2010 PTD 275

1. KHALID NASEEM, MEMBER (TECHNICAL).--- This judgment disposes of appeal filed against Order-in-Appeal No.20 of 2008, dated 12-11-2008 passed by the Collector Customs, Sales Tax and Federal Excise (Appeals), Hyderabad.

2. Brief facts of the case as reported are that Messrs Punjab Arms and Ammunition Co., Lahore imported a consignment of arms" Taurus Brand Pistols, Model 145, 111, 915 (80 pieces) Brazil origin, having declared invoice price C&F @ US$ 40 per piece and sought clearance thereof vide G.D. No.32282 dated 30-12-2005. The consignment, at the original stage of assessment was subjected to First Appraisement System (i.e. Examination prior to assessment) and quality,' quantity (Brand and Art No.) and origin were found as declared in the import documents. The assessment was made at C&F @ US$ 100 by ignoring the direct import evidence of C&F US$ 229.16 per piece imported/cleared vide G.D. No.28788 dated 10-12-2005 Messrs Bilal Associates, Customs Clearing Agent, Lahore Cantt has filed the goods declaration.

3. The Collector of Customs Lahore constituted an audit team for post clearance audit of arms and ammunition imported/cleared during the period of 1-1-2005 to 20-4-2007 through Customs Air Freight Unit, Lahore. Scrutiny of records revealed that "Taurus Brand Pistol, Model, 145, 111, 915 (80 pieces) Brazil origin were imported and were assessed at unit price C&F US$ 100 per piece instead of declared invoice price at unit price C&F US$ 40 per piece. It is pertinent to add here that the original assessment was carried out at C&F US$ 100.00 per piece without considering the evidence relating to import of identical/similar brand arms at C&F @ US$229.16 per piece vide G.D. No.28788 dated 10-12-2005. Consequently, there existed short recovery of total Rs.449934. Moreover, the goods under reference were imported/cleared in violation of the import Authorization read with Import Procedure Order issued by the Ministry of Commerce vide its letter dated 25-1-2005. The importer had violated the provisions of section(s)-1, 25, 32(1) read with section 32(3-A) of the Customs Act, 1969 (IV of 1969) read with section 3(1) of Import and, Export (Control) Act, 1950; punishable under sections 156(1), 9 and 14 of the Customs Act, 1969 read with section 3(3) of the Import and Export (Control) Act, 1950 further read with S.R.O. 574(I)/2005 dated 6-6-2005. The importer was therefore issued show-cause notice dated 30-7-2007 which culminated into passing of order in original No.24 of 2007, dated 4-1-2008. Being aggrieved of the said order the appellant filed appeal before the Collector Appeals Lahore who vide impugned order in appeal dated 12-11-2008 dismissed the appeal, hence the present appeal before the Tribunal praying to set aside the order in appeal on certain grounds.

4. The learned counsel for the respondent stated that his declared value was 40$ per piece and it was enhanced to 100$ per piece on the basis of evidence available in terms of section 25(5)(d) of the Customs Act, 1990. He further stated that the same goods were being cleared at 40$ and numerous G.Ds. can be presented on that account. Thereafter it was assessed at 100$ and still being done at 100$ but only in these five cases the value of 215$ has been applied which is unfair and not justified. The departmental representative when asked to confirm the above, he stated that the goods are still being cleared at 100$ under the orders of the Honourable High Court and 215$ had never been applied to any case except in these five cases.

2. 4(sic). I have gone through the record, written and oral submissions and find that/no doubt 37 pieces of Taurus Brand Pistols were cleared on 215$ but the same has never been applied on any one. The GD of higher value of 215$ was filed on 25-8-2005 but in the subsequent period too it has not been applied and constantly clearance has been allowed at US$ 100 as admitted by the departmental representative on the plea that the High Court had decided to allow release at 100$ therefore, I find a discriminatory treatment meted out to the respondent and in view of the majority clearances at US$100, I find no reason to interfere with the order in appeal which is upheld and the appeal of the department is rejected.

5. Since identical facts, circumstances and law points are involved, this judgment shall mutatis mutandis be applicable to the following appeals: --

3. Sr.No.

4. Appeal No.

5. Name of Appellant

6. Order-in- Original No.

7. Order-in- Appeal No.

8. 1.

9. 40/LB of 2009

10. Coll. Customs. Lahore v. Messrs Evanthi Industries, Islamabad

11. 28 of 2007

12. 20 of 2008

13. 2.

14. 37 of 2009

15. Coll. Custom Lahore v. Messrs Punjab Arms and Ammunition, Lahore

16. 22 of 2007

17. 20 of 2008

18. 3.

19. 38 of 2009

20. Coll. Custom Lahore v. Messrs Punjab Arms and Ammunition, Lahore

21. 23 of 2007

22. 20 of 2008

23. 4.

24. 36 of 2009

25. Coll. Custom Lahore v. Messrs Champion Automobiles, Lahore

26. 26 of 2008

27. 20 of 2008

28. C.M.A./159/Tax(Trib.) Appeal rejected.