2005 PLP 1132 (PTD)

SABIHUDDIN AHMAD, J.

The petitioner imported certain chemicals from Holland in two consignments at the declared value of US $ 1119 per m.t. The goods were inspected and valuated for the purposes of determination of customs duty by Messrs Cotecna Inspection S.A. appointed under the Inspection Valuation and Assessment of Imported Goods Rules, 1994. According to clean report finding of Messrs Cotecna, dated 27-3-1995, the transaction value of the goods was found to be US $ 1224 per m.t. and the enhanced amount of customs duty was paid by the petitioner and the goods were released. Nevertheless the respondent No.1 issued a demand/show-cause notice, dated 12-8-1995 stating that during the course of post importation check it had been observed that the goods were assessable on the basis of D.M. 4095 per m.t. equivalent to US $ 2773 per p.t. instead of US $ 1224 per m.t. determined by Messrs Cotecna. Along with aforesaid notice a photocopy of a invoice, dated 26-5-1995 stated to have been issued by supplier Bayer, addressed to a purchaser Chendyes Pakistan (Pvt.) Ltd. was enclosed, wherein the price of the same goods of German origin was stated to be 3.90 D.M. per K.G. It has been explained that the price of US $ 40.95 per m.t. has been calculated after taking into account 5% loading charging.

2. Mr. Abdul Sattar Silhat, learned counsel for the petitioner contended that the documents described as evidence forming the basis of the show-cause notice speaks of the value of the goods in Germany and could not be taken into consideration for the purpose of determining transaction value of the goods under section 25 of the Customs Act. In support of the contention learned counsel has, inter alia, relied upon the judgment of the Supreme Court in the case of Lateef Brothers v. Deputy Collector of Customs (1992 SCMR 1083) and a Division Bench of this Court in Kousar Trading Company v. Government of Pakistan (1986 CLC 612).

3. The above judgment indeed support the petitioner s point of view. In the case of Lateef Brothers Muhammad Afzal Lone, J. speaking for the majority proceeded to hold that no evidence of the price of the goods from any country except the one from which the goods originated or were imported could be taken into consideration. Though Rustam Sidhwa, J. in his minority opinion took the view that if no evidence of the price from country of origin could be obtained other evidence could be taken into consideration. In Kausar Trading Company a Division Bench of this Court held that in the absence of evidence regarding price in the country of origin no proceedings under section 32 could be initiated.

4. Mr. Raja Muhammad Iqbal, learned counsel for the respondent on the other hand, argued that the veracity of the evidence could be determined in the course of proceedings before the appropriate authorities. Moreover relying upon the pronouncement of the Supreme Court in New Electronics v. Federation of Pakistan (PLD 1994 SC 363). Learned counsel contended that as to question of valuation could not be gone into by this Court exercising Constitutional jurisdiction. Indeed there could be no cavil of the above proposition, in the instant case we are not going into question of the worth of the evidence, but would only hold that the evidence accompanying the show-cause notice could not form a valid basis for initiating proceeding under section 32 of the Customs Act. The petition is accordingly allowed and the notices are declared to be unlawful. M.B.A./C-22/K Petition allowed.