P L D 1995 Supreme Court 49'1 (PLP)

SALEEM AKHTAR, J.

The petitioner seeks leave to appeal against the order of the learned Judges of the Division Bench of the High Court, whereby its Constitution Petition filed against the Customs authorities was dismissed in limine.

2. On 27-2-1990 the petitioner had imported 693 Electra Brand Refrigerators. On 6-3-1990 they were ex-bonded and the petitioner declared the value at US$ 232 per piece. Thereafter, on 22-3-1990 the petitioner filed Ex-Bond Bills of Entry and the Customs authorities were to assess the goods at the declared price, but the petitioner seems to have disagreed and on 14-2-1991 applied to the Collector of Customs that similar goods had been released at the price assessed at US $ 200 per piece. This plea was not accepted by the Customs authorities. On 22-3-1991 the petitioner filed fresh Bill of Entry declaring the value of US $ 200 per piece. The Customs authorities did not , accept it and therefore the petitioner filed Constitution Petition No.328/91 which was disposed of on 29-7-1991. The learned Judges noted that the Customs authorities had maintained that the valuation had been made strictly in accordance with the provisions of sections 30 and 104 of the Customs Act. So far allegation of discrimination is concerned, the Customs authorities denied it and stated that if there was any grievance in this regard, the same may be brought to the notice of the relevant authorities. On this statement the petition was not pressed and was dismissed as withdrawn. The dispute between the parties did not end there. On 16-3-1991 the Collector of Customs fixed I.T.P. and the value of the goods was assessed and fixed at US $ 298 per piece. It seems that by this I.T.P. the distinction on the basis of brand was done away with and the value was assessed only on the basis of their size. During 12-5-1991 and 25-5-1991 the petitioner had cleared goods. On 14-5-1991 I.T.P. dated 16-3-1991 was withdrawn with immediate effect. On the same day the Collector of Customs (Valuation) issued a memorandum fixing the value in US $ per litre with gross capacity Le outer dimension (width x depth x height). This document reads as follows:-- "The normal values of the Refrigerators have been investigated in the light of the date available on record of this department and after a series of meetings held with the manufacturers and the importers, the normal values of Refrigerators on the basis of .gross capacity i.e. outer dimension (width x depth x height) have been determined as under for the purpose of levy of Customs duty and taxes. It is therefore advised that the assessment of Refrigerators may be carried out on the basis of values determined below:-- "S.No. Description of Goods Value in US$ per litre of gross capacity i.e. outer dimension . (width x height x depth)

USA, Japan Korea, China & Western Eastern Europe, Europe origin Turkey & Far Eastern Countries origin

1. No Frost Refrigerators household type having gross capacity up to 250 litres 0.96 0.82 0.72

2. No Frost Refrigerators household' type having gross capacity from 251 to 500 litres 0.78 0.66 0.59

3. No Frost Refrigerators household type having gross capacity over 500 litres. 0.71 0.60 0.53 4 . .. . 5. .. ...... .. 6. . . .

3. The learned counsel contended that I.T.P. could be fixed under section 25-B of the Customs Act as was done in respect of Notification, dated 16th March, 1991 and the same has to be notified but after withdrawal of the notification, dated 16th March, 1991 by Notification, dated 14th May, 1991, no further Notification as required by law was issued. According to the learned counsel the advice dated 14-5-1991 fixing the value as quoted above, is not a notification and is merely an advice which is not binding and on that basis the value cannot be fixed. The learned counsel further contended that in the absence of any I.T.P. issued validly as required by law the Customs authorities should have resorted to section 25 of the Customs Act and fixed the value after furnishing material which they had obtained after investigation as alleged in the advice. No such material was shown in spite. of the fact that petitioner had complained of discrimination. The learned counsel has relied on Messrs Eastern Rice Syndicate v. Central Board of Revenue and others (PLD 1959 SC (Pak.)364), Messrs Latif Brothers v. Deputy .Collector, Customs, Lahore and others (1992 SCMR 1083) and Passco Hardware Co. v. The Government of Pakistan and others (PLD 1989 Karachi 621). Leave is granted. AA./M-62/S Leave granted.