FTO recommends Customs to decide issues after proper hearing, as per law

KARACHI: The Federal Tax Ombudsman (FTO) has recommended the Federal Board of Revenue (FBR) to direct the Collector of Customs, MCC Appraisement (East) to provide opportunity of hearing to the complainant, M/s Bashir Jalil and Brothers and decide the matter as per law.
According to details, the complaint was filed under Section 10(1) of the FTO Ordinance, 2000 against the Customs authorities at Karachi for maladministration in passing an allegedly unlawful assessment order dated 16.01.2010 and failing to accept the Complainant’s request to reopen the Order-in-Original (O-in-O) No.276/2013 dated 23.04.2013 under which a short levy of Rs.48,476 was adjudged against the Complainant.
The complaint was referred for comments to the Secretary, Revenue Division in terms of Section 10(4) of the Ordinance. In response, the FBR forwarded parawise comments, furnished by Collector of Customs, MCC Appraisement (East) vide letter No.MCC.FTO-72/2013 dated 25.11.2013. In the para-wise comments, the Collector had controverted the allegations of maladministration and raised jurisdiction – related issues as under:
(i) The complaint was not filed by an aggrieved person as required under Section 9(1) of the Ordinance;
(ii) no valid authorization for representing the Complainant was available with the advocate as the Vakalat Nama and the Affidavit contained cuttings; and
(iii) the complaint involved determination of value in respect of which legal remedy of appeal was available in the Customs Act, 1969 (hereinafter referred to as the Act).
The complaint was examined in the light of written and oral submissions of the parties and documents available on record. First of all, the jurisdiction related objection of the Department needs to be addressed. The law requires complaints to be made by aggrieved person as per Sections 9(1) and 10(1) of the Ordinance.
The DR’s contention that the complaint was not filed by an aggrieved person is not valid as the complaint is duly singed by the Complainant and the Advocate who had a Vakalat Nama and an Affidavit issued by the Complainant authorizing him to represent him. However, the Vakalat Nama in favour of the Advocate originally mentioned, the Complainant name as ‘Saniha Ashraf’ which was crossed and replaced by the name ‘Abdul Latif’. Similarly, the Affidavit originally carried the name of Mr. Hanif Chaudhry which was crossed and substituted by ‘Latif Chaudhry’ as a Director of the company.
The matter was referred to Mr. Sarfraz Bashir, President Sialkot Chamber of Commerce and Industry and son of late Chaudhry Bashir Ahmad after whose name the complainant company was founded. He telephonically confirmed that Affidavit and Vakalat Nama were genuinely signed by Mr. Abdul Latif, as Director of the Company. Mr. Younas, Advisor of the company also rang up to confirm the genuineness of the documents and Mr. Abdul Latif’s signatures. In view of the confirmation, the Deptt’s objection to cuttings / substitution of the names was not valid.
The DR’s contention that mention of the short-levied amount in a letter of the Complainant and copy of the computer print out attached with the complaint were evidence of receipt of show cause notice (SCN) by the Complainant, do not constitute conclusive evidence of receipt of the SCN.
Non-application of the Valuation Rulings at the time of appraisement is another failure of the appraisement staff.
The Ombudsman found that acts of omission and commission by the Customs staff constitute maladministration in terms of Section 2(3) of the Ordinance and recommended FBR to direct the Collector of Customs, MCC Appraisement (East) to reopen the case to examine the propriety and legality of the O-in-O No.276/2013 dated 23.04.2013 and to provide opportunity of hearing to the Complainant and decide the matter, as per law.

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