2001 PLP 3064 (YLR)

2. The appellant imported Bleached Soft Wood Pulp and Bleached Hard Wood Pulp. It was assessed on the basis of ITP fixed by the Controller of Customs Valuation under section 25‑B of the Customs Act, 1969 at US $ 417 PMT and US $ 390 PMT respectively.

3. The petitioner through Constitutional Petitions Nos.16210 and 17394 of 1993 sought to challenge the aforesaid valuation on the ground of their being against the provision of section 25‑B of the Customs Act, 1969. These petitions were disposed of with a direction to the Department for interim release of goods on submitting sufficient security and also for the disposal of the representations filed by the importers. After remand the Adjudicating Officer finalized the assessment on the basis of ITP as notified by the Controller of Customs Valuation through his order, dated 12‑8‑1999.

4. On further appeal before the Tribunal it was inter alia contended that ITPs fixed under section 25 were not supported by any evidence and that their declared valuation on the other hand were duly supported by documentary evidence i.e. proforma and commercial invoice.

5. Learned Tribunal however, refused to interfere mainly for two reasons. Firstly that items in respect of which ITPs were fixed under section 25‑B were excluded from the purview of section 25 of the Customs Act which provides for valuation of goods according to the DBR. Secondly that ITPs under section 25‑B of the Customs Act are based on standard average price of the goods and are determined in consultation with concerned trade bodies. Also that since the prices are determined under a statutory authority, in view of these provisions, customs authorities were not obliged to provide back up evidence of the value so fixed. Therefore, finding the valuation fixed by the Controller of Customs Valuation under section 15‑B to be just the learned Tribunal proceeded to refuse to interfere.

6. Earlier the Tribunal considered and rejected the contentions of the appellants that the description and origin of some of the goods being different from these mentioned in the TIP notification, these were not applicable to them. It was observed that in the first instance no such objection was ever taken before the original authorities nor it was taken up as a ground before the High Court in the Constitutional jurisdiction. Also that even in memorandum of appeal filed before the Tribunal they never raised such an objection. Lastly, that the case of the appellant having been treated and decided under the provisions of sections 25 and 25‑B as these existed at the relevant time the appellant could not base his arguments on the amended provisions.

7. Moneem Qamar, a Director of the Company, in absence of his counsel has opted to argue the appeal personally at pre?admission stage. His first argument being that the Technical Member who had recorded the order was twice suspended while he was Collector Customs. Secondly that goods imported by them were not covered by ITP Notification, dated 28‑10‑1993. Thirdly that Customs Authorities lacked evidence to support the price fixed by them under section 25‑B of the Customs Act, 1969.

8. After hearing the learned counsel for the Revenue as well, we find that no question of law arises out of the order of the Tribunal. It hardly needs emphasis that under section 196 of the Customs Act, 1969 it is only a question of law arising out of the order of the Tribunal recorded under section 194‑B which can possibly be lifted to this Court as a moot point. The service record of one of the Members of the Tribunal as an executive officer is hardly of any significance for the purpose of disposal of this appeal. It reminds us of the famous legal phrase that if you have no defence, abuse the plaintiff. The objection that some of the goods were different from those mentioned in the ITP was rightly rejected on account of its having not been taken at the earliest or before the authorities who take note of the pure factual objection.

9. It will be noted that fixation of value for imports and exports under section 25‑B being in nature of assessment, some element of guess' will always remain there. The fixation of such value cannot be assailed on the mere ground that some degree, of variance exists in respect of goods imported from another destination.

10. The matter in issue has all along been revolving around the price notified I8 under section 25‑B and the claim of the importer for a lesser valuation on the basis of certain documents. It is thus predominantly question of fact which as said earlier, cannot be a moot point under section 196 of the Customs Act, 1969.

10. Dismissed in limine. H.B.T./F‑73/L ???????????????????????????????????????????????????????????????????????? Appeal dismissed.