P L D 2001 Lahore 5 (PLP)

The main point that has been raised in this petition is as to whether the petitioner was treated alike the other importers of the similar goods in the matter of valuation fixed by the Customs Authorities. Similar grievance has been made by the petitioner in W.P. No.3994 of 1986 and W.P. No.4114 of 1987. Hence are being disposed together.

2. The petitioners in these petitions had imported Rubber Belts which on examination were found to be stock lot/job by the Customs Authorities. A show-cause notice was issued by the Customs Authorities that the declared value of the consignment was not correct and mis-declaration had been made by the petitioner. The case was contested by the petitioner. A Deputy Collector, however, fixed the price at Rs.18,000 per metric ton and also imposed a fine. In appeal, the case of the petitioner was that there was no mis-declaration or untrue statement by the petitioner and the value determined by the Deputy Collector was on higher side as for identical goods the value determined by the Customs Authorities was Rs. 14,000 per metric ton. The appeal was, however, dismissed, where against, a revision application was filed by the petitioner which was also dismissed. This is a writ petition by the petitioner which was admitted to hearing on perusal of a statement, supplied by the petitioner showing clearance of consignment of similar goods on declared value of Rs. 14,000 per metric ton.

3. It is contended by the learned counsel for the petitioner that number of consignments of similar goods had been cleared at the value of Rs. 14,000 per metric ton prior to the consignment of the petitioner and even thereafter but the petitioner has not been treated alike by the Customs Authorities and has been a victim of discrimination in the matter. It is contended that this aspect of the matter has not received due application of mind by the authorities concerned.

4. Learned counsel for the respondents contends that each case may have a different background including the country of origin and the time of importation, therefore, the valuation may vary from time to time. It is contended that fixation of valuation is essentially a matter for determination by the Customs Authorities and cannot be gone into by this Court in writ jurisdiction.

5. In support of the assertion of the petitioner that he had not been treated equally as consignments of other importers had been cleared at a lower price than has been fixed in the case of the petitioner certain instances were cited by the petitioner before the Deputy Collector as also the Collector of Appeals. It is the grievance of the petitioner that by mentioning few instances of higher fixation of the price, the appeal was rejected by the Collector without due application of mind to the case of the petitioner and in revision as well this aspect was not dealt with the cogent reasons. To be treated alike is the fundamental right of all similarly placed in matters of identical nature. There has to be a rationale behind and real distinction based on reasonableness and cogent reasons to treat differently. A list of importers had been brought on record before the Court which showed that consignments of similar importers of goods had been cleared at a lower value than had been fixed in the case of the petitioner. Unless it could be shown by advancing cogent reasons the petitioner was entitled to be treated alike. There seems to be substance in the contention of the learned counsel for the respondents that this Court cannot determine the valuation and it is for the Customs Authorities to fix the same in accordance with law. However, when there is an allegation of arbitrariness and a person complains of victim of discrimination, it is the duty of State functionaries to satisfy him that he has not been treated differently.

6. In Messrs Farooq International v. The Chief Controller of Imports and Exports and 4 others 1985 CLC 1781, it was held by a learned Division Bench that: -- "The Customs Authorities are expected to assess the value of goods and determine the normal price according to law. If the respondents have been valuing the goods of the same nature at particular rate for sufficiently long period then unless some new factors have intervened or the price in the country from where the goods were purchased has changed, it is just and proper that all other importers should be given similar treatment. In the present case, the petition has cited several examples where the normal price of similar goods has been accepted by the Customs Authorities @ US $21 per lb. In these proceedings it is not possible to enter into disputed question of fact for determining the normal price and the same is left open to the Customs Authorities to determine according to law." Taking the said view, the petition was accepted and the matter was left open for the Customs Authorities to determine the valuation. In Indus Automobile (Pvt.) Ltd. v. Central Board of Revenue and 2 others PLD 1988 Karachi 99, the view taken by the learned Division Bench was that the question of fixation of valuation was to be determined by the hierarchy provided under the Act and not by the High Court in Constitutional jurisdiction and even where interference is made, the case is generally remanded back to the Customs Authorities. Accordingly the matter was remanded to the Customs Authorities for determination afresh in accordance with law after providing opportunity to the petitioner. In Messrs Sasta Autos v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others 1991 MLD 1582, again by setting aside the orders of the Customs Authorities the matter was remanded to "determine the value of the goods in accordance with the provision of law, In C.A. No.970 of 1993, Central Board of Revenue, Islamabad etc. v. M/s. United Sugar Mills Ltd. etc., the dispute was with regard to the fixation of production capacity of the respondent Sugar Mill. It was the case of the respondent that the production capacity of another Mill (M/s. Al-Noor Sugar Mills Ltd.) having similar kind of machinery was fixed at 1500 tons per day and the respondent/Mill was discriminated in fixing its capacity at 2000 tons per day. The writ petition of the respondent/Mill was disposed of by the High Court that the respondent/Mill was entitled to similar treatment. The appeal, filed by the Central Board of Revenue, was dismissed by the Supreme Court, paragraph No.3 of which may be reproduced hereunder:-- "The learned Judge of the High Court after considering the material on the record and the report of the Committee constituted by the appellants in pursuance of the direction of the High Court and keeping in view the production capacity fixed in the cases of M/s. Al-Noor Sugar Mills, etc., with regard to the same type of machinery in the similar circumstances, came to the conclusion that the order passed by the appellants fixing the production capacity of the respondent-Mill at 2000 tons per day was not sustainable in law and the respondent-Mill had been discriminated, and accepted the writ petition through the impugned judgment dated 10-5-1992 and the appellants were directed to assess the production capacity of the said Mill at 22,800 tons per year." I am, therefore, inclined to remand the matter to the Collector Customs (Appeals), who should re-determine the appeal, filed by the petitioner by taking into consideration the circumstances of all those cases/instances, cited by the petitioner that he was entitled to similar treatment as the importers of those consignments: This petition is accordingly accepted by setting aside the orders of the authorities with the above observations. No order as to costs. Q.M.H./M.A.K./S-98/L Order- accordingly.