Customs Appeals Nos. K-530 and K-531 of 2001, decided on 29th May, 2003. Versus Customs Appeals Nos. K-530 and K-531 of 2001, decided on 29th May, 2003.
ORDER
ZAFAR IQBAL (MEMBER TECHNICAL ).---This order will dispose of customs appeal Nos. K-530 and K-531 of 2001, as both these appeals arise from identical facts and involve similar question of law.
2. Brief facts of the case are that the appellant Messrs Ghandhara Nissan Ltd., did import a consignment of parts in CKD condition in order to assemble Nissan Sunny (B-14) CD 20 diesel model cars subject to cash payment of 30% duty plus 10% regulatory duty under S.R.O. 502(I)/94, dated 9-6-1994.
3. The said goods arrived at Karachi port under IGM No. 1691 of 1996, dated 20-11-1996 and were placed into bond. An ex-bond entry was subsequently presented by the appellant on 28-2-1997. The assessment process was completed by the respondent on 5-3-1997 under S.R.O. 502(1)/94, dated 9-6-1994 for customs duty @ 30% ad valorem plus 10% regulatory duty in cash and rest of 120% was covered vide indemnity bond under section 30-B read with section 104 of the Customs Act, 1969. The duty and taxes were paid on 1-4-1997.
4. The appellant on 7-11-2000 received a show-cause notice wherein it was alleged that since concessionary rate of duty stood enhanced from 30% to 40% vide S.R.O. 225(I)/97, dated 28-3-1997, therefore, the appellant's goods released @ 30% plus 10% regulatory duty were not in order. It was further alleged by the respondent that since duty and taxes were paid after 7 days of the assessment made by the appropriate officer on 1-4-1997, hence Rs.1,213,418 being 10% of duty short paid was recoverable from them. In these circumstances, it was alleged that the appellant contravened the provisions of section 32(1) and (2) of the Customs Act, 1969.
5. The appellant had denied the charges levelled against them, but the adjudication officer did not agree with his point of view and passed the impugned order. Hence the present appeal.
6. The learned counsel for the appellant contended that:
(a) an ex parte order has been passed against him and as such he had been condemned unheard;
(b) the demand raised vide show-cause notice, dated 7-11-2000 is time barred;
(c) the ex-bond bill of entry presented on 28-2-1997 and assessment thereon completed on 5-3-1997 was never cancelled thereafter, hence the allegation against the appellant is ill founded.
7. The departmental representative did not deny the fact that an ex parte order was passed against the appellant and that completed bill of entry on 5-3-1997 was never cancelled or recalled by the respondent.
8. We have heard the rival parties and case record has also been examined. It is evident from the perusal of order-in-original that an ex parte order has been passed against the appellant and he was denied an adjournment on a flimsy ground.
9. By doing so the adjudication officer did violate the principles of natural justice and impropriety descended in the proceedings. It is now well settled principle of law since Farid Son's case: PLD 1961 SC 537, that executive authority should extent a fair opportunity to the defence in order to conform to the principles of natural justice.
10. It has been seen that both under the common law and under the statute and the Constitution, the requirements of a reasonable opportunity are:-
(i) that the person proceeded against should be clearly and specifically told the charges standing against him;
(ii) that he should be given full and adequate opportunity to explain and establish his innocence;
(iii) that he should be allowed to show cause against the punishment;
(iv) that there must not be any mala fide anywhere; and
(v) that whole thing must be honest and fair deal done with a sense of responsibility.
11. The opportunity in order to be a reasonable opportunity, must be a real opportunity, which would make it possible for a taxpayer to persuade the competent authority to come to a different conclusion, from the one at which he has tentatively arrived, and the Courts tests and judges the opportunity from this angle.
12. Furthermore, while examining the record, the adjudication officer has also failed to give a finding that whether or not the action of the department is well within the time stipulated by law. Failing to do so also brings impropriety to the proceedings conducted by the respondent.
13. Furthermore, he has also failed to notice whether or not ex-bond bill of entry completed on 5-3-1997 was recalled or cancelled by the department.
14. In the light of what has been stated above/it is evident that the proceedings conducted by the respondent suffer from procedural impropriety. Accordingly, we allow this appeal, set aside the impugned order and remand the case back to the adjudication officer with the direction that:
(a) a fair opportunity be extended to the appellant;
(b) it should be determined whether or not the demand is time barred;
(c) it should also be determined whether or not the ex-bond bill of entry on which assessment was completed on 5-3-1997 was valid or not on the day the duty was paid.
15. Thereafter, the concerned officer should decide the matter afresh.
C.M.A./107/Tax (Trib.) Order accordingly.