1990 CLC 881 (PLP)

‑‑‑‑S. 156 (14)‑‑‑P.C.T. Hdgs. Nos. 48.01 & 48.07‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Customs duty‑‑‑Petitioner imported duplex board (cardboard) and submitted bills of entry describing consignments as uncoated board falling under P.C.T. Hdg. No. 48.01 which were assessed‑‑‑Ninety per cent of consignment was released to petitioner and ten per cent of goods detained for determining real quality of goods after chemical test‑‑‑Petitioner sold released goods which were utilized by purchaser where after petitioner received a show cause notice stating that goods imported were found to be coated duplex board and not uncoated duplex board as declared by petitioner and that is why goods should not be assessed under P.C.T. Hdg. No. 48.07‑‑‑Petitioner asked for a copy of Chemical Examiner's report which was allegedly never supplied to him‑‑‑ Petitioner in support of his contention that goods were uncoated board relied upon certificate issued by Board Mills Association of the exporting country and various other reports issued by Testing Laboratories in country but Customs Authorities brushed aside these reports and relied upon report of Chemical Examiner and test finding of Customs House Laboratory along with report of Humberg Laboratory West Germany holding board imported by petitioner as coated‑‑‑Customs Department ordered confiscation of balance quantity of duplex board lying with Customs Authorities under S. 156 (14) of Customs Act‑‑ Petitioner made specific allegations in petition with regard to non‑supply of documents relied on by Customs Department against him‑‑‑No counter‑affidavit had been filed on behalf of Department to rebut allegations‑‑‑Orders passed by Department against petitioner made it clear that none of documents filed by petitioner in support of his contention were considered by the Department‑‑ Held, orders passed by Department were illegal and of no legal effect‑‑ Department was directed to rehear case and determine same after taking into consideration documents filed and relied upon by petitioner and after making available to petitioner report of Chemical Examiner. Muhammad Saeed for Petitioner. A. Sather for Respondents. Date of hearing: 20th March, 1989. SAEEDUZZAMAN SIDDIQUI, J.‑‑The petitioner has challenged in this petition the orders of respondents Nos.1 to 3 dated 6‑6‑1975, 2‑9‑1976 and 16‑6‑1981 respectively. The facts forming the background of the above petition may be stated as follows:‑ The petitioner imported 170 bales of duplex board (cardboard) of 240 gms/m2 substance from Finland in the year 1974. On arrival of the goods at Karachi Port the petitioner submitted bills of entry describing the consigment as uncoated board falling under P C T Heading No.48. 0l which was accordingly assessed and 90% of the consignment was released to the petitioner by the Customs authorities. However 10% goods were detained for determining the real quality of the goods after a chemical test. The petitioner sold the released goods to M/s. Premier Tobacco Industries Limited and it is alleged that the duplex board sold by them to M/s. Premier Tobacco Industries was utilised for manufacturer of cigarettes shells. On 14‑9‑1974 the petitioner received a show‑ A cause notice from respondent No.1 in which it was alleged that the goods imported by the petitioner were found to be coated duplex board and not uncoated duplex board as declared by the petitioner in their bills of entry and accordingly the petitioner was called upon to show cause why the consignment already released in their favour and the remaining quantity lying with the customs authorities should not be assessed under P.C.T. Heading No. 48.07 at the rate of 75% Customs duty plus 25% FRSC and sales tax 10%. The petitioner contested the above notice and among other grounds requested respondent No‑1 to supply copy of the chemical examiner report which they alleged was never supplied to them. The petitioner in support of their contention that the dulex board imported by them was uncoated board relied upon the certificate issued by the Finnish 1 Board Mills Association, test report of Adamjee Paper & Board Mills,1 Now sharah, Control and Testing Laboratory, test report of Central Testing Laboratories, Government of Pakistan, test report of Federal Institution for Material Research (BAM), Humberg, and various other documents which included extract from literature on paper technology. Respondent No.1 however, did not agree with the contention of the petitioner and relying mainly on the report of chemical examiner and the test finding of the Customs House Laboratory alongwith the report of Humberg Laboratory, West Germany, held that the board imported by the petitioner is coated board and not surface sized. The certificate, various test reports and other meterial relied upon by the petitioner was brushed aside by respondent No.1 on the ground that the petitioner had failed to produce any direct proof in the form of test report from a foreign laboratory or otherwise which stated that the duplex board are surface sized. Accordingly, respondent No.1 ordered for confiscation of balance guantity of duplex board lying with the customs under section 156 (14) of the Customs Act but gave option to the petitioner to redeem the goods on payment of a fine of Rs.10,000 and a penalty of Rs.30,

000. It was further directed by respondent No.1 that the goods should be assessed under appropriate item of the Tariff. The petitioner filed appeal against the order of respondent No.1 before respondent No.2 who rejected the same on the basis of alleged opinion furnished on the controversy by the Nomenclature Committee of Brussels. Respondent No.2 found that according to opinion of Nomenclature Committee of Brussels even if the paper or board are slightly coated the same could be classified under Heading No.48.07. Respondent No.2 however, did not agree with respondent No.1 that the petitioner was guilty of any mis-declaration at the time of submission of bill of entry, and accordingly remitted the fine and penalty imposed on the petitioner. The petitioner was accordingly directed to pay customs duty according to Heading No.48.07. The petitioner preferred a revision petition before respondent No.3 but the same was rejected and the decision of respondent No.2 was upheld. Learned counsel for the petitioner contended before us that at no stage of the proceedings the petitioner was supplied either the test report of the chemical laboratory of the respondents or the alleged report of Nomenclature Committee of Brussels which was the basis of the rejection of the claim of petitioner by respondents Nos.2 and

3. It is accordingly contended by the learned counsel that the petitioner has been condemned unheard in the case inasmuch as the material which was used by respondents against the petitioner was never made available to them to enable the petitioner to meet the same. In addition to it, learned counsel, also contended that the respondents while deciding the controversy did not consider the certificate and test reports furnished by the petitioner which clearly established that the duplex board imported by the petitioner was uncoated. The petitioner also complained that D.I.N. report' furnished by the petitioner on the imported material was also overlooked by the respondents. With regard to the findings of the Nomenclature Committee of Brussels relied by respondents Nos.2 and 3, the learned counsel, firstly, complained that this report was never made available to the petitioner either at I the time of hearing of their case by respondent No.2 or at the time of I consideration of revision application by respondent No.3. Additionally it contended by the learned counsel, that the petitioner when subsequently obtained, an uncertified copy of this report it revealed that it was based on the testing or samples which were imported from Germany and Japan respectively and this report did not refer to the examination of Duplex Board imported by the petitioner from Finland. It is accordingly contended that this report was totally irrelevant. The contention raised by the learned counsel for the petitioner are not without substance. The petitioner has made specific allegations in his petition with regard to non‑supply of the documents relied by respondents against him. No counter‑affidavit has been filed on behalf of the respondents in the case to rebut these allegations. It is also quite clear from the orders passed by respondents in the case that none of the documents filed b), the petitioner in support of its contentions were considered by any of the respondents, though ` some of these documents, namely, the certificate from the country of origin, and the test reports of various agencies in respect of duplex board imported by the I petitioner had important bearing on the issue under consideration. We, accordingly, allow the petition, and declare the orders passed by respondents Nos.1 to 3 as illegal and of no legal effect. Respondent No.1 is directed to re‑hear the case and determine the same after taking into consideration the documents filed and relied upon by the petitioner and after making available to the petitioner the chemical examiner's report and the report of Nomenclature Committee of Brussels and any other document which the respondent wishes to rely on in connection with the above case. There will be no order as to costs. M.Y.H./D‑59/K Case remanded.