2019 PLP 575 (PTD)

This order shall also decide Reference Application No.244992 of 2018 which was filed seeking rectification of order dated 03.04.2018, impugned through instant reference application, which rectification application was dismissed vide order dated 28.09.2018. The applicant has impugned judgment dated 03.04.2018 passed by Customs Appellate Tribunal, Lahore ("Appellate Tribunal") whereby the appeal filed by the applicant was dismissed upholding the order-in-original dated 03.10.2016.

2. The precise issue involved is the failure of applicant to satisfy department that the items imported, under DTRE regime, were consumed for manufacturing purposes only. It is pertinent to mention that respondent claimed to be an indirect exporter in terms of DTRE regime, who was obliged to consume the imported raw material for manufacturing purposes only.

3. Various questions of law were proposed, statedly arising out of the order of Appellate Tribunal, for our opinion, however, the applicant emphasized following question of law:-- i) Whether the learned Appellate Tribunal has erred in law by passing an order based on misapplication of law, as the exports made by the applicant under the DTRE scheme have never been objected. No provision under the Act or the Rules made thereunder including Rules 303 and 304 of the Customs Rules, 2001, debar the DTRE user from procuring duty and taxes paid goods for consumption under DTRE for Exports. Rather section 18(2) of the Act mandates that "No duty shall be levied on the goods exported from Pakistan?"

4. At the outset, learned counsel for the applicant was confronted to show that question proposed involves legal issue/matter and arises out of the order of Appellate Tribunal. Learned counsel submits that allegation on the basis of which Appellate Tribunal has rejected the appeal does not constitute part of the show-cause notice. Per learned counsel, the stocks were available and due verification was not carried out by the department.

5. We have examined the show-cause notice at page 45 of this reference application, wherein precisely the allegation of illegal sale of different imported papers acquired under DTRE scheme was alleged and therein, reference was made to physical verification/stock taking at factory premises on 07.05.2016. It is also apparent from the examination of impugned judgment that the shortfall of requisite material was the cause for passing the order. With regard to question of identification of stocks/missing items, this Court while exercising jurisdiction under Section 196 of the Customs Act, 1969 cannot dwell into fact finding exercise by examining findings of fact recorded by the Appellate Tribunal. The shortfall, non-availability of requisite stock/item and issues relating to site inspection/verifications are purely factual in nature. In the circumstances, we find that no question of law is arising out of the order of Appellate Tribunal, which order otherwise does not suffer from any legal infirmity.

6. In view of the above, this reference application is without any merit and the same is therefore, dismissed.

7. Office shall send a copy of this judgment under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Customs Act, 1969. SA/R-1/L Reference dismissed.