GHANDHARA NISSAN (PVT.) LTD. Versus FEDERATION OF PAKISTAN

ORDER

1. KHILJI ARIF HUSSAIN, J.‑‑‑ The petitioner imported various consignments of vehicles during April and May, 1987 and declared C & F prices at Japanese Yen 776,900 and were cleared by respondent No.2, on the declared value. Thereafter, on 19‑9‑1988, respondent No.2 issued show‑cause notice under subsection (2) of section 32 of the Customs Act, 1969, that due to false statement and misdeclaration of Import Trade Price (ITP) short recovery of duty has been made.

2. After hearing the parties respondent No. 2 vide order, dated 22‑11‑1988 ordered for the assessment of the vehicles on the basis of ITP price of Japanese Yen 8,50,000 (FOB) and freight Japanese yen 1,60,000.

3. Against the order, dated 22‑11‑1988, the petitioner filed appeal and order was set aside and the matter was remanded on 8‑10‑1992 to respondent No.2, who after remand vide his order, dated 4‑1‑1993 maintained the earlier order. The petitioner filed appeal against the said order which was dismissed by respondent No. 1, vide order, dated 6‑4‑1993 which has been impugned in this petition.

4. Mr. Aziz A. Shaikh, learned Advocate for the petitioner questioned the order on the ground that the price of vehicles in question have fluctuated varied from time to time depending upon the demand and supply of the same. Learned Advocate contended that without having any reliable basis respondents have increased the value of consignments while ignoring documentary evidence produced b y the petitioner in support of the prices declared by him. The respondent has fixed the prices at Japanese yen 8,50,000 solely on the ground that ITP required prior approval of respondent No.2, and since no prior approval has been taken and the consignments got cleared on the declared value the same should not be assessed on FOB price of Japanese yen 8,50,000 of identical vehicle in March, 1986.

5. On the other hand, Mr. Nadeem Azhar, D.A.‑G., and Mr. Raja Mohammad Iqbal, learned Advocates for the respondent attempted to justify the order of the contending that under Customs General Order 23 of 1986, the petitioner was required to get the price approval from the competent authority and since in the instant case such approval prior to the arrival of the consignment has not been obtained respondent had determined the value relying upon the prevailing price of the vehicles in March, 1986.

6. We are afraid that such contention of the learned Advocates for the respondents have handly any force. Section 25 of the Customs Act deal with the determination of value of imported goods. The declared value of the importer in respect of the consignment if not accepted as true then value of the identical or similar consignment from the port of origin from where the importer has imported the goods at the same time and for the same quantity and on the same commercial level can be made basis for assessment of duty. Respondent refused to accept the declared value merely because said value was not approved by them prior to arrival of the consignment whereas there is no such requirement under the Customs Act which required that the importer of the vehicles ought to have got prior approval of the ITP from the Collector of Customs before arrival of the consignment.

7. For the foregoing reasons we allow the petition only to the extent that the prior approval of ITP by the Collector of Customs is declared not to be a valid basis for assessment and accordingly impugned orders are set aside including the findings as to misdeclaration and the matter is remanded to the appropriate Adjudicating Officer, whose particulars will be provided by Mr. Raja M. Iqbal to assess the consignment lot the purpose of customs duty strictly in accordance with the requirements of sections 25 and 30 of the Customs Act.

8. These are the reasons of our short order, dated 10‑9‑2004.

9. S.A.K./G‑51/K Petition accepted.