1996SCMR1294 (PLP)

AJMAL MIAN, J.

This is an appeal with the leave of this Court against the judgment dated 20-2-1992 passed by a Division Bench of the High Court in Constitution Petition No.665 of 1991 filed by the respondents challenging the appellants' action not to allow the export of the four consignments of polyester and textile fabrics, bed-sheets etc. in respect of which the respondents filed Bill of Entries in February, 1991, allowing the same in the following terms:-- "For the foregoing reasons we declare that the action taken by the respondents and impugned in this petition is without lawful authority "and to be of no legal effect. We, therefore, allow this petition with costs. " Leave to appeal was granted to consider, whether the appellants' impugned action could be justified if prima facie sections 16 and 32 of the Customs Act, 1969 (Act IV of 1969), hereinafter referred to as the Act, were attracted to, and whether the High Court was justified in allowing the petition. This Court had declined to grant leave against the finding of the High Court that the subject-matters of the four consignments in question were not covered by the notifications issued under section 3 of the Imports and Exports (Control) Act, 1950 read with section 8 of the Pakistan Standards Institution (Certification Marks) Ordinance, 1961. '

2. The brief facts are that respondent No. l is a partnership firm, whereas respondent No. 2 is a public limited company. They inter alia, deal in the export of textile products. It seems that in February, 1991, they filed Bill of Entries in respect of export of four consignments comprising of polyester and textile fabrics, bed-sheets etc. It appears that appellants Nos. l and 2 had drawn samples from the above consignments for the purpose of determination of the valuation of the goods etc. It further seems that appellant No. l issued show-cause notices dated 10-7-1991 to the respondents alleging therein that on physical check of goods intended to be exported by them, it was found that the cotton printed bed sheets with pillow covers and other cotton printed fabrics were of substandard quality. It was also alleged that the count and sizes were also contrary to the declaration made in the invoices and bills of entries resulting into contravention of the provisions of Notification No.SRO. 1169(1)/73, dated 8-8-1973. It was further alleged that the respondents had also contravened the provisions of sections 16 and 32 of the Act entailing punishment under section 156(1), (9), (14) and (77) read with the aforesaid S.R.O. The goods of the above consignments were seized by the appellant and notices under section 171 of the Act were also served.

3. It seems that prior to the issuance of the above show-cause notices, the respondents filed above Constitution petition on or about 30-5-1991 as they were stopped from exporting the above consignments, which was allowed in the above terms. The High Court has inter alia held that the goods, which are the subject matter of the above four consignments, were not covered by the Notifications issued under section 3 of the Imports and Exports (Control), Act, 1950 read with section 8 of the Pakistan Standards Institution (Certification Marks) Ordinance, 1961. Accordingly, it allowed the above petition. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above question.

4. We have heard Mr. Ikram Ahmed Arisari, learned Deputy Attorney General for the appellants and Mr. G.H. Abbasi, learned Advocate Supreme Court for the respondents. Mr. G.H. Abbasi, learned A.S.C. for the respondents, has invited our attention to the corrigendum dated 13-7-1991 to the above show-cause notices, which reads as follows:-- "Government Of Pakistan Collectorate Of Exports, Customs House, Karachi. No. S1/ Misc/64/91-HQ (Exp)/93, dated 13th July, 1991. Corrigendum Show-Cause Notice Subject: Show-Cause Notice issued Vide No.Sl/Misc/64-HQ (Exp): The following correigendum is issued in respect of the above show cause notice. In para. 1 for the words "enormously higher value causing loss to the public exchequer by way of getting illegal duty drawback" read as under:-- "contrary to Export (Quality Control) Order, 1973. " In line 3 from bottom for the words "to get more duty drawback for which they are not legally entitled" read "of contravening the Export (Quality Control) Order, .1973`. " Delete the last sentence in para. 1 on page

2. The error is regretted. Hearing in this case will be held on 10-8-91 at 11-00 a.m. (Sd.) (M. Anwar Ali), Collector of Customs (Exports)."

5. From the above-quoted corrigendum, it is evident that the appellants solely relied upon the alleged contravention of the provisions of the Export (Quality Control) Order, 1973, and not on any alleged misdeclaration as to the value or alleged intention to get more duty drawback for which they were not legally entitled to. Since before the High Court the appellant failed to produce any notification issued under the provision of the Imports and Exports (Control) Act, 1950 read with section 8 of the Pakistan Standards Institution (Certification Marks) Ordinance, 1961, covering the goods which were the subject-matter of le the consignments, the High Court had rightly held that there was no contravention of the above provision of the Ordinance. We had also delined to grant leave on the above factual aspect. Leave was granted to consider, whether prima facie the above sections 16 and 32 of the Act were attracted to. At, the stage of grant of leave, the above corrigendum was not pointed out and, therefore, leave was granted on wrong assumption of facts. We are, therefore, of the view that it is a fit case where leave order should be recalled. We, accordingly, recall the leave order and dismiss the above appeal. However, there will be no order as to costs. A.A./C-157/S Appeal dismissed.