Versus Malik Muhammad Arshad for Appellant.
ABDUS SALAM KHAWAR (CHAIRMAN).--- This appeal is directed against the Order-in-Original No.1 of 2003 dated 28-4-2003 passed by the respondent.
2. Brief facts leading to this appeal are that the appellant No.1 imported a consignment of six units of old and used mini Mazda Dumpers vide Bill of Entry No.129 dated 23-7-1999. The consignment was examined, assessed and cleared by the customs authority and a sum of Rs.12,10,893 was levied as the customs duty, sales tax, income tax, stamp duty and excise duty. Later on M/s. Pak Gulf Trading Company on 27-7-1999 moved an application for refund of duty/taxes amounting to Rs.805,719 on the ground that these imported items were duty free under Table III of section 18 of the Finance Act, 1999.
3. Simultaneously, the appellant moved an application before the Federal Tax Ombudsman but instantly the Assistant Collector Customs (Refund) sanctioned an amount of Rs.805,719 as the refund claim. The matter did not end here and the case was reopened on 4-3-2003 by the then Collector of Customs on the ground that the cheque for the aforesaid amount of refund was issued to Messrs Pak Gulf Trading Company whereas the original importer was Tariq Jamil. The claim of the appellant for the refund of amount of Rs. 386,059 was rejected by the Deputy Collector Customs, Dry Port, Sambrial vide Order No.54-Cus-Smb/Imp/Ref/02/Reg/3101 dated 5-11-2002 being barred by time. However, the case was reexamined under the direction of the Honourable Lahore High Court, Lahore by the C.B.R. and vide order No.C.No.10(9)/L&P/91 dated 26-3-2003. The case was remanded to the respondent.
4. The learned counsel appearing before the respondent pleaded that the attorney submitted by him on behalf of Tariq Jamil was genuine, duly signed and duly supported by Affidavit: The said Tariq Jamil was stated to be in Japan, and could be called, if needed. During the hearing proceedings a letter No.SMM/CUS/03 dated 18-4-2003 received from Messrs Sindh Engineering (Pvt.) Limited, Karachi was shown to the learned counsel appearing on behalf of the appellant and the question raised about the description of the vehicle and its nature could not be rebutted by the learned counsel satisfactorily. The respondent in view of the same observed that the vehicles got cleared under the garb of Dumber trucks were in fact truck classifiable under PCT Heading 8704.9090 chargeable to customs duty @ 60% besides other taxes and these were banned under Import Policy Order prevalent at the relevant time. It was held that the refund of customs duty for Rs.805,719 was not admissible and be recovered under the law. Simultaneously, refund of the sales tax amounting to Rs.386,059 was also held to be not admissible on the same ground.
5. The learned counsel appearing on behalf of the appellant has opposed this order on the following ground. Firstly, the show cause notice was not comprehensive. It only mentioned the ground that the appellant No.2 was an unauthorized person to receive the refund. Secondly, the respondent has travelled beyond the scope of the show cause notice referred above. It has not been specifically mentioned in the show cause notice that the Customs Duty was not chargeable on the type of trucks imported. Thirdly, the appellant No.2 was alleged to have received the refund voucher without any authorization but this assertion has neither been negated nor discussed by the respondent in the impugned order. It was alleged that the charge should be specified and its detail must be in the knowledge of the person as was held in C.As.Nos.K-43, K-44 and K-45 of 2007 passed by Karachi Bench-II, Karachi of this Tribunal.
6. The learned counsel for the appellant confronted the allegation levelled against the appellant that the trucks which were imported were not exempt from the customs duty.
7. Contrary to this, the learned D.R. appearing on behalf of the respondent maintained that in Para 6 of the show cause notice the legality of the refund order could be examined. However, he has admitted that the specific charge of unauthorized receipt of refund voucher has not been dealt in by the respondent.
8. We have heard the learned counsel for the appellant as well as the learned D.R. assisted by Mr. Muhammad Omer, Appraiser and perused the available record.
9. Primarily the appellant has challenged the vires of the impugned order on the ground that the question of authorization in favour of appellant No.2 on behalf of the appellant No.1 has not been discussed in detail, through the impugned order and secondly it has incorrectly been held by the respondent that the trucks imported were not exempt from the customs duty as could not be classified as dumpers.
10. As regards to the first contention, we feel that this aspect has been fully discussed by the respondent. The show cause notice specifically charged the appellant that he was not authorized to collect or claim the refund on behalf of the appellant No.1 who was the real importer. This issue has not been decided either way by the respondent which gives to the cracks of the matter.
11. As regards to the second contention, we have been told that this matter has been adjudged through another show cause notice dated 30-6-2002 issued by the learned Additional Collector. The decision was made accordingly by the Additional Collector and vide this Tribunal's order dated 8-5-2003, the case has been remanded to the respondent for adjudication afresh on that point.
12. In view of the circumstances narrated above, we are constrained to observe that the charge specifically levelled against the appellant about the un-authorized receipt of the refund claim has not been decided either way by the respondent and in the absence of that the impugned order is not sustainable under the law hence, is set aside. Accordingly, we allow the appeal and set aside the same. The case is remanded back to the respondent with the direction to decide the matter within the limits of the show cause notice issued on 10-9-2003.
H.B.T./136/Tax (Trib.) Order accordingly.