Law: Customs Act, 1969

Section: 32,32(1)(c),32A,32A(1)(a),32A(1)(c),79(1 )(b),80(1),156(1),196(5)

(a) Customs Act (IV of 1969)--Ss.32, 32A . 156(1)-Mis-declaration-Fiscal fraud-Imposition of penalty-Scope-Respondent imported a trailer and claimed assessment of goods under HS Code No. 7311.0030, which was disputed by the department, as according to them the trailer was correctly classifiable under HS Code 8716.3190 attracting customs duty at the rate of 15%-Show cause notice was issued and the matter was adjudicated, whereby, fine and penalty was imposed, which in appeal was set aside to the extent of such fine and penalty-Validity- Tribunal had held that since all import related documents including the Free Trade Agreement (FTA) Certificate were showing HS Code 7311.0030, whereas, the description of the goods was correctly mentioned by the respondent, therefore, present was not a case of any intentional mis-declaration and element of mens rea was missing- Appellate Tribunal had also accepted the plea of the respondent that if any mis-declaration could have been made it was the description, which could have been changed; however, admittedly correct description of goods was declared on the Goods Declaration-Tribunal’s findings were correct in law and it was not that in each and every case wherein upon scrutiny of the Goods Declaration if HS Code is changed attracted a higher rate of customs duty, that fine and penalty had to be imposed mandatorily, as it is always dependent upon facts and circumstances of the case as well-One had to see the intention in doing so as well as presence of element of mens rea-Reference application was dismissed. (b) Customs Act (IV of 1969)--Ss.32 32A-Mis-declaration-Fiscal fraud-Scope-Classification of goods is a question based on legal and factual determination and so also of interpretation of HS Code and the Customs tariff; hence, there could always be difference of opinion for interpreting the same, it is not that it always be a case of mens rea and imposition of fine and penalty if the claimed HS Code is not accepted by the Department. Collector of Customs v. Shaikh Shakeel Ahmed 2011 PTD 495 and Collector of Customs Karachi v. Power Electronic Pakistan (Pvt.) Limited Lahore 2011 PTD 2837 ref. ORDER: MUHAMMAD JUNAID GHAFFAR,…

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