1998 PLP 237 (SCMR)

SAJJAD ALI SHAH, J.

From these six appeals, in five, leave was granted by this Court vide order dated 8-2-1990 to examine the question whether High Court of Sindh, while exercising Constitutional jurisdiction, rightly undertook factual inquiry to conclude that subject goods, which are Fodder Crushers, fell under P.C.T. item No.84.28 and not 84.24. On the same ground, leave was granted separately on 7-5-1990 in petition from which C.A.No.607 K/90 has arisen. Because of commonality of facts and points of law, we propose to dispose these appeals by a single judgment.

2. At the time of hearing, objection was raised on behalf of respondents that petition for leave to appeal arising from C.A. No.202-K of 1990 was time barred by 30 days, when filed. Not disputing the delay, explanation was put forward on behalf of the appellants that in the process of obtaining certified copy of the impugned judgment, concerned officer in the High Court went on leave and the case-file remained locked in the almirah. This explanation is not satisfactory for the reason that name of this officer is not given nor further particulars as to from when and up to what date he remained on leave. Secondly even if the officer was allowed to remain on leave, it is unlikely that key would not be taken from him to see that office work continues without disruption and is attended to by some other officer by way of stop-gap arrangement, which is normally done, Explanation on the face of it, is vague and not acceptable, hence delay on that basis cannot be condoned. However, learned counsel for the respondents was amendable to the idea of hearing on merits as leave already has been granted to examine questions, which are of public importance.

3. Facts in the background giving rise to these appeals are that respondents imported fodder Crushers FC-450 from China under Import Policy of 1981-82 and the consignment arrived in February, 1982. For the purpose of assessment of duty, subject goods were placed under heading 84.28 of Pakistan Customs Tariff schedule free of custom duty at that time. Customs authorities attempted to classify the subject goods under heading 84.24 of the Pakistan Customs Tariff schedule as chaff-cutters liable to 85% ad valorem duty and 10 % sales-tax and that is how the dispute started between the parties. In this context Customs authorities opened files of importers for action under section 3 of Imports and Exports Control Act, 1950 read with section 16 of the Customs Act, 1969 and insisted un payment of duty as stated above and the goods were detained.

4. While this controversy was on, one importer (not respondent before us) filed two Constitutional Petitions in the High Court of Sindh at Karachi. It was submitted on behalf of Importer/petitioner that for determination of value and rate of import duty, subject goods were covered by section 30 (a) of the Customs Act, 1969 as they were ware-housed on account of dispute over payment of duty. On the other hand, stand was taken on behalf of customs authorities that section 30 (b) of the Customs Act would apply and the rate of duty would be the same as applicable on the day when bill of entry was filed for clearance of goods from the ware-house under section 104 of the Customs Act. Additionally reliance was placed on amendment made in Pakistan Tariff by Finance Ordinance XII of 1982 gazetted on 17th June, 1982. Constitutional petitions were partly allowed as prayed and it was held that if the case fell under section 30 (b) of the Customs Act then duty would be determinable under item No.84.28 as amended by Ordinance XII of 1982 but if clause (a) applied then it would be governed by item 84.28 as it stood before the amendment. High Court did not go into the question as on what date the bill of, entry was filed on account of inadequacy of material on the record and left it open for decision by the Customs authorities.

5. After the decision in the High Court as stated in the above paragraph, Customs authorities refunded duty on some machines but then on the direction from Central Board of Revenue, again maintained earlier stand in view of change of language in the Import Policy 1982-83 providing in item 84.28 as " chaff cutters, fodders choppers and the like". In these circumstances respondents approached High Court and filed Constitutional petitions, which have been allowed vide judgment dated 24-1-1989 impugned in the present appeals. It would not be out of place to mention here that against the decision of High Court in earlier Constitutional petitions mentioned in preceding paragraph of the judgment, Collector of Customs filed C.P.L.A. No.K-283/83 in the Supreme Court, which was dismissed as not pressed by the Deputy Attorney General on the ground that Chief Controller, Imports and Exports declared vide his letter dated 12-4-1982 subject goods to be under heading 84.28-A of ITC Schedule, which was consistent with the claim of importers.

6. Respondents before us, imported Fodder Crushers, Model FC-450 described in the catalogue as versatile kind of machine, capable of effectively reducing a very wide range of form materials, either wet or dry. The machine is specially ideal for crushing Maize Core, Peanut shell and feeding stuff such as Soybean, Sorghum, Sundried Sweet potato chips, oil cakes and other similar products and will rapidly take and reduce them all to finer degree, in one operation, with no residue left in the machine. In the Import Policy of 1981-82, item Nos.84.24 and 84.28 were as under:- 84.24 Agricultural and horticultural machinery for soil preparation or cultivation (for example, ploughs, harrows, cultivators, seed and fertiliser distributors) laws and sports ground rollers: Free list 001 ............. 002............. 003............. 004 Chaff cutters ....... 84.28 Other agricultural, horticultural, poultry-keeping and bee-keeping machinery germination plant fitted with mechanical or thermal equipment, poultry incubators and brooders. Banned Free list 001 Other

agricultural,

and horticultural,

machinery

and germination plant. Free list

7. In the abovementioned Import Policy, chaff cutter was shown as banned item for the reason that it was locally manufactured and therefore import of it was made liable to 85% ad valorem custom duty plus ten per cent sales tax. As against that fodder-crusher, which is different machine altogether from chaff cutter was not covered under heading 84.24 but could have been covered under heading 84.28 as other agricultural machinery which was also on free-list and exempt from customs duty. For this reason, importers contended that imported fodder-crushers were exempt from payment of customs duty. In this context reference can be made to letter dated 12th-April, 1982 of Chief Controller of Imports and Exports in which after describing fodder-crusher as stated above, it is categorically mentioned as under:- "A machine of this description and end-use is classified under S.No84.28A of the ITC Schedule. Import thereof is covered by the description "Machinery and millwork, n.o.s... ", appearing currently at S.No.412 of Annex. I to the Import Policy Order, 1981 subject to the value limit specified. "

8. Letter of Chief Controller, Imports and Exports is dated 12th April 1982, when in the same years Finance Ordinance, No. XII of 1982, was promulgated and gazetted on 17th June, 1982, whereby scope of P.T.C. heading 84.28 was enlarged to include as under:- 84.28 Other agricultural, horticultural, poultry-keeping and bee-keeping machinery germination plant fitted with mechanical or thermal equipment, poultry incubators and brooders. A. Machinery: 01 Chaff cutters, fodder choppers and the like 02 Other B. Parts."

9. Items at A-O1 were made liable to payment of Customs Duty 85 % ad valorem and at A-02 and B free. Attempt was made to equate fodder crusher with fodder chopper and treat them both in the same category for 85% ad valorem customs duty, but object could not be achieved and was still elusive for the reason that there was obvious difference between "chopper" and "crusher". This brought about confusion in the Customs Department and in the result Collector of Customs (Appraisement) addressed letter on 3rd September, 1983 to the Central Board of Revenue seeking clarification on the question of classification and assessment of Fodder Crusher FC-450 particularly in view of Judgment of the High Court in C.P: No.D-148/82 and others, which are mentioned above, Relevant paragraph from this letter is reproduced as under:- "It is now to be decided, whether fodder crusher in question falls under sub-heading AO-1 or AO-2 of heading 84.28 dictionary meaning of the word 'Chop' is to cut with sudden blow or to cut into small pieces involving a chopping action. Fodder crusher, which is a grinding or pulverising machine does not prima facie fall within 84.28 A-01. However, in view of Board's order contained in C.No.I (33)/Tar-I/82, dated 7-10-1982, copy annexed 'A' assessment of the subject Fodder Crusher model FC-450 has been carried out under heading 84.28 A-01 at 85 % ad val. and sales-tax at 10 % . The duty as aforesaid, has been paid by the importers under protest. "

10. In the meantime another amendment was made by Finance Ordinance, 1983 which was gazetted on 12th June, 1983,. By this amendment contents of 84.28 A-O1 have been replaced by "machines & appliances for preparing fodder" and made liable to 85% ad val. customs duty and 10% sales-tax. From what is stated above, one thing is crystal clear that after Finance Ordinance, 1983 Central Board of Revenue has achieved what is wanted before and the confusion is also cleared and set at rest. Difference between "Fodder Chopper" and "Fodder Crusher" has now retained academic interest only because now the category is generalised to. include all machines and appliances for process employed is of chopping or crushing and made liable to levy of customs duty at 85% ad valorem and 10% sates-tax. However, this amendment in Finance Act, 1983 cannot be applied retrospectively, and would not cover cases, in which bills of entry were filed in 1982 under section 30 (a) or before the coming into force of the amendment of 1983. It is admitted by the Customs department in the letter addressed to Central Board of Revenue dated 3rd September, 1983 mentioned above that payment of customs duty had been disputed by the importer and paid by some of them under protest. In such circumstances on account of dispute whether subject goods were liable to customs duty or not, those goods had to be ware-housed as claimed by the importers. In the circumstances, it can be said that in these cases section 30 (a) would apply and subject goods are not liable to custom duty if bills of entry had been filed before 12th June, 1983 when amendment came into force by Finance Ordinance, 1983.

11. On the question as stated in leave granting order whether High Court was competent to go into factual inquiry to classify the imported goods, no attempt was made to address any serious argument for or against the proposition. However, we are of the view that High Court was competent to go into that question because legal rights of the parties were involved requiring interpretation of headings of Pakistan Customs, Tariff. We do not find any flaw or legal infirmity in the judgment of the High Court, to which any exception can be taken. Mr. Khurshid Anwar has submitted a separate note with dates of filing of bills of entry in each appeal. However, we direct Customs authorities to dispose of cases of respondents in accordance with legal position mentioned above in this judgment. In the result appeals are dismissed with no order as to costs. A.A./C-4/S Appeals dismissed.