SHAKIL AHMED ABBASI, MEMBER JUDICIAL-III:--

This judgment shall dispose of Customs Appeal No. K-1275/2023 filed against Order-in-Appeal No. 361/2023 date 14.07.2023.

2. Brief facts of the case are that That the appellant imported “Ceat Brand Tyres” of various sizes. The appellant on the basis of the import documents filed GD which was assessed as per Valuation Ruling 1543, 1544 and 1545/2021 which was declared illegal by the Appellate Tribunal Karachi through multiple appeals bearing K-172/2022, K-109 to K-114, K-116 to K-120 of 2022 and K-125 of 2022. Therefore, the appellant challenged the illegal assessment before the Respondents No.3 who passed an order against the appellant upholding the assessment made by the respondent No.2 with the observation that the Appellate Tribunal Customs, Karachi passed an order in persona rather than in Rem, therefore, the valuation ruling was set aside for those companies/entities who challenged the illegality of the valuation ruling. Since the appellant did not challenge the order in revision before the tribunal at that stage and time the valuation ruling was in field for him. Thereafter the appellant challenged the vires of the Order-in-appeal before this Tribunal for a judicious decision and raised further grounds:-

1. That the Respondent has assessed the goods in terms of valuation rulings which have already been declared illegal, unlawful and against Section 25A of the Customs Act, 1969, resultantly the was set-aside by the Customs Appellate Tribunal in Custom Appeal No. K-172/2022, K-109 to K-114, K-116 to K-120 of 2022 and K-125/2022. The said order is still in the field and are binding in nature as orders in Rem.

2. That there is no room under the law to pass the assessment in a stereotype manner without giving any valid and lawful reason and evidence. That the impugned Assessment Note is also in utter violation of basic principal of natural justice Audi Alter am Partem, that nobody can condoned unheard.

3. That without any evidence against the exporter invoice assessment cannot be made except in terms of Section 25(1) of the Customs Act, 1969. It is settled law that before resorting of the sequential method Collectorate had to prove that the exporter invoice is fake and fabricated.

4. That assessment of goods is made in a cursorily and presumptive manner, no a specific single document has been asked for proper determination.

5. That the importer has produced all the available documents at the time of filing Goods Declaration.

6. That on a factual plane, this Collectorate has totally ignored the price actually paid/payable for the import of subject goods into Pakistan. As is apparent from the import documentation, the value of goods remains much lower than the value purportedly ‘determined’.

7. That burden to prove that the imported the goods are purchased at higher value is on the shoulders of the Respondent as per Articles 117 and 121 of the Qanun-e-Shahadat Order, 1984.

8. That the Respondent has not produced nor written a single Goods Declaration which has been relied by this Collectorate in assessing the subject goods.

9. Whereas, even otherwise it is also a settled proposition of law that where two or more transition values of identical goods were available in the data of import of 90 days maintained by PRAL under Rule 110 of Customs Rules, 2001, the lowest value had to be applied for completing the assessment of identical goods under dispute.

10. In the present case the goods imported under the firm contract evidence which has been produced at the time of Goods Declaration, the burden of proof has been discharged as required under Section 25(1) of the Act, no material evidence has been placed on record to counter the evidential date provided by the importer.

11. That in the case of Collector of Customs v. Faisal Enterprises (2019 PTD 1776), the Supreme Court has held that “When the goods without any difficulty could be assessed on the basis of the transaction value under subjection (1) of section 25 i.e the price actually paid or payable for the goods sold for export to Pakistan, then the question of invoking subsection (5) if section 25 did not arise at all”.

12. That on reported judgment 2022 PTD 381 (Trib.) it is held that without evidence against Declare Value no other method of assessment can be adopted, otherwise assessment will be void- ab-initio, liable to be set-a-side.

13. That it is well settled law that when a law required and act to be done in a particular manner it had to be done in that manner alone, not otherwise, Reliance is placed on 2004 SCMR 1947, 2005 SCMR 1388. In 2006 SCMR 129 titled as DG I I and others v. Al-Faiz Industries (Pvt.) Ltd., and others that;

“if the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted-each and every words appearing in as section is to be given effect and no other word is to be rendered as redundant or surplus- when the legislature required the doing of a thing in particular manner then it is to be done in that manner and all other manner or modes of doing or performing that things are barred if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict which the manner prescribed will be unlawful as per maxim Expression facit cessaretacutum

14. That the action of the Collectorate are also in violation of rights enshrined under Article 4, 10A, 18 and 37 of the Constitution of Pakistan, 1973.

15. That it is also a settled principle that any action which is based upon no evidence is not permitted by law, the mere assertion is no evidence (2006 PTD 2190), Whereas in terms of Article 24 of general clauses act the Respondent No. 3 is bound to give reasons before discarding the declared value, under section 79 of the Customs Act.

16. That the learned Division Bench of the High Court of Sindh in case of Collector of Custom v. Messrs Lake View Forest (2022 PTD 1955) has defined the assessment scheme of Custom Act that subject is governed in terms of Section 25 of the Customs Act and in case it could not be determined under Section 25, then the recourse is a available by applying Valuation Ruling if available in terms of section 25-A. Therefore directly application of VR by the Respondent No. 3 is uncalled for hence the impugned assessment is liable to set-a-side.

3. The counsel for the Appellant on the date of hearing argued the case strictly in accordance with the grounds hereinabove. No cross objections under Section 194A(4) of the Act were filed within the stipulated period of 30 days by the respondent No.1, nor even thereafter no parawise comments were filed. It appears that the respondent had no interest to defend this Appeal. Hence it is decided on the basis of available record.

4. Arguments heard and case record perused. In order to decide the instant case a Single question of law arises for my resolution which is:

(i) Whether in the facts and Circumstances of the case the respondent assessing officer was Justified in assessing the goods on valuation rulings issued under Section 2SA of the Act, 1969 keeping in view that the same had been set aside by this tribunal through an order which was followed by letter and spirit by the respondents themselves?

5. The Customs Act, 1969 has provided a certain mechanism for assessment of the goods which are imported into Pakistan. That mechanism is vastly elaborated in the form of Section 25. This provides certain methods which are to be strictly followed for assessment purposes. In the instant case there were certain valuation rulings in field against which Order in Revisions were passed against various importers. The importers thereafter challenged the same before this Tribunal who passed an order in favor of the Appellants declaring the Valuation Rulings as illegal and set-aside those. Once the valuations ruling were set-aside the respondent Collectorate accepted the order of the tribunal in letter and spirit and started to assess the goods on declared values of the importers. The present appellant was aggrieved by the discriminatory treatment given to him by the respondent Collectorate since he was denied of obtaining the benefit of the order of the tribunal on the fact that he was not a party in the case at appeal before the Tribunal stage. However, it will not be out of place to bear in mind that the present appellant did challenge the veracity of the valuation rulings at revision stage under section 25D of the Act, ibid before the DC Valuation Customs, Karachi. The learned Departmental representative during the course of hearing accepted the fact that the valuation rulings were indeed set aside by this Tribunal whereas it was also correct that the present appellant was not given the benefit of the order since he was not a party to the case before the tribunal at that stage and since he believed that the said order was an order in persona rather in rem. I, however, tend to disagree with the said stance put forth by the learned departmental representative. The Tribunal while setting aside the valuation ruling set forth a principle meaning thereby that the valuation rulings in question contained patent illegalities therefore were set aside in Rem and set a principle meaning thereby that once it was set aside and declared illegal the valuation ruling was to be deemed as “Not in field” for everyone importing those category of goods. I have carefully perused the concluding para of the order dated 21.03.2022 and 26.07.2022. In both the cases the Tribunal set aside the valuation rulings in general while setting aside the order in revisions to the extent of the appellants only. On my enquiry from the departmental representative that after the valuation ruling was set aside on which provision of Section 25 on the goods of other importers were assessed to which it was informed that the goods were assessed on the declared transactional values of other importers. This indeed tantamounts to violation of the fundamental rights of the present appellant since the action of discriminatory treatment by the Collectorate also infringes his fundamental rights of equal protection of law guaranteed under the Constitution of Pakistan, 1973.

6. In the light of above discussion and following the ratio decidendi set-forth by the judicial fora, I hold that the above mentioned Appeal filed against the impugned Order-in-Appeal merits consideration and is hereby allowed. The Respondents are directed to finalize’the assessment of the appellant on the same values on which other importers were discussed. Once the assessment is completed the Appellant shall approach the Nazir of the High court to get his amount released which is kept as surety in C.P. 7087/2022.

7. The Appeal stands disposed of in above terms with no order as to cost.