P L D 1997 Lahore 36, (PLP)

The relevant facts are that M/s. Muzammal Brothers, petitioner imported two consignments of Rubber Scrap from U.K. and filed bill of entry for their clearance. The Customs Authorities after their physical examination reported the same to be serviceable. On the request of the petitioner (importer), the case was adjudicated summarily and the consignments were released against redemption fine in lieu of confiscation for violation of section 32 of the Customs Act, 1969 and section 3(1) of Imports and Exports (Control) Act, 1950. The petitioner filed an appeal before the Collector, Lahore which was dismissed on 17-5-1994. The revision was also dismissed by the Central Board of Revenue on 23-10-1994. The petitioner has challenged the above orders through this Constitutional petition.

2. It is contended on his behalf that 5000 Kgs. Nozzle Scrap had been wrongly assessed under P.C.T. Heading 7204.9000 instead it should have been assessed under PCT Heading 7404.0000. In the past, such goods were treated as Scrap and assessed under PCT Heading 7404.0000. According to the petitioner's counsel, Customs Authorities have mala fide and arbitrarily drawn a line of distinction between the petitioner's consignment and the consignment of other importers. It is prayed by the petitioner that the Nozzle Scrap charged under PCT Heading 7204.4900/7204.9000 be modified and altered to 7404.0000 and extra charges recovered from him be refunded.

3. According to the Customs Authorities, the assessment was correctly made on the basis of 100% physical examination of the goods and the case was adjudicated on the request of the petitioner/importer and the goods were released on payment of redemption fine in lieu of confiscation. 4.. It is an admitted position that the petitioner did not challenge the findings of the Customs Authorities made on the basis of the physical examination of the consignments but requested for summary adjudication of the case. His request was acceded to and the goods were released against the payment of redemption fine. After obtaining release of the goods, he challenged the order by filing appeal and the revision. The Collector (Appeals) while dismissing his appeal had rightly observed that since the goods in question had already gone out of charge, the petitioner's contention that they were unserviceable being Scrap could not be considered at that stage. Doctor Muhammad Yunus, I Additional Secretary to the Government of Pakistan', Ministry of Finance, dismissed the revision of the petitioner with the following observations:

"Record of the case has been examined and arguments of the applicants given careful consideration. It is observed that the fault/offence committed in the instant case duly has been admitted at the original stage and the applicants themselves requested for summary adjudication without issuance of a show-cause notice as they did not want to contest the findings of the Customs. As regards variation in the valuation of old used and serviceable rubber flaps, it is observed that value of substandard/serviceable material depends upon variety of factors including their physical attributes and can vary from lot to lot. Moreover, the impugned goods are out of customs charge and section 29 of the Customs Act, 1969 serves as' a bar for any alteration /amendment in the bill of entry. The Federal Government, taking into consideration al; aspects of the case, do not rind any reason to interfere with the impugned order which is correct in law and on facts. The revision application has no merit and is rejected."

5. As the goods imported by the petitioner are no longer available for examination, it is not possible to give any finding contrary to the earlier finding given by the Customs Authorities. If the petitioner was not satisfied with the conclusions drawn by them, he should not have taken the delivery of goods anti challenged the same before the appropriate forum but instead of doing so, he himself volunteered for summary adjudication of the case and got the consignments released against the payment of redemption fine. In these circumstances, he is estopped by his conduct from challenging the orders of the Customs Authorities, at this stage. In consequence, the writ petition is dismissed. A.A./M-156/L Petition dismissed.