2006 PLP (Trib (PTD)

This appeal challenges the validity of the impugned orders, dated 7-12-2005 passed by the Collector of Customs, Sales Tax and Federal Excise Appeals, Karachi-I and order, dated 26-8-2005 passed by the Assistant Collector of Customs Appraisement, Karachi.

2. Brief facts of the case are that the appellant imported a consignment of textile cut pieces in stock lot quality from Korea vide IGM No.1162 of 2005 under customs tariff heading 5514.2100 and filed a home consumption goods declaration for clearance of the same.

3. On physical examination, it was alleged by the respondent that the imported goods are in cut pieces of various sizes and as such the said goods are of stock lot or of job lot quality and attract the provisions of sections 16 and 32 read with penal clauses given under subsections (9) and (14) of section 156(1) of the Customs Act, 1969 and subsection 3 of section 5 of the Imports and Exports (Control) Act, 1950 read with S.R.O. 574(I)/2005, dated 6-6-2005.

4. Accordingly, a show-cause notice was issued to the appellant asking him that as to why action under the aforementioned provisions of law be not initiated.

5. The appellant denied the said charges, however, the respondent did not agree with his point of view and passed the impugned orders. This appeal challenges the validity of the said order.

6. The learned counsel appearing on behalf of' the appellant contended that: (i) the goods are neither factory rejects nor collection of odd and ends having slight modification, differences in sizes, specification etc. Moreover, the same have not kept in stock for long age due to change in taste market condition; (ii) the goods are not of job lot goods because these are neither odd, ends, or inferior in quality or something as defined within para No.1(v) of the Customs General Order No.12 of 2002. It is unlawful for the respondent to give its own misconceived opinion against the defined parameters and binding to be followed by the respondent under sections 4 and 223 of the Customs Act, 1969, without lawful evidence; (iii) it is unlawful to consider the goods both job lot/stock lot in a single breath. The goods can either be taken as textile cut pieces, or job lot or stock lot. But it cannot be treated all multi-purpose quality for any type of allegation under non-bona fide designs for confiscation of the goods; (iv) the goods are neither job lot nor stock lot as defined under the Customs Act, 1969. The allegation is vague and unwarranted in the eyes of law, and no allegation being void. It is unlawful to approbate and reprobate on a single quality, to allege at one time that "it is a job lot", at the same moment that "no it is not ,a job lot but a stock lot" at the next moment that "no it is not only job lot or stock lot but job lot and stock lot both"; (v) when the goods were got booked and put in the process of import, the status of goods as per Import Policy in vogue (as alleged quality was) not importable rather banned: Also at the time the goods were got assessed the import status of the goods was same alike previous Import Policy. But meanwhile the penal S.R.O. 374(I)/2002, dated 15-6-2002 was replaced by a fresh S.R.O. 374(1)/2005, dated 6-6-2005 which was published in the Gazette of Pakistan later as effective from the date 1-7-2005; (vi) the goods were booked in the month of May, 2005 which were put in the process of import as on 24-5-2005 vide bill of lading, and delivered at Karachi Port as on 15-6-2005 vide IGM No.1162 of 2005. Goods declaration was filed, which was required to be completed' as per law given under the S.R.O. 374(I)/2002 was in the field during the crucial period the import took place.

7. The appellant accordingly pleads for the vacation of the impugned orders.

8. The learned departmental representative defended the impugned orders for the reasons given therein.

9. Rival parties have been heard and case record examined. The following facts stand established from the pleadings of the parties:-- (a) there was no misdeclaration on the part of the appellant: (b) goods in their present form are importable and there is no restriction placed by the Import Policy; (c) the examination report does not give reasons for treating the goods as job lot or stock lot. No objective criteria was applied by the examining staff; (d) the benefits being already availed for the import of goods by the appellant was available to him and the provisions of S.R.O. 374(I)/2002 were not applicable retrospectively. The impugned orders are discriminatory.

10. In the light of the above facts; the impugned orders are not sustainable. The same are accordingly set aside. C.M.A./25/Tax (Trib.) Order accordingly.