1983 PLP 1474 (CLC)

SAEEDUZZAMAN SIDDIQUI, J.-The petitioner has challenged in this Constitutional Petition the order of respondent 4 dated 4th February, 1975 assessing the spindle holders and plastic rings imported by them under item No. 8438 (C) of the Customs Tariff for purposes of Customs duty and sales tax. The petitioner was issued import license bearing No. 430653 dated 7th June, 1974 which was valid upto 6th June, 1975 for import of machinery and mill work, a.o.s. and parts and accessories thereof and mainte nance spares all sorts excluding item notified in part of Annexure XIII and of value exceeding Rs. 23,

000. It is an admitted position that the import licence issued to the petitioner covered import of all items mentioned at Serial No. 176 of free list of the Import Policy Order of 1973 which in turn amongst others included the items classified in the I. T. C. schedule as item No. 84.38, IV and V. The peti tioner imported spindle holders which are also known as "Bolster Unit" and plastic rings for spindle value of Rs. 1,99,912.00 against the above licence and submitted bill of entry for clearance of these goods to Customs department on 14th November, 1974 when the consignment arrived at the Karachi Port. The goods were first examined by the shed appraiser of the Customs who was of the view that articles imported by the petitioner fell under item No. 84.38 (D) of Customs Tariff on which Custom duty @ 20% ad volorem is payable and is free of sales tax. However, respondent 4 did not agree with the opi nion of shed appraiser and assessed the goods as falling under item No. 84.38 (C) of Customs Tariff and demanded customs duty at the rate of 50% ad valorem plus sales tax thereon. This order of respon dent 4 assessing the goods of petitioner under item No. 84.38 (C) of Customs Tariff was passed on 7th February, 1975. The petitioner, in stead of challenging the above order of respondent in accordance with the provisions of Sea Customs Act directly filed the above petition which was admitted to regular hearing on 8th May, 1975. At the hearing of his petition the learned counsel for the respondents raised preli minary objection as to the maintainability of this petition on the ground that the petitioner had alternate remedy by way of appeal and revision against the order of respondent 4 which they failed to exhaust before filing the present petition. From the order dated 8th May, 1975 it appears that this contention was also raised before the Bench at the time of admission of this petition but in spite of this objec tion, by the counsel for respondents, the Bench admitted this petition to regular hearing. In reply to the preliminary objection raised by the learned counsel for the respondents, the learned counsel for the petitioner submitted that no doubt an appeal was competent against the order of respondent 4 and a further remedy by way of revision was also available before respondent 2 but in the present case both these authori ties had already determined the issue involved in the case and therefore these remedies were only illusory. It is further contended by the learned counsel for the petitioner that the remedy by way of appeal in the present case could not be considered as an efficacious remedy as the petitioner was required to deposit the amount of custom duty demanded by the respondent 4, before his appeal could be considered on merits. The contentions of petitioner's counsel are not without force. In para graph 8 of the counter-affidavit filed on behalf of respondents 3 and 4 in the above petition on 5th January, 1976, it is stated that the order for correct assessment in respect of the goods of petitioner we obtained by respondent 4 from respondent 3 before whom the appeal lay from the order of respondent

3. Similarly respondent 2 bad issued S. R. O. 502 (1)173, dated 6th April, 1973, holding that bolster unit fell under heading 84.38 of the first schedule to the Tariff Act, 1934. In these circumstances it is rightly contended by the learned counsel for the 'petitioner that no useful purpose could be served by filing appeal and revision before respondents 3 and 2 who had already expressed themselves on the issue involved in the case. Mere existence of an alternate remedy by way of appeal or revision is no bar to the filing of petition under Article 199 of the Constitution if such remedy was only illusory in nature. We therefore hold that in the circumstances of the present case the existence of alternate remedy by way of appeal and revision was no bar to the filing of the present petition. We accordingly over rule the preliminary objection raised by the learned counsel for the respondents. On merits the learned counsel for the respondents did not seriously dispute the contention of petitioner's counsel. The learned counsel for the petitioner contends that in accordance with the classification given in the Pakistan Customs Tariff, the items imported by the petitioner fell under heading No. 84.38 (D) on which custom duty is leviable at 20% ad valorem whereas respondents have assessed these goods as falling under heading 84.38 (C). The care of respondents as disclosed in the counter-affidavit of respondents 3 and 4 filed in the petition is that in accordance with Note 2 appended to section XVI of Pakistan Customs Tariff, a part of the machine is to be classified under tile same heading in which the machine is classified. In order to appreciate the stand of respondents in the case it will be advantageous to reproduce here para. 14 of their counter-affidavit which is as follows :- 14 (a) The orders are not bad in law. (a) In view of section note 2 (b) of section XVI of the Tariff, the parts of a machine are classified under the heading of the machine; as such spindle holders (bolsters and inserts) are classifiable under 84.38 (C) being the parts of spindles and have there. fore, been correctly assessed to duty and sales tax at the rate of 50% and 100% respectively under heading 84.38 (C). The whole case therefore hinges on a finding whether the "bolster unit" imported by the petitioner is part of "textile spindle" or not. Textile spindles are classified under heading 84.38 (C) of Pakistan Custom Tariff and correspond to item No. 326 of the Import Policy Order, 1973 and heading No. 84.38 II of I. T. C. Schedule. It is an admitted position that Import Licence issued to petitioner was valid for import of items mentioned at serial No. 176 import Policy Order of 1973, which included amongst other item No. 84.38 _IV and V of I. T. C. Schedule. It is also an admitted position that textile spindles are mentioned at Serial No. .326 of the Import Policy Order, 1.973 and the corresponding item for textile spindle in the I. T. C. Schedule is 84.38 II. It is not denied by the learned counsel for the respondents that there is no separate head either in the Pakistan Customs Tariff or in the

1. T. C. schedule which covered spindle holder (bolster Unit). It is accordingly contended by the learned counsel for the petitioner that since the articles imported by the petitioner do not fall under any specified heading of Pakistan Customs Tariff therefore they are covered under the heading 84.38 (D) which deals with "others". Textile spindles are a device used in textile mill for spinning yarn. It is defined; e in the Encyclopaedia of Textile edited by the Editors of American) Fabrics Magazine as follows:- "Spindle.-A long, thin rod that is used on certain textile machines for twisting and holding textile fibers in manipulation from silver form to spun yar. This upright device is found on slubbers, roving frames, jack frames, spinning, winding and twisting machines. Revolving at a very high rate of speed to perform its work, drawing, twisting and winding, the spindle has a bobbin, tube, or cop set around it so that the finished stock may be wound evenly and easily. The spindle is one of the oldest textile devices known to man. It is driven on machines of today by means of spindle banding which can drive a spindle over 12,000 r. p. m., if need be." Spindle is defined in the Webster's New World Dictionary, College Edition as follows :- "Spindle, rounded, use, wooden rod with tapered ends used in hand-spinning to twist into thread the fibers drawn from the mass on the distaff, and to wind the thread as it is spun : the rod or pin on a spinning wheel by which the thread is twisted and on which it is wound ; one of the rods of a spinning machine or shuttle holding the bobbins on which the thread is wound as it is spun. Mech. any rod or pin which turns around or on which something turns, as an axle, axis, or shaft ; a small axis, arbor, or mandrel. A needle like spike secured on a wider and heavier base, used to hold bills, notes, and other papers ; a measure of yard, containing 15,120 yard, of cotton and 14,400 yards for linen, biology the fibrous strands of achromatic material which form in a cell during mitosis and an iron rod or pipe surmounted by a ball, lantern, or similar perceptible object, fixed to a rock or sunken ref to serve as a guide and warning in navigation. v.i. spindled, spindling. To shoot up or grow into a long, slender stalk or stem, as a plant ; to grow long and slender v. To form into the shape of a spindle ; Io furnish with a spindle : to impale, as appears, on the needle like rod or a spindle." In McGraw-Hill Dictionary of Scientific and Technical Terms which is an American publication spindle is defined as follows :- "Spindle (CYTOL) A structure formed of fiber like elements just before metaphase that extends between the poles of the achromatic figure and is attached to the centromeric regions of the chromatid pairs. (DES ENG) A short, slender or tapered shaft. (NAV) A spar serving as a beacon. After reading the above definitions of spindle we are of the vie that by no process of reasoning spindle holder (bolster unit) imported C by the petitioner could be treated as part of spindles. Spindles holder (bolster) are used in the machine frame to hold the spindle to prevent it from failing and to ease the pressure " on it ; but by reason o being used as a support for spindle the bolster would not become the part of spindle itself. We accordingly accept this petition an declare the order dated 4th February, 1975 passed by respondent 3 assessing the spindle holders and rings under item No. 84.38 (C) of the Pakistan Customs Tariff as without any lawful authority. We are therefore of the view that spindle holders (Bolster Units) imported by the petitioner did not fall under heading 84.38 (C) of the Pakistan Customs Tariff and therefore the respondents wrongly demanded Customs duty from them at 50% ad volorem plus 10%. Since bolster unit were not specified under any specific heading of Pakistan Customs Tariff it will fall under the heading 84.38 (D) on which Customs duty is payable a 20% ad valorem. However, in the circumstances of the case we will make no order as to costs. M. A. R. Petition accepted.