2002 PLP 616 (CLC)

MANSOOR AHMAD, J.‑‑‑ The present appeal under section 106 of Customs Act, 1969 arises out of a judgment, dated 25‑11‑1999 passed by the Customs, Central Excise and Sales Tax, Lahore Bench, Lahore, whereby the appeal filed by the present appellant was rejected.

2. Brief facts of the case are that on 14‑3‑1998, Inspector (Bond) Diyport, Lahore submitted a contravention report to the Collector of Customs intimating therein that private bonded warehouse of the appellant was visited by a team headed by Assistant Collector (Bonds) and on physical stock taking detected shortage of 35 coils/packages of steel sheets and 49 drums of PVC Compound. The value of bonded goods found short was worked out at .Rs.21,26,528 and evaded .Government duty was calculated to Rs.16.03,

884. The appellant was found guilty of unlawful and unauthorized removal of the consignment from their warehouse. Besides it also revealed that Licence NO.P.W.1/1/LHR/85 was not renewed after 6‑1‑1993 and the balance in stock in the bonded premised was kept beyond validity period of bonding. It was observed as contravention of the provision of Chapter XI of the Customs Act, 1969 read with sections 97, 98, 104 and

116. Accordingly a show‑cause notice, dated 23‑9‑1998 was issued to the appellant. After necessary hearing the Collector vide his order, dated 27‑3‑1999 held that the appellant was liable to pay an amount of Rs.12,57,450 for which he was directed to deposit forthwith. Further, a penalty of Rs.1,00,000 (Rupees one lac) was ‑also imposed for grossly misusing the licencing facility by removing goods without payment of leviable duty and tax. The appeal filed by the appellant before the Tribunal was rejected and the order of ‑the Collector was upheld. The appellant through the present appeal has raised the following law points which are said to have been arisen from the order of the Tribunal: ' (1) Whether learned Appellate Tribunal can direct that rate of duty whichever is higher on the date of filing into bond Bill of Entry or Ex‑bond Bill of Entry in respect of goods which were removed after filing Ex‑Bond Bill of Entry without payment of duties and taxes be taken shall be in consonation with the provisions of section 30 of the Customs Act, 1969? (2) Whether rate of duty either provisional on the day when Ex‑bond Bill of Entry was filed under section 104 of the Customs Act, 1969 shall be taken or rate of duty prevailing on the day when into‑Bond Bill of Entry was filed shall be taken in respect of goods which were removed from warehouse after filing Ex‑bond Bill of Entry or the date of actual removal of goods shall be the relevant date for determination of rate of duty? (3) Whether while passing impugned order by learned Appellate Tribunal judgment of Honourable Sindh High Court in case National Construction Company (Pvt.) Ltd. v. Government of Pakistan and others PLD 1989 Kar. 174 in which it was nowhere held by their Lordships that the rate of duty applicable at the time of into‑bond Bill of Entry was filed to be taken has not been wrongly interpreted. (4) Whether learned Appellate Tribunal has not misread the judgment of Honourable Sindh High Court, Karachi referred above while deciding the present case and whether it is not the result of misreading and non‑reading and misinterpretation of the judgment of superior Court. (5) Whether judgment of Honourable Sindh High Court referred above was not in favour of appellant as their Lordships were gracious enough to hold that the rate of duty shall be taken the rate prevailing on the date when Bill of Entry for clearance of consignment was filed and prayer for taking date of filing of into‑Bond Bill of Entry was refused.

3. We have heard the learned counsel for the parties. All the questions raised by the appellant are inter‑connected and inter‑dependent. The main thrust of the argument of the learned counsel is based on a judgment of Sindh High Court in case of National Construction Company (Pvt.) Ltd. v. Government of Pakistan and others PLD 1989 Kar.

174. The learned counsel for the appellant argued that in determining the rate of duty the date of the Ex‑bond Bill of Entry in respect of goods of the appellant was required to be taken but the Collector has taken the rate which according to him were prevalent on the date of in‑Bond Bill of Entry. Added to arguments learned counsel relying on the provision of section 30 of the Customs Act, 1969 submitted that for the purpose of determining a duty either a case would be that of section 79 or one falling under section

104. According to him the combined reading of sections 30 and 104 clearly shows that the rate chargeable in respect of the bonded goods were the rate prevailing at the date of filing of Bill of Entry for ex -bonding. In this case the date was to be taken as when the Bill of Entry for ex‑bonding the goods was filed. and it could not be the date of actual removal of the goods because the Collector himself admitted that date of actual removal of goods was not determinable.

4. Section 30 of the Customs Act, 1969 contains the provisions relating to the charging of custom duty on imported consignment. In cases where the goods are cleared for home consumption under section 79, that rate of duty chargeable is the one in force on the date on which a Bill of Entry is presented for release of the goods. In other cases where the clearance of the goods is not sought immediately but they are in bonded in a licensed warehouse the rate applicable would be in force on the day on which a Bill of Entry for clearance of such goods is presented. Under section 104 the owner of warehouse seeks the clearance of such goods for home consumption by paying the duty assessed on such goods. In the present case the goods were in bonded in the private warehouse of the appellant for which a licence was obtained by the appellant. The goods were removed from the private warehouse by the appellant without making the payment of any dues. It appears that an Ex -Bond Bill of Entry was filed by the appellant. The Collector held that this Ex‑Bond Bill of Entry was filed by the appellant as a pre‑planned scheme to consume the goods for actual/proper payments of duties and taxes. Admittedly the appellant removed the goods from his private warehouse without payment of the duties. It was rightly concluded by the Collector that it was the appellant who knew the definite date of the actual removal of goods which he never communicated. The essence of the provision contained under section 30 is that the goods chargeable to custom duty would be released on payment of custom duties. The rate prevalent or the rates when the goods are released for home consumption by filing Bill of Entry or the rate prevalent when Bill of Entry for ex‑bonding goods is presented. The appellant neither presented the Ex‑Bond Bill of Entry nor communicated the actual date of removal of the goods. Therefore, date of detection of removal was rightly taken as the date of ex‑bonding and in such situation out of two rates one prevalent on the day of in‑bonding, and on the day of ex‑bonding, could be taken into comparison and whichever is higher was to be applied. As the rate on the day of in‑bonding is higher, therefore, it was correctly applied in the case of the appellant. The judgment in case of National Construction Company (Pvt.)'Ltd. v. Government of Pakistan and others PTCL 1990 CL 217 lends support to our view. In the light of our finding hereinbefore, we do not find any substance in the appeal which is accordingly dismissed. S.A.K./S‑317/L Appeal dismissed.