1989 PLP 2336 (CLC)

The petitioners imported a consignment of emery powder No.(i) 000, (ii) 0, (iii) 90, and (iv) 120 valued at Rs.43,580 from Holland against Import Licence NOS.A‑365388 and A‑365197, dated 4‑9‑1981 and 4‑10‑1981. The respondent No.l accepted emery powder No.000 and 60 as emery powder and classified emery powder Nos.90 and 120 as emery grain, and imposed a fine of Rs.21,790 which was paid under protest and goods were cleared on 10‑5‑1982. Subsequently, on the petitioners' request the samples were taken and sent to Chemical Laboratory on 11‑5‑1982 and such reports dated 24‑5‑1982 were received by the Customs. Since the petitioners had opted for summary adjudication the matter was heard by respondent No.l, who passed an order dated 4‑1‑1983, holding the emery powder Nos.90 and 120 as emery grain and not powder. The order for penalty was thus maintained. The said order in appeal, before Collector of Customs Appraisement (Appeals) arid Central Board of Revenue in Revision was maintained. The petitioners have now filed the above Petition under Article 199 of the Constitution of Pakistan, 1973, challenging the aforesaid three orders. Mr. A.H. Shah, learned counsel for the petitioners, in support of the petition, submits that the Chemical reports in respect of all the four numbers of emery powder is one and the same i.e. "The samples on test is found to be emery of natural variety." As such it cannot be said, with certainty, that the goods is `emery powder' or `emery grain'. We agree with the learned counsel for the petitioners that the reports of the chemical examiner, in the circumstances, cannot form the basis that the goods viz Nos.90 and 120 are `emery grain' and not `emery powder'. There is, however, another fact which is noticed that at the time of clearance it was found on "physical examination" of the goods by the Customs that item Nos.90 and 120 were emery grain and not powder. The petitioners were given option either to accept Summary Adjudication or issuance of show‑cause notice to them. The petitioners opted for Summary Adjudication. The case, therefore, apart from test report, has proceeded on the "physical examination" of the goods which lies within the power of the appropriate Officers of Customs Department, as provided under section 199 of the Customs Act, 1969. This being pure question of fact, we are afraid this Court cannot go into factual inquiry under its Constitutional jurisdiction. No allegation as to the jurisdictional fact has been made before us. Learned counsel for the petitioners, at the last leg of his argument, submits that he had requested the appellate Authority to send for Chemical Examiner to be examined by him for the purpose of clarification of the test reports, but he was not summoned. There is no material on record to substantiate the said assertion, as no copy of the memo of appeal has been filed by the petitioners. There is, however, an observation by Revisional Authority, in its order, that such a request was made by him which was refused on the ground that the goods have already been got cleared by the petitioners long back as on 10‑5‑1982. The learned counsel further submits that the samples sent to the Laboratory must have been there, and there was no difficulty in summoning the Chemical Examiner at the revisional stage. The submission is misconceived. Perhaps, the learned counsel has ignored the provision of subsection (2) of section 199 which provides that "after the purpose for which a sample was taken is carried out, such sample, shall if practicable be restored to the owner, but if the owner fails to take delivery of the sample within one month of the date on which he is asked in writing to take its delivery, it may be disposed of in such manner as the Collector of Customs may direct." In any case we cannot go into this inquiry 1 whether the sample was available or not at the revisional stage. The refusal to summon the chemical examiner by the revisional authority seems to be in proper exercise of his jurisdiction and cannot be interfered with, m the circumstances of the case in our constitutional jurisdiction. The petition is therefore dismissed with no order as to costs. A.A./S‑443/K Petition dismissed.