Find a Lawyer

Customs Appeal No.58 of 2011, decided on 27th September, 2011.

---Ss. 32, 156(1)(14) & 194-A---Mis-declaration---Physical examination of goods revealed that weight of consignment was excess---Matter in issue was in the knowledge of the exporter and no bias had been noted against him---Generally, in case of summary adjudication the show-cause notice was given verbally---Difference between ascertained and declared weight being more than 05%, exporter had mis-declared the weight in terms of S.32 of the Customs Act, 1969, punishable under S.156(1)(14) of the Customs Act, 1969. Tariq Najib for Appellant. Ahmad Kamal D.R. and Habib-ur-Rehman for Respondent. Date of hearing: 10th August, 2011.

--This decision disposes of appeal filed against Order-in-Appeal No.413 of 2010 dated 31-12-2010 passed by the Collector of Customs (Appeals) Lahore. 2. Brief facts of the case are that the appellant filed shipping bill No.LEXP-SB-476 dated 11-8-2010 EGM No.5307 dated 10-8-2010 for export of dry fruits through Customs Clearing Agent Messrs New Globe Shipping Services, Lahore. On physical examination, it was revealed that the 7155 Kgs weight of the consignment was found to be excess. The value of thegoods was declared as Rs.829835. Since the difference between ascertained and declared weight was more than 05%, thus the exporter has mis-declared the weight in terms of section 32 of the Customs Act, 1969 punishable under section 156(I)(14) ibid. As a consequence of adjudication, the adjudicating officer decided the case against the appellant. Aggrieved by the said order the appellant filed the appeal before the learned Collector (Appeals) who also dismissed the same. Hence this appeal. It is contended by the learned counsel for the appellant that the impugned order is against the law and facts as it has been passed without application of mind. It is further contended that the declaration of lesser weight does not affect any revenue, prohibition or restriction as it is a case of export where no rebate or sales tax refund is claimed, therefore, section 32 of the Customs Act, 1969 is not applicable in the instant case. It is further submitted that a mandatory requirement for issuance of a Show Cause notice has not been complied with, therefore, the whole proceedings being against the law are liable to be set aside. It is further asserted that the declaration regarding less weight is neither intentional nor mala fide rather it is due to the fault of labour. On the other side the learned Departmental Representative rebutted the contentions raised by the learned counsel for the appellant and defended the impugned order. It is further stated that the weigh bridge measured the actual weight of the consignment as 17015 Kgs whereas the declared weight on the G.D was 9860 Kgs and variation observed was 7155 Kgs and there is 72.56% variation which amounts to mis-declaration. It is further pleaded that the appellant filed an application wherein summary adjudication was requested, therefore, no Show Cause notice was issued for adjudication as the summary adjudication requires the case to be decided urgently. It is further asserted that though no duty and taxes are involved regarding the impugned consignment, however, the appellant tried to deprive national exchequer from valuable foreign exchange by declaring the less weight of the consignment. Arguments have been heard. Record has been examined. Admittedly it a case of mis-declaration where the less weight has been declared and there is a variation of more-than 10% which falls within the ambit of mis-declaration. The application for summary adjudication filed by the appellant has also been examined carefully and the relevant portion of the same is re-produced as under:-

"At the time of custom clearance the actual weight has been found 17015 Kgs but declare weight is 9860 Kgs which is more 10% due to mistake/error of our labour staff.

Therefore, you are requested to please summary adjudicate of our case and release our consignment without any fine. " The contents of the application shows that the matter in issue was quite in the knowledge of the appellant and no bias has been created against the appellant for non issuance of Show Cause notice. Generally 1 in case of summary adjudication the Show Cause notice is given verbally. In the present case the actual facts of the case were already in the knowledge of the appellant, even otherwise the appellant has already complied with the order passed by the adjudicating office. Therefore, the contention of the appellant that the show-cause notice was not issued is devoid of any force as no bias was created against him. The Form" E issued by the bank has also been examined wherein it is revealed that it is not according to the actual weight. Keeping in view of the above, there is no force in the arguments advanced by the learned counsel for the appellant therefore, the appeal being devoid of any force is dismissed. Parties be informed through registered post A,D. or by UMS. File be consigned to the record after completion. HBT/149/Tax(Trib.) Appeal dismissed.