2000 PLP 1092 (SCMR)

SAIDUZZAMAN SIDDIQUI, C.J.

The petitioners in the above mentioned 15 petitions imported Toyota vans. On arrival at the port, the Customs authorities classified them under heading No.8703-9020 or 8704.2110. Accordingly, the customs duty was demanded at the rate of 125 per cent. along with regulatory duty of 100 per cent. under SRO 838 (1)/98 dated. 23-7-1998. The petitioners on the contrary contended that the vehicles imported by them fall under the head 874-2110 on which customs duty at the rate of 60 per cent. is payable. The petitioners being aggrieved with the assessment of the duty on their vehicles as aforesaid preferred appeals before the Collector (Appeals), Central Excise and Sales Tax, Lahore under section 194 of the Customs Act, 1969 (hereinafter to be referred as the 'Act'). The Collector (Appeals) remanded the cases to the Deputy Collector Customs to ascertain the seating capacity of the imported vehicles from the authorised dealers of the vehicles' manufacturers. The petitioners who were dissatisfied with the order of Collector (Appeals) filed appeals before the Appellate Tribunal under section 194-A of the- Act. The learned Tribunal dismissed the appeals on 5-6-1999. Against the order of the Appellate Tribunal, the petitioners filed appeals under section 196 of the Act before Lahore High Court which have been dismissed through a consolidated order dated 16-6-1999 against which the petitioners are now seeking leave to appeal.

2. We have heard the learned counsel for the petitioners as well as learned counsel for the respondents. The learned counsel for the petitioners contended that the learned Tribunal as well as the learned Judges of the Division Bench of High Court while disposing of the appeals under sections 194-A and 196 respectively, though upheld the order of Collector (Appeals) remanding the cases to the Deputy Collector of Customs for ascertaining the seating capacity of the imported vehicles but at the same time they also made observations on merits of the cases which almost decided the controversy which was directed to be gone into by the Deputy Collector of Customs.

3. Mr. A Karim Malik, the learned counsel for the department, on the other hand, contended that as the petitioners were themselves responsible for challenging the order of remand, they cannot now turn round and complain that the decision rendered by the Appellate Tribunal as well as High Court has made the order of remand ineffective. It is contended by the learned counsel for the department that both the Appellate Tribunal a.., well as High Court have in categorical terms held that the vehicles imported by the petitioners fell under heading 8703.9020.

4. After hearing the learned counsel for the petitioners and the learned counsel for the department, we are of the view that the learned Tribunal having upheld the order of Collector (Appeals) ought not have made observations on merits of the case which have prejudged the issues which were remanded by the Collector (Appeals) to Deputy Collector of Customs for determination. Similarly, the learned Judges of the Division Bench were also not justified for recording categorical conclusions with regard to the classification of vehicles imported by the petitioners as this finding has almost foreclosed the question which was remanded by the Collector (Appeals) to the Deputy Collector of Customs for determination in light of the letter of Secretary, Board of Revenue to the Collector of Customs dated 10-2-1999. We, accordingly, convert these petitions into appeals, allow them, set aside the order of learned Division Bench of the High Court as well as that of the Appellate Tribunal and remand the cases to the Deputy Collector of Customs for deciding the cases in accordance with remand order of the Collector (Appeals) dated 27-2-1999. There will, however, be no order as to costs. Q.M.H./M.A.K./A-17/S Appeals allowed.