SYED SARDAR HUSSAIN SHAH (CHAIRMAN/MEMBER JUDICIAL):---

This judgement disposes of Customs Appeal No. K- 694/2017, filed against the Order-in-Original No.238 of 2016-2017 dated 24.05.2017, Appeal No.K-2288/2016, filed against the Order-in-Appeal No. 1179/2016 dated 31.08.2016 and Appeal No. No.2289/2016 filed against the Order-in-Appeal No. 1180/2016 dated 31.08.2016 by Messrs Global Technologies, Plot No.550-J, Johar Town, Lahore (appellant herein).

2. Brief facts of the case as per contravention report C.No.43/KAPE/DC-VI/2016 dated 07.03.2016 are that Messrs Global Technologies (NTN No. 1426953), Lahore, imported "Concrete Batching Plant" correctly classifiable under PCT Heading 8474.3120, attracting import Duty @ 5%, by declaring the same as "Concrete Mixer Machine", and misdeclaring PCT Heading as 8474.3190, in order to avail the benefit of FT A, whereby the rate of Customs Duty is 0%. In the light of above referred observation, evaded amount of duty and taxes in following 53 CBS was worked out as Rs. 1525.169/-. Therefore, the detecting agency alleged that the importer, M/s. Global Technologies (NTN # 11269531 Lahore in active connivance with his clearing agent, namely, Messrs Al-Haider International, clearing Agent (CHAL-2330), Karachi evaded duty and taxes amounting to Rs. 15,175,169/-, in violation of sections 32(1), 32(2) and 79(1) of the Customs Act, 1969, read with Sections 3, 6 and 7 of the Sales Tax Act 1990. Section 148 of the Income Tax Ordinance, 2001, punishable under clauses (14) and (45) of Section 156(1) of the Customs Act, 1969, read with Sections 33 and 34 of the Sales Tax Act, 1990, further read with sections 148 and 182 of the Income Tax Ordinance, 2001.

3. Messrs Global Technologies (NTN # 1426953), J-550, Muhammad Ali Johar Town, Lahore along with their clearing agent, Messrs Al-Haider International, Clearing Agent (CHAL-2330), Room No.7 Mezzanine Floor, Sutly Plaza, Young Husband Road, Kharadar, Karachi, were called upon to show-cause under the provisions of Sections 32(1), 32(2) and 79(1) of the Customs Act, 1969, read with Sections 3, 6 and 7 of the Sales Tax Act, 1990 and Section 148 of the Income Tax Ordinance, 2001, as to why the evaded amount of duty and taxes to the tune of Rs. 15,175,169/- (Customs Duty amounting to Rs. 11,903,619/-, Sales Tax amounting to Rs.2,516,418/-and Income Tax amounting to Rs. 755,132/-) along with default surcharge under Section 34 of the Sales Tax Act, 1990, may not be recovered from them and why penal action under clauses (14) and (45) of Section 156(1) of the Customs Act, 1969 read with section 33 of the Sales Tax Act, 1990, further read with sections 148 and 182 of Income Tax Ordinance, 2001, may not be taken against them.

4. The Adjudicating Officer vide Customs Order-in-Original No.238 of 2016-2017 dated 24.05.2017 held as under:-

"I have gone through the record of the case and the arguments made by the detecting agency. It has been alleged correctly by the detecting agency that Messrs Global Technologies (NTN # 1426953), imported "Concrete Batching Plant" which was correctly classifiable under PCT Heading 8474.3120, with Customs Duty leviable @ 5%, However, the respondent mi- declared the same as "Concrete Mixer Machine", under PCT Heading 84743190, in order to avail the benefit of FTA, whereby the rate of Customs Duty is 0%. The respondents failed to offer any rebuttal whatsoever, verbally or in writing, to these charges. The evaded amount of duty and taxes in 53 GDs is worked out as Rs. 15,175,169/- (Customs Duty amounting to Rs. 11.903.619/-, Sales Tax amounting to Rs.2,516,418/and Income Tax amounting to Rs.755,132/-) Hence, the importer in active connivance with his clearing agent, violated Sections 32(1), 32(2) and 79(1) of the Customs Act, 1969, read with Sections 3, 6 85 7 of the Sales Tax Act, 1990, Section 148 of the Income Tax Ordinance, 2001 punishable under clauses (14) and (45) of Section 156 (1) of the Customs Act, 1969, read with Sections 33 and 34 of the Sales Tax Act, 1990, further read with Sections 148 and 182 of the Income Tax Ordinance, 2001 and SRO 499(I)/2009 dated 13-06-2009.

Several opportunities of hearing were provided to the respondents in order to rebut the charges levelled in the show- cause notice, but neither was any written reply submitted nor did anyone appear to defend the case. Non-pursuance of the case by the respondents proves shows that they do not have any valid arguments to present in their defense.

In the light of the foregoing arguments made by the detecting agency, the charges levelled in the show-cause notice stand established. Messrs Global Technologies (NTN # 1426953), J- 550, Muhammad Ali Johar Town, Lahore, are directed to pay the evaded amount of duty and taxes of Rs. 15,175,169/- (Customs Duty amounting to Rs. 11,903,619/-, Sales Tax amounting to Rs.2,516,418/- and Income Tax amounting to Rs. 755,132/-) into government treasury. A penalty of Rs. 1,000,000/- (Rupee One Million Only) is imposed on the respondent, Messrs Global Technologies (NTN # 1426953), Lahore in terms of clauses (14) and (45) of subsection (1) of Section 156 of the Customs Act, 1969. The Directorate / Collectorate shall proceed to recover the default surcharge (to be calculated at the time of payment as per Section 34 of the Sales Tax Act, 1990) strictly in accordance with law.

As far as the role of the clearing agent in the subject case is concerned, it is observed that under the Customs Act, 1969 he acts on behalf of the principal for all the purposes of the Act. He is required to make a true statement / presentation to the customs after analyzing all the aspects of the Goods Declaration and the documents delivered to him by his principal. Where misdeclaration or wrong description is proved, he has to be held responsible along' with the principal / importer. A penalty of Rs.200,000/- (Rupees Two Hundred Thousand Only) is also imposed on Messrs Al-Haider International, Clearing Agent (CHAL-2330), Room No.7 Mezzanine Floor, Sutly Plaza, Young Husband Road, Kharadar, Karachi Room No.4 Mezzanine Floor, Sutly Plaza, Young Husband Road, Kharadar, Karachi interms of clauses (14) and (45) of section 156(1) of the Customs Act, 1969."

5. Being aggrieved and dissatisfied with the Order-in-Original, the appellant filed the instant appeal before this Tribunal on the grounds incorporated in the memo, of appeal.

6. The respondent department has submitted cross objections in reply to the memo, of appeal, which are placed on record.

7. We have heard arguments of the learned counsel of the appellant as well as learned Departmental Representative beside examining the relevant record.

8. The main controversy involved in this appeal is whether the imported consignment is a Concrete Batching Machine falling in PCT heading 8474.3190 as claimed by the importer or a Concrete Batching Plant as being contended by the Respondent Department classifiable under PCT heading 8474.3120. The appellant also took stance that the Respondent Department has changed its stance as earlier, the same item was being classified and assessed by the Respondent Department as Concrete Batching Machine.

9. The Respondent Department has been wrongly treating Concrete Batching Machinery (PCT heading 8474.3190) as Concrete Batching Plant (PCT heading 8474.3120). The imported consignment is a Concrete Batching Machine classifiable under PCT heading 8474.3190 we allow these appeals, set aside the impugned Order-in-Original No.238 of 2016-2017 dated 24.05.2017, Order-in-Appeal No.1179/2016 dated 31.08.2016 and Order-in-Appeal No. 1180/2016 dated 31.08.2016 and direct the Respondent/Department to assess the consignment accordingly. These appeals stand disposed of.