of great concern that the Appellant totally ignoring the whole scheme of the Act and Rules proceeded to examine the goods without first waiting the declaration of the importer in undue haste; particularly when the goods were in their safe custody and there was no danger of their clandestine removal. It is also observed that provisions of section 32A of the Act have also been invoked against the respondent on the basis of VIR/carrier's declaration, without meeting condition laid down in the said provisions of law, which does not exist in the data field of the PaCCS. On the contrary the respondent's declaration of the imported goods as miscellaneous goods in the customs documents viz. Bill of Lading, Commercial Invoice and Goods Declaration has been totally ignored by the appellant which has not resulted into any loss of revenue to invoke the provisions of section 32 of the Act. The Honourable High Court of Sind' in case of Messrs Al-Hamd Edible Oil (Pvt.) Ltd. vs. Collector of Customs reported vide 2003 PTD 552, has held that:-- "A bare reading of the section clearly indicates that it-relates to a situation where a person makes any statement or files any documents which is false in any material particular by reason of which any duty or charge is not levied or is short levied or is refunded. In such event, the Customs Authority is empowered to issue, to the person concerned a notice to show cause why he should not pay the loss of revenue suffered by the Department and after giving him a hearing, besides any other action under law, order payment of the same, if a case is made out. The entire provision revolves around the central point of loss of revenue suffered by the Customs Department on account of the conduct of any person. Mr. Iqbal has not urged that the Department has suffered any loss on account of the conduct of the appellants. The question of applicability of section 32 in the present circumstances apparently does not arise.

14. In view of above discussion, I have no hesitation to hold that the subject appeal carries no weight. It has basically been crafted on the edifice of Vessel Information Report (VIR) and carriers' declaration (C.D) which were duly amended as per existing provisions of relevant law. The G.D. was filed/submitted by the respondent in terms of section 79(1) of the Act read with Rule 433 of PaCCS Rules, declaring therein true particulars of the goods without concealing actual goods, not only this, the amount of duty and other taxes were also paid in terms of clause (b) of subsection (1) of section 79 of the Act. Excess quantities were subjected to fine and penalty which have been maintained by the learned Collector (Appeals) and only that portion of the fine has been remitted which was imposed on the goods duly declared in the G.D. The upshot of the matter is that this appeal has no substance. The order-in- appeal is quite exhaustive having no legal flaw or infirmity to invoke this forum's indulgence. The appeal is therefore rejected having no merits and stands disposed of in the above terms. C.M.A./21/Tax (Trib.) Appeal rejected.