KARACHI: A two-member bench of The Sindh High Court (SHC) set aside impugned order of the Tribunal and allowed all special customs reference applications filed by Collector of Customs through Mr. Iqbal M. Khurram Advocate against M/S Junaid Traders and others over disputed of assessment of imported glass beads.
On 2 March 2021, court released a detail judgment and observes in its order that “learned Counsel for the Applicant has read out the impugned order of the Tribunal and submits that the same is based on misreading of facts inasmuch as the assessment made by the department was never under section 81 of the Customs Act, 1969 (“Act”) and in support he has referred to the Assessment Order No. 01/2015 dated 18.05.2015.
According to him the comments filed by the Applicant before the Tribunal have been reproduced in the impugned order which does not reflects that any admission was made to the extent that the assessment in question was made under section 81 of the Act. He has prayed for answering the questions in favor of the Applicant. 3. We have heard the learned Counsel for the Applicant and perused the record. Notice was ordered and bailiff’s report reflects that respondent is no more available at the given address; hence no further notice is required.
It reflects that the respondent imported goods in question (glass beads) which were assessed pursuant to a Valuation Ruling No. 239 dated 31.10.2010 and paid duty and taxes whereafter the goods were released.
Though in the impugned order of the Tribunal it has been recorded that the respondent then filed Revision Application before the Director General Valuation under section 25-D of the Act, which was dismissed, against which an Appeal (K-1166/2010) was preferred before the Customs Appellate Tribunal which was decided vide order dated 11.09.2013 in favour of the respondent.
However, on perusal of the order of the Tribunal as above, it appears that it was not passed in respect of the Respondent before us; but in fact, the Appellant was Haji Janded Khan Shenwari.
It seems that based on that order which was incidentally in relation to the same Valuation Ruling, the respondent approached the department for refund of the duty and taxes paid pursuant to the assessment made on the basis of impugned Valuation Ruling.
The department was not satisfied as to the fulfillment as required under section 19-A of the Act; as apparently the incidence of duty and taxes had been passed on to the buyer; hence a show cause notice was issued and as per record available, no satisfactory response was furnished and the orders for rejection of refund were passed. The respondent approached the Collector of Customs (Appeals) and the said appeals were dismissed vide a common order dated 3.8.2015
The said order of the Collector of Customs Appeal was then impugned before the Tribunal and the Appeal of the respondent has been allowed by the Tribunal on the ground that the assessments were made under section 81 of the Act and s.19A of the Act would not apply; hence the respondent was entitled for refund and or return of security. When the order of the learned Tribunal is perused, it reflects that insofar as the comments of the respondent before the Tribunal (Applicant before us) are concerned, it nowhere states or admits that assessments in question were made under section 81 of the Ac
In the circumstances, we are of view that the order passed by the learned Appellate Tribunal is based on misreading of facts and without considering the crucial aspect that the respondent had never challenged the Valuation Ruling as required in law, whereas, even on merits had failed to discharge the burden as contemplated under s.19A of the Act.
Accordingly, question Nos. 1 & 2 are SCRA Nos. 387 to 413 & 122 of 2016 5 answered in negative; in favour of Applicant and against the respondent; whereas answer to question No.3 is not required. Consequently, the impugned order of the Tribunal is set aside and all these Special Customs Reference Applications are hereby allowed.