1989 PLP 4434 (MLD)

AJMAL MIAN, C. J.--The above petition is directed against the orders ;sated 17-4-1982, 18-10-1983 and 17-11-1985 passed by respondent No.3, respondent No.2 and respondent No.l respectively. The relevant facts leading to the filing of the above petition are that the petitioner imported Immitation Glass Stone from M/s. Swarovski, International Trading Corporation having its head office in Liechtenstein, Austria. It appears that upon the arrival of the consignment, the petitioner filed bill of entries. The consignment was assessed by the Customs Authorities and was cleared. However, after the expiry of two years, the petitioner was served with a show-cause notice by respondent No.3, alleging therein that the petitioner had grossly under invoiced the imported consignment and thereby caused a loss of Rs.5,04,055.80 in the custom duty and Rs.2,68,829 in the sales tax. The above show-cause notice was resisted by the petitioner. The matter was referred by respondent No.3 to the Pakistan Embassy in Austria, which after getting the matter confirmed from the local Chamber of Commerce in Austria, replied to respondent No.3 that the statements of the petitioner and the supplier were verified by the Chamber. However, respondent No.3 by his impugned order dated 17-4-1982 held that the petitioner was guilty of misdeclaration and imposed a personal penalty of Rs.2,00,000 under clause 14 of section 156(1) of the Customs Act and also directed the petitioner to pay duty and taxes amounting to Rs.7,72,884.80 within one month. Against the above order the petitioner filed an appeal which was dismissed by respondent No.2 by the impugned order dated 18-10-1983, against which the petitioner filed a revision which was dismissed by respondent No. 1 by the impugned order dated 17-11-1985. The petitioner being aggrieved by the above three orders has filed the present petition. In support of the above petition, Mr. Mohammad Akmal Wasim, learned counsel for the petitioner has contended as follows:- (1) That respondent No.3 had no basis to reinitiate the case after the expiry of two years from the date of clearance particularly in view of the fact that the Pakistan Embassy in Austria had confirmed the statements of the petitioner and the supplier after getting the matter referred to the Chamber of Commerce; (2) That the conclusions arrived at by respondent No.3 and concurred with by the other two respondents are based on surmises and conjectures; and (3) In any case respondent No.l had disposed of the revision of the petitioner without hearing the petitioner though the petitioner had given a justifiable reason, namely, the illness for which he had requested that the case should be heard at Karachi. On the other hand Mr. S. Iftekhar Hassan, learned counsel for the respondents has submitted that there was sufficient material before respondent No.3 to conclude that there was misdeclaration on the part of the petitioner. He has further submitted that Pakistan Embassy in fact did not carry out any investigation as to the correctness of facts but referred the matter to the relevant Chamber of Commerce in Austria and, therefore, disregarding of the Embassy's confirmation by the respondent is of no consequence. He has also submitted that the petitioner was sent notice of the hearing of revision of respondent No.l but he himself had not appeared. Adverting to the above first submission of the learned counsel for the parties, it appears that respondent No.3 has relied upon the following facts to conclude that there was mis-declaration on the part of the petitioner. (1) That normally the Immitation Glass Stones are invoiced in the quantity of 10 gross whereas in the instant case the quantity for stone was 100 gross. (2) That the price list issued by the supplier indicates that the prices were much more than what were declared. (3) That the petitioner and the supplier were in collusion and, therefore, no reliance can be placed on their statements or on the fact that the Pakistan Embassy had supported their version.

3. It may be pertinent to point out that the case was re-opened by respondent No.3 after about two years of the release of the goods. In spite of the expiry of the above period the petitioner was able to bring on record sufficient material to indicate that the prices which were declared by him were the correct prices. There seems to be no justifiable reason to disbelieve the verification made by a foreign Chamber of Commerce upon a reference received by it from Pakistan Embassy. The conclusions arrived at by respondent No.3 in fact are based on surmises and conjectures and are not founded on substantive piece of evidence. The supplier had given plausible explanation for the fact that the goods were supplied in the quantity of 100 gross instead of 10 gross namely, that the Immitation Glass Stones in question was of inferior quality and were not listed in the normal price list. The above statement has been dis-believed merely for the reason that the other type of Immitation Glass Stone were imported in the quantity of 10 gross. Similarly the conclusion of the official respondent that the Pakistani Embassy had not properly verified the facts seems to be unfounded. A The Pakistan Embassy adopted normal course of making the reference to the local Chamber of Commerce. They were to verify the correctness of the supplier's version. The Pakistan Embassy could not have done anything else as they have no intelligence agency available with them. We may also point out that the conclusion that one digit of Zero has been added against the figure "10" by the supplier is also based on no evidence and is founded on surmises. The impugned orders, therefore, cannot be sustained. We, therefore, allow the petition and declare them as being of no lawful authority but there will be no order as to costs. MYH/M-840/K Petition allowed.