2003 PLP 409 (PTD)

21. Mr. S. Tariq Ali, learned Standing Counsel, appearing in the cited case took plea that the petition was not maintainable as the petitioner had failed to exhaust the revisional remedy available under section 196 of the Customs Act. The learned Standing Counsel had taken several other pleas.

22. The learned Division Bench of this Court formulated several propositions including the following:‑‑‑ "(1) That availability of a revisional remedy is no bar to the maintainability of Constitutional petition. . (2) That where impugned orders are completely bereft of jurisdiction and patently perverse and illegal it is not essential to avail alternate remedies."

23. Contention raised by the learned counsel for the petitioner was accepted to be correct holding that where impugned action is completely without jurisdiction and prima facie illegal it is not essential to avail the alternate remedy. In order to determine whether the impugned action was without jurisdiction or not the learned members of the Division Bench proceeded on to examine if the. Customs Authorities have any jurisdiction to question into the valuation and scrutinize, description of the goods imported in the EPZ (which enjoy exemption for payment of tax duty). It was held that following Oskui Traders v. Collector of Customs, 1991 CLC 24, the application of the Customs Act and its rules are restricted to the extent that till such time the exemption S.R.O. or any of its like provision hold the field the Customs Authorities have no jurisdiction to scrutinize the question of under valuation, calculation of duties and misdescription of goods imported into the EPZ. It was further held that the Customs Authorities were not justified to levy any penalty under section 32(1) when admittedly there was no motive on part of the petitioner to evade tax due to the exemption in the field. It was also held as follows:‑‑‑ "We are of the view that where a person submits a declaration in the context of Customs Clearance and there can possibly no fiscal consequence contingent upon his declaration and that contingency of no fiscal consequence is either undeniable or regarding which the accused has demonstrated his knowledge or reason to belief that he though that no tax was leviable by no figment of imagination could it be said that the said person had any knowledge or reason to believe that his declaration/statement was false or untrue in any material particular. In this context the contention of Mr. Farogh Naseem that no penalty under section 32(1) is leviable for any alleged under valuation and misdescription where there can be no motive to evade tax and where such declaration would carry no fiscal consequence is correct. Any other interpretation would also give rise to an absurd situation where although no tax would be leviable on the main basic assessment but there could possibly be imposition of a penalty."

24. The petition was ultimately allowed and the impugned action was held to be completely without jurisdiction, illegal, void ab initio and of no legal effect.

25. She has placed reliance on the case of the Collector‑General, Excise and Land Customs, Chittagong v. Imdad Ali 1969 SCMR

708. The ratio of the judgment in the case of Eastern Rice Sydicate (Supra) was reiterated in this case.

26. Relying on the ratio of the above judgments, the learned counsel for the plaintiff has submitted that the conditions precedent for exercise of jurisdiction under section 32 of the Customs Act, 1969 are as follows:‑‑‑ "(1) The Department should establish that any person in connection A with any matter of customs has made, signed or delivered or caused to have delivered to an officer of customs any declaration, notice, certificate or other document whatsoever or has made any statement in answer to any question put to him by an officer of custom which he is required by or under this Act to answer, knowing or having reason to believe that such document or statement is false in any material particular. (2) By reason of any such document or statement as aforesaid or by reason of some collusion, any duty or charge has not been levied or has been short‑levied or has been erroneously refunded. (3) By reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short‑levied or has been erroneously refunded. (4) Where any duty or charge has not been levied or has been short levied or has been erroneously refunded and this is discovered as a result of an audit or examination of an importer's accounts or by any means other than an examination of the documents provided by the importer at the time, the goods were imported."

27. She has further submitted that in the case of Messrs Kamran Industries (Supra) it has been. clearly held that, "where a person submits a declaration in the context of Custom Clearance, and there can possibly be no fiscal consequence contingent upon his declaration and that contingency of no fiscal consequence is either undeniable or regarding which the person has demonstrated his knowledge or reason to believe that he thought that no tax was leviable, by no figment of imagination could it be said that the said person had any knowledge or, reason to believe that his declaration/statement was false or untrue in any material particular. No penalty under section 32(1) is thus leviable for any alleged under valuation and misdescription where there can be no motive to evade tax and where such declaration would carry no fiscal consequence." It was further held that the Customs Authorities shall not be justified to levy penalty under section 32(1) when evidently there was no motive on the part of the person to avoid tax due to the exemption in the field".

28. In the light of the above propositions, she has submitted that the mala fide on the part of respondent No.4. is evident from the fact that the goods were imported by the plaintiff in March, 2000, the license expired in June, 2000 and application for renewal was submitted in July, 2000, but no orders were passed and a show‑cause notice under section 32 was issued in December, 2000, but no order in original was made till 19‑10‑2002. She has submitted that a mala fide and colourable act is always devoid of any legal validity and is always without jurisdiction because the mala fide per se destroys the jurisdiction which is always an exercise of bona fide discretion. She has submitted that the order in Original was passed under a directive of this Court and the entire case of the department is contained in the said order. She has submitted that the order in original contains that the supplier in U.K. normally issue invoices in G.B.P. currency whereas in this case word G.B.P. was tampered with the words US $. It further contains that the Consultate of Pakistan in Glasgow has confirmed that when the invoices were produced for attestation it contained the value in Sterling instead of US $. After this observation, it has been inferred that the invoices had been tampered for the clearance of liquor from the customs against the forged documents. It further contains that the above Act on the part of plaintiff attracts the provisions of section 32 of the Customs Act, 1969, punishable under clause (14) of section 156 of the said Act. It was further urged that the aforesaid Act also tantamount to infringement of the license issued to the plaintiff and therefore, Diplomatic Duty Free Bonded Warehouse License issued to the plaintiff ‑was liable to be cancelled under section 13(3) of the Customs Act, 1969. She has pointed out that in the reply submitted on behalf of the plaintiff it was clearly contended that the Ministry of Commerce has not given the true picture to the Customs officials as they have conveniently ignored the correspondence which took place between the plaintiff and the supplier who issued the invoice. The copy of suppliers correspondence was also furnished' to show that the allegation of the plaintiff was baseless and incorrect. It was further contended that it was not a case of loss of any revenue to the exchequer. She has submitted that the suppliers in their certificate, dated 13‑5‑2000 clarified the position that they had shown the value of the liquor supplied in bound by mistake and the mistake was communicated to the Pakistan Embassy Glasgow and the Embassy had informed them that they had no concern with the value and therefore, they were further informed that the supplier would correct the mistake and forward the invoice to the customer (plaintiff). She has submitted that in the reply of departmental representative, before the respondent No. 4. the suppliers certificate was not denied but without any inquiry or evidence it was contended that the certificate is doubtful. It was emphasized by the departmental representative before the defendant No. 4, that, when the invoices were attested the value was given in G.B.P. She has submitted that the supplier has also confirmed this fact and has clarified that it was mistake on their part and they had corrected the same under intimation to the Pakistan Mission in Glasgow.

29. She has further submitted that the respondent No.4, framed 8 issues which are as follows:‑‑‑ "(1) Whether the respondents have through alteration of unit of currency from G.B.P. Sterling to US $ in the import invoices have indulged into an act of tampering/forgery of the aforesaid) documents? (2) Whether the alteration of unit of currency from G.B.P. Sterling to US $ in the import invoices constituting an untrue/false statement/document was in the knowledge of the respondent? (3) Whether the respondents duly notified either the Pakistan Mission in Glasgow. Ministry of Commerce, Islamabad or Collectorate of Customs (Preventive) Custom House, Karachi or about the 'alteration of unit of currency from G.B.P. Sterling to US $ in order to establish their so claimed bona fide act? (4) Whether the alteration of unit of currency from G.B.P. Sterling in US$ in the import invoices through tampering/forgery without disclosing it to the concerned Authorities constitute an act of suppression/concealment of the factual position? (5) Whether the attestation of both the said invoices initially declared in G.B.P. Sterling and subsequently altered to US $ mitigate the gravity of the offence of tampering/forgery of the documents which amounts to misdeclaration within the ambit of mischief of section 32(1) of the Customs Act;1969? . (6) Whether the act of forgery/tampering of invoices committed by the respondents through alteration of the unit of currency from G.B.P. Sterling to US $ constitute an act of mispresentation/ misdeclaration within the ambit of mischief of section 32(1) of the Customs Act, 1969 punishable under section 158(1) of clause (14) (ibid)? (7) Whether the respondents can take shelter under the plea of absence of mens rea when the elements of tampering, forgery of the document and suppression/concealment of the same are ipso facto established from the invoices and statements submitted by the respondents themselves? (8) Whether the respondents in terms of section 13(3) of the Customs Act, 1969 have indulged into an infringement/violation of the conditions of the License No. PWL‑3/90 issued to them by the Collectorate of Customs (Preventive) Custom House, Karachi, by importation of goods against tampered/forged invoices and have also violated any of the provisions of the Customs Act, 1969 or Rules framed thereunder?

30. She has submitted that the defendant No. 4. initially gave general finding on issues Nos. 1 to 6 by a consolidated finding. It was held that the invoices initially submitted to Pakistan Mission in Glasgow indicated the units of currency in G.B.P. Sterling and the invoices submitted before Ministry of Commerce, Collectorate of Customs (Preventive) showed the valuation in US $. According to defendant No. 4, it was prima facie established that the plaintiff altered the units of currency from GBP Sterling to US $ with mala fide intentions and has subsequently put up a lame and illogical stand that the perported mistake has been committed by the supplier who himself accepted the same through their certificate dated 13‑5‑2000. The defendant No.4, further came to the conclusion that the alteration of units from G.B.P. currency to US $ in the invoices constitutes untrue/false document/statement which was definitely in the knowledge of 'the plaintiff. The defendant No.4, further observed that, from the record it was nowhere indicated that the act of alteration of currency from G.B.P. currency was ever brought into the knowledge of either Pakistan Consultate Glasgow or Ministry of Commerce or Collectorate of Customs.

31. She has vehemently argued that all these observations have been made without any inquiry from the Pakistan Consulate as the verification letter of the Pakistan Consulate Glasgow is dated 10‑5‑2000 and certificate issued by the supplier is dated 13‑5‑2000 which was produced before the defendant No.4 after issuance of show‑cause noticed, dated 18‑12‑2000. In fact the certificate was produced before the defendant No.4, with the covering letter dated 1‑2‑2001 and thereafter the certificate issued by the supplier was neither sent to the supplier for verification nor any comments were sought in respect thereof from the Pakistan Mission at Glasgow. She has submitted that in the absence of any material to the contrary, plaintiff had established that the alteration in the currency units in the invoices was made by the supplier and there was no tampering on the part of plaintiff as alleged. She has pointed out that the defendant No.4, while giving specific findings on issue No.5, has observed that, the attestation of invoices by the Pakistan Mission in Glasgow has nothing to do with the quantity and values declared. The defendant No.4 has further observed that the values are probed into, price lists and contemporary commercial data procured by the foreign mission in the country of export, if a specific reference/request is made in this behalf by concerned Authorities in Pakistan. She has vehemently argued that the defendant No.4, in his order in original has reiterated time and again that the plaintiff committed act of tampering/forgery with the document with mala fide intention and ulterior motive, but has not stated as to what could be the possible motive for the alteration of units of currency when the imported goods were duty free and the payment of any tax on import of any quantity was not involved. She has further submitted that the defendant No.4, has reproduced subsection (3) of section 13 of the Customs Act, in the order in original which provides that the license granted under section 13 may be cancelled by the Collectorate of Customs for infringement of any condition laid down in the license or for any violation of any of the provisions of this Act or any rules made thereunder. He has thereafter observed that, the plaintiff has altered the units of currency with mala fide intentions which constitutes a violation of the conditions laid down in the license itself and also constitutes misdeclaration in the terms of section 32 of the Customs Act, 1969. The respondent No.4, has concluded that the act of alteration of the units of currency amounts to misdeclaration within the ambit of section 32 of the Customs Act, 1969 and, therefore, entire imported goods were confiscated under section 156(1) clause (14) and a penalty was imposed at 100% of the value of the goods and that for violation of the relevant provisions of the Act and rules, 'the license was cancelled under section 13(3) of the Customs Act, 1969.

32. She has submitted that, it is an admitted fact that the imports made by the plaintiff were duty free and any amount of import was exempt from the payment of custom duty and as such the question of any lost to government revenue/exchequer does not arise. She has further argued that although the defendant No. 4, has not stated in the show -cause notice and in the order in original that with the alleged tampering/forgery of the invoices and the purported under‑valuation, the plaintiff could derive any benefit but an improvement has been made by the learned Advocate for the respondent at the time of arguments that the under invoicing was resorted to, because under the license issued to the plaintiff, he could store the liquor worth Rs.5 million at a time in the Bonded Warehouse and by under invoicing more quantity of liquor was intended to be store in the Bonded Warehouse. She has contended that on 21‑10‑2002 Mr. Mirza Yousuf Baig, Appraising Officer, conceded before the Court that neither any revenue loss has been caused or could be caused by under invoicing nor the liquor has been imported or stored in the Bounded Warehouse in excess of the permissible quantity. Mr. Yousuf Baig, Appraising Officer, further stated in Court that it was not possible to store excess quantity of liquor in the Bonded Warehouse as the entire process is computerized and once the permissible quantity is stored the Computer is automatically blocked. She has further, vehemently contended that it is a case of sheer highhandedness and harassment tainted with arbitrariness and illegality. She has concluded the arguments stating that the respondents have time and. again repeated that the plaintiff changed the units of currency with mala fide intention without specifying the consequences of the alleged tampering and on the contrary the mala fide of the respondents whereby they have ruined the business of plaintiff for a period of over two years is evidence on the record. She has submitted that the conditions precedent for exercise of jurisdiction on the party of respondent is lacking with the result that the issuance of show‑cause notice under section 32 and all subsequent act in pursuance thereof are without jurisdiction and are liable to be quashed as such. She has urged that the entire suit can be disposed of by deciding the preliminary issue holding the acts on the part of respondents as without jurisdiction and nullity in law.

33. On the other hand, Mr. Tariq Ali, learned Federal Counsel, has fully supported the issuance of show‑cause‑notice and the order in original dated 19‑10‑2002. He has submitted that although no revenue loss was involved in this case as any quantity of import of liquor was exempt from payment of custom duty but still no importer can be allowed to commit a forgery by tampering the documents. When asked as to what would be the intention for the commission of alleged tampering/forgery of the invoices he contended that by the process of under invoicing the, plaintiff intended to import liquor in excess of permissible quantity. However, he was not able to deny that no limit was prescribed for importing the liquor without payment of custom duty. However, he contended that a limit of storage of the liquor was provided in the license issued to the plaintiff and at no point of time the plaintiff could store the liquor in excess of Rs.5 millions. Thus, the entire emphasis of the learned Federal Counsel was on a single point that the plaintiff intended to store more quantity of liquor in the Bonded Warehouse than permissible in the license and consequently, it means to forgery/misdeclaration as defined m section 32(1) of the Customs Act, and entails the punishment provided in clause (14) of section 156 of the Customs Act and the cancellation of license under section 13(3) of the Customs Act.

34. I have given very anxious consideration to the contentions raised by the learned Advocates for the parties and the material available on record. I would like to observe that the preliminary issue can be decided on the basis of admitted facts and no evidence is required to be adduced for the purpose of deciding the preliminary issue.

35. From the perusal of show‑cause notice, the order in original consideration of the contention raised by the learned Federal Counsel before this Court, it is admitted fact that the plaintiff has not committed any violation pertaining to the import of the liquor. It is not denied that the plaintiff could import any quantity of liquor and the import permit is ordinarily issued by the defendant No.1, either when the imported goods are on it way or when it is actually imported. The entire case of the respondents hinges on the point that by committing the act of forgery with the change of currency units the plaintiff resorted to under invoicing with the intention to store the excess quantity of liquor than permissible under the license under section 13 of the Customs Act. At the same time, it is undeniable fact that the plaintiff did not store or at any time admitted to store the liquor in the Bonded Warehouse in excess of permissible limits. Mirza Yousuf Baig, the Appraising Officer, has stated to the extent that it is not possible to store liquor in excess of permissible quantity because of the computerized device and mechanism.

36. In order to decide the question of jurisdiction. for issuance of show‑cause‑notice under section 32 of the Customs Act and adjudication in pursuance thereof the first point requiring consideration is; as to when and in what circumstance the law gives, jurisdiction to the, Custom officials. In this regard, I am of the view that if a law prescribes‑certain conditions precedent for exercise of jurisdiction then the existence of F those conditions are sine qua non for acquiring the jurisdiction. If the conditions precedent are missing or lacking, it would be a case of lack of jurisdiction. For example the condition precedent for recording an F.I.R. under section 154, Cr.P.C. by an Officer Incharge of a police station is that, there should be an information relating to the commission of cognizable offence. If an information is given to an Officer Incharge of police station of the commission of an offence which is non‑cognizable it shall be merely entered in the book kept at the police station and the informant shall be referred to the Magistrate. No Police Officer shall investigate a non‑cognizable case without the order of the Magistrate. Likewise, for exercise of jurisdiction under section 32 of the Customs Act several situations have been visualized by the Legislature and the conditions precedent have been prescribed in the law. I, fully agree with C the categories of the cases and the conditions precedent for exercising of jurisdiction under section 32 as explained by the learned counsel for the plaintiff and reproduced in para. 26 of this judgment. For the sake of brevity they are not repeated at this stage. The situations Nos. 2, 3 and 4 are not relevant in the present case as all these three situations pertain to the non‑levy or short‑levy on the. customs duty or erroneous refund which is not involved in this case.

37. Situation No. 1 only is relevant in the present case. It is un deniable fact that no material has been collected by the defendants to establish as to what was the figure of G.B.P. originally shown in the invoices when presented to the Pakistan Consulate at Glasgow for attestation of documents. No exercise has been made to show that with the change of units of currently in the invoices any actual under‑invoicing has been made and consequently the ratio of the Supreme Court judgment in the case of Messrs Eastern Rice Syndicate is fully attracted. In consonance with the law as laid down by the Hon'ble Supreme Court in the above judgment the Department should first make an attempt to furnish evidence that the prevailing price in the country of origin at the time of import was less than declared without which it would be impossible to impute the under invoicing to any one.

38. Secondly, it is admitted position that the imports enjoyed exemption with the result that the finding of Lahore High Court in the case of Lt. & G.M. Ltd. (supra) to the effect that, unless the goods are chargeable to duty and the taxable event occurs under section 18; the question of valuation of goods does not arise" is fully applicable.

39. Thirdly, the ratio of the Supreme Court judgment in the case of Eastern Rice Syndicate (supra) to the effect that the words 'untrue' carries the sense of falsity in the knowledge of person concerned. Thus, upon a point of mere valuation, if a declaration is made by such a person which on inquiry the Customs Authorities find to be too low, that will not be by itself sufficient to prove that the declaration was false to the knowledge of the maker. In this case the additional circumstance is that the plaintiff produced a certificate from the supplier to the effect that the correction in the units of currency was made by them and thereafter the invoices were forwarded to the plaintiff and the said fact was intimated to the Pakistan Consulate at Glasgow. The respondents have not collected any material to rebut this contention as discussed earlier. Thus, the ratio of Hon'ble Supreme Court judgment in the case of Latif Brothers (supra) is attracted wherein it has been held that in case the burden of establishing the misstatement by mustering evidence is not discharged by the Department, the importer cannot be held guilty of making misstatement within the meaning of section 32 read with section 156 of the Customs Act. The ratio of Lahore High Court ,judgment in the case of Ibrahim Industries Ltd. (supra) is also relevant in which it was held that in order to attract the provisions contained in section 32(1) it was necessary to show that the person who made or filed the declaration or furnished documents was cognizant of or had knowledge or apprehension of the facts that whatever declared or stated or, the document filed was incorrect or untrue in some `material f particular' and the non‑fulfilment of these requirements renders notice to be without jurisdiction. This view further gets support from the judgment in the case of Oskui Traders.'(supra), wherein it has been held that, at all such time an exemption S.R.O. or any of its like provisions hold the field, the Customs Authorities have no jurisdiction to scrutinize question of under valuation, calculation of duties and misdescription of goods imported." In this judgment it was further held that , the Customs Authorities were not justified to levy any penalty under section 32(1) when admittedly there was no motive on the part of the petitioner to evade tax due to the exemption in the field. In this judgment it was also I held that no penalty under section 32(1) is leviable for any alleged under valuation and misdiscription where there can be no motive ‑to evade tax and where such declaration would carry no fiscal consequence. It was ,also observed that any other interpretation shall lead to absurd situation where although no tax would be leviable on the main basic assessment nut there could possibly be imposition of penalty. Such exercise was held to be completely without jurisdiction, illegal, void ab initio and of no legal effect.

40. The ratio of judgment in the case of Messrs Kamran Industries (supra) is also fully attracted, the copious excerpts from which have been re‑produced to the earlier part of this judgment.

41. It has already been observed that, admittedly, neither any custom duty was leviable on import of any quantity of liquor as the exemption was available and that the plea raised for the first time before this Court that the under invoicing was resorted to, with the intention to store excess quantity of liquor than permissible under the licence stands belied by the Customs official Mr. Yousuf Baig, Appraising Officer.

42. Lot of stress has been laid by the respondent No.4, in the order in original and by the learned Federal Counsel that, with the change in the units of currency a forgery has been committed. In this regard I am persuaded to agree with the contention of Mrs. Navin Merchant, learned counsel for the plaintiff that the contention is without substance because of the finding contained in para. (v) of the original order which reads as follows:‑‑‑ "It is an admitted position that commercial invoices of foreign supplies are duly certified in the first instance by the respective Chambers of Commerce in respect of the signatures of duly authenticated officials and later attested by respective foreign missions by way of the above referred to requirement in terms of the aforesaid office memorandum, dated 23rd September, 1992. It has got nothing to do with the quantities and values declared. Values are probed into, price lists and contemporary, commercial data procured by the foreign mission in the country of export if a specific reference/request is made in this behalf by concerned Authorities in Pakistan. In this respect enquiries are made from different quarters by the foreign mission through its economic enquiry wing and results intimated accordingly Pakistan Trade Counselors/Commissioners and attaches of the various Consulates posted in various different countries abroad in the past have been very helpful in establishing cases of fraud, under invoicing, under valuation etc. In the background of the above scenario, Vice‑Counsel of Pakistan Consulate in Glasgow attested both sets of the commercial invoices one in G.B.P Sterling and the other in US $ by way of a requirement in terms of the aforesaid office memorandum, dated 23rd September, 1992." Thus, the defendant No.4 has reiterated the same view as contended by the plaintiff as well as contained in the certificate issued by the supplier that the attestation made by the Pakistan Consulate has nothing to do with the valuation of the goods. There is nothing on record to show that any requisition was made by the Customs Authorities in Pakistan to the Pakistan Mission in Glasgow for collecting the necessary data on the point of valuation of the goods imported. Thus, the question of any forgery/tampering as alleged does not arise.

43. Although in section 32(1) the word `forgery' had not been used but in the context of the present case a great emphasis has been laid on the plea that the plaintiff committed forgery. The expression `forgery' and `false statements' are not defined in the Customs Act. These expressions are defined in sections 463 and 464, P.P.C. which reads as follows: "

463. Forgery. ‑‑‑Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." "

464. Making a false document.‑‑‑A person is said to make a false document. First.‑‑‑Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a . document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly.‑‑‑Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.‑‑Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by, reason of deception practiced upon him, he does not know the contents of the document 'or the nature of the alteration.

44. The illustrations given in the Pakistan Penal Code are also very helpful which are reproduced below:‑‑‑ "Illustrations (a) A has a letter of credit upon B for rupees 10,000 written by Z.A. in order to defraud B, adds a cipher to the 10,000 and makes the sum 1,00,000 intending that it may be believed by B that Z so wrote the letter. A has committed forgery. (b) A, without Z's authority affixes R's seal to a document purporting to be a conveyance of an estate from Z to A, with the intention of selling the estate to B and thereby of obtaining from B the purchase money. A has committed forgery. ` (c) A picks up a cheque on a banker signed by B, payable td bearer, but without any sum having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits forgery. (d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the sum payable and authorizes B to fill up the cheque by inserting a sum not exceeding ten thousand rupees for the purpose of making certain payments. B fraudulently fills up the cheque by inserting the sum of twenty thousand rupees. B commits forgery. (e) A. draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had the security of B, and thereby to discount the bill, A is guilty of forgery. (f) Z's will contains these words‑‑‑‑I direct that all my remaining property be equally divided between A, B and C". A dishonestly scratches out B's name, intending that it may be believed that the whose was left to himself and C. A has committed forgery. (g) A endorses a Government promissory note and makes it payable to Z or his order by writing on the bill the words `Pay 'to Z or his order' and signing the endorsement. B dishonestly erases the words `Pay to Z or his order' and thereby converts the special endorsement into a blank endorsement. B commits forgery. (h) A sells and conveys an estate to Z.A afterwards in order to defraud Z of his estate executes a conveyance of the same estate to B, dated six months earlier. than the date of the conveyance to Z, intending it to be believed that he had Conveyed the estate to B before he conveyed it to Z. A has committed forgery. (i) Z dictates his Will to A, A intentionally writes down a different legatee from the legatee named by Z, land by representing to Z that he has prepared the Will according to his instruction, induces Z to signs the Will. A has committed forgery. (j) A writes a letter and sign it with B's name without B's authority, certifying that A is a man of good character and in distressed circumstances from unforeseen misfortune, intending by means of such letter to obtain alms from Z and other person. Here, as A made a false document. in order to induce Z to part with property. A has committed forgery. (k) A without B's authority writes a letter and signs it in B's name certifying to A's name certifying to A's character, intending thereby to obtain employment under Z. A has committed forgery inasmuch as he intended to deceive Z by the forged certificate, and thereby to induce Z to enter into an express or implied contract for services."

45. A perusal of the definition of forgery shows that an intention to cause damage or injury to the public or to any person; or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud is necessary to constitute act of forgery. What amounts to making of false documents is clearly defined in section 464, P.P.C. Now applying the above provisions to the facts of the present case we find that the commercial invoices are issued by the supplier and the plaintiff who is an importer produces certificate from the supplier stating that a. mistake was committed by them in describing the units of currency in the invoices and the said mistake was rectified by them. In these circumstances, it K was incumbent upon the defendants to inquire from the supplier if any such certificate was issued by them or not. In the absence of any , verification the .act of change in the unit of currency cannot be attributed to the plaintiff. Secondly; the necessary ingredient for making of false document is dishonest and fraudulent intention. In the present case, it is admitted position that no incidence of tax was involved, and as such the question of any tax evasion was not involved and further Mr. Yousuf Raig, the Appraising Officer, has clearly stated that neither any excess quantity of liquor was stored in the Bonded Warehouse by the plaintiff nor it was possible to do so. In these circumstances,, the question of making any false document or of any dishonest or fraudulent intention does not arise. The expressions `dishonestly' and `fraudulently' are not defined in the Customs Act and are defined in sections 24 and 25, P.P.C. The expression dishonestly has been defined as follows:‑‑‑ "'Dishonestly'. ‑‑‑Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing `dishonestly'." The expression "fraudulently" has been defined as under:‑‑‑ " 'Fraudulently'. ‑‑‑A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."

46. In the present case it is admitted position that because of the exemption provision in the field there was no question of any wrongful gain to the plaintiff or wrongful loss to the Revenue or any other person. In the facts and circumstances of the case the plea that by resorting to under‑invoicing the plaintiff could store more quantity of liquor in the Bonded Warehouse than permissible under the licence appears to be totally presumptive and far‑fetched. In view of the undeniable fact that no excess quantity of liquor was stored or attempted to be stored by the plaintiff in the Bonded Warehouse, than permissible under the licence, it is held that no infringement of any condition laid down in the licence or violation of any provisions of the Customs Act and Rules made thereunder was committed, with the result that the licence granted to the plaintiff could not be cancelled, and the renewal thereof. could not be refused by resorting to section 13(3) of the Customs Act.

48. Consequent to the above discussion, it is held that the defendants are not able to show that the conditions precedent for issuance of notice under section 32 of the Customs Act and cancellation of licence under section 13(3) were existing. It is, therefore, held that the show‑cause notice issued by the defendants the order in original in pursuance thereof and the imposition of penalty by the defendant No.4 and the cancellation of the licence in favour of the plaintiff are without jurisdiction, void, ab initio and nullity in law.

49. At this stage, I would like to clarify that for the purpose of acquiring jurisdiction as discussed above, the Custom officials are not required to establish beyond reasonable doubt the conditions precedent specified in section 32.‑For the purpose of acquiring jurisdiction a prima facie evidence is required to be shown satisfying the existence of the conditions precedent specified in section 32 and for the purpose of penalties, after acquiring of jurisdiction, the conditions precedent are required to be established beyond reasonable doubt. In the present case, there are no prima facie circumstances, pertaining to the existence of the conditions precedent for acquiring jurisdiction under section 32 and consequently, all the acts in pursuance of the issuance of the show‑cause notice are without jurisdiction.

50. In pursuance of the above finding, it is held that the issuance of show‑cause notice and all subsequent acts in pursuance thereof being without jurisdiction and nullity in law, the plaintiff cannot be asked to have recourse to the forum of appeal provided in the Customs Act. The entire exercise on the part of the defendants in this case being without jurisdiction, the plaintiff has right to invoke the jurisdiction vested in the Civil Court and this Court is fully competent to declare such act as null and void.

51. Consequent to the above findings, the suit is decreed as prayed. The show‑cause notice and the order in original in pursuance thereof made by the defendant No. 4, are hereby declared to be without jurisdiction and void. The defendant No. 3 is directed to renew licence of the plaintiff forthwith. Defendant No.1 is also directed to issue the import permit to the plaintiff immediately. The defendants Nos. 3 and 4 are directed to allow the plaintiff to continue in bond of the goods and not to charge and penal surcharge from the plaintiff for the custody of the goods in the bond. The suit is decreed as above. M.B.A./S‑242/K Order accordingly.