1990 PLP 868 (CLC)

BATTERIES AND CARTS PART 1I PLATFORMS AND STEPS PART III GROUND RADIO EQUIPMENT PART IV PASSENGER HANDLING EQUIPMENT (1) Passenger Loading Steps, Platforms and parts thereof. (2) Specialised Passenger Weighing Devices and parts thereof. (3) Propeller Guards (Fences). (4) Motorised Passenger Steps and parts thereof. PART V CARGO HANDLING EQUIPMENT PART VI SPECIALISED CATERING EQUIPMENT PART VII ALL REPAIRS AND MAINTENANCE MATERIAL FOR AIRFRAMES PART VIII ALL REPAIRS AND MAINTENANCE MATERIAL FOR INSTRUMENTS PART IX ALL REPAIRS AND MAINTENANCE MATERIAL FOR ENGINE

1. Special Tools. .. .. Learned counsel for the petitioner contends that the list attached with the letter dated 21‑1‑1969 is only an illustrative list of those equipments which could be cleared from the customs without payment of customs duty and sales tax but it is not exhaustive as the Collector of Customs in each case where it is urged before him that a particular item imported falls within the category of ground handling equipment, he has to decide the same by exercising his discretion after taking into consideration all the facts. It is accordingly urged by the learned counsel for the petitioners that the rejection of the plea of the petitioners by the respondents on the sole ground that the Air‑conditioning System imported by it did not fall within the list of the items shown in the list attached with Standing Order No.39/66 as passenger handling equipment was arbitrary. The second contention of the learned counsel for the petitioner is that the consignments under dispute having been cleared from the Customs between the period from 14‑2‑1974 to 31‑7‑1975 the issuance of show‑cause notice on 8‑4‑1976 was wholly without jurisdiction as the notice was clearly time‑barred under section 32 (3) of the Customs Act which prescribed a maximum period of 4 months (at the relevant time) for issuance of such notices. Learned counsel for the respondents, on the other hand, supported the orders of the respondents and contended that as there was no specific mention of the Air‑conditioning System either in the Standing Order 39/66 or in the list attached with the letter dated 24‑1‑1969 it could not be said that the decision taken by the respondents in demanding customs duty on the import of Air‑conditioning System was neither arbitrary nor contrary to the terms of the Standing Order No. 39/66. We do not feel it necessary to decide the first contention of the learned counsel for the petitioner in the above case as in our view this petition can be conveniently disposed of on the basis of the second contention of the learned counsel for the petitioner. The show cause notices were issued to the petitioner on 8‑4‑1976 in the above cases. From the orders of respondents Nos1 to 3 it is quite clear that there was no allegation of any fraud, misrepresentation or false declaration by the petitioner at the time of obtaining of clearance of consignments of Air‑conditioning System from customs without payment of customs duty and sales tax. From the orders passed by respondents Nos. 1 to ,3 in the case it is apparent that it was a case of error or inadvertance on the part of the Customs Authorities in allowing release A of consignments without recovery of customs duty and sales tax on the assumption that Air7conditioning system imported by the petitioner fell within the category of ground handling equipment. The relevant provision of the Customs Act which was applicable in such situation wets section 32 (3) of the Customs Act which reads as follows:‑‑ "Section 32(3).‑‑Where, by reason of any, inadvertence, error or misconstruction, any duty or charge has not been levied or has been short‑levied or leas been erroneously refunded, the person; liable to pay any amount on that account shall be served with a notice \6thin four months of the relevant date requiring him to show cause wily he should not pay the amount specified in the notice." A reading of the above provision .of law will clearly show that tinder subsection (3) ,of ,section 32 where by reason of any inadvertence, error or misconstruction on the part of the Customs Authorities any duty or charge hits not been levied or has been short levied or has been erroneously refunded, a notice may be sent to, the person concerned who. is liable to pay tire amount El calling upon him to show cause why the duly which has not been paid or which has been short paid or, which, has been erroneously refunded should. Not be paid by him. Such notice could be issued by the Customs Authorities within four months of the `relevant date' (this period of four months has now been extended to six months by Finance Ordinance of 1982). The 'relevant date' is defined in sub4pction (5) of section 32 ibis and in the present case it is the dale of clearance of the goods from the customs., We have already mentioned above the ,dates of clearance of the above consignments from the customs. It is quite clear that the notice dated 8‑4‑1976 issued to petitioner in the above cases, were much after expiry of four months period prescribed under subsection (3) of section 32 of the Act. Learned counsel for the respondents is unable to advance any argument in support of the validity of' the show‑cause notice issued by the respondent No.3 to the petitioner. As the notices issued by respondent No.3 to the petitioner were beyond time all orders passed by respondents on the basis of these notices were void. We accordingly accept the above petitions and declare the order, passed by respondents Nos. 1 to 3 as without lawful authority and of no legal effect. There will be no order as to costs. Mr. S.A. Sarwana, learned counsel for the petitioners prayed that tile bank guarantce furnished by the petitioner in the above cases may be However, in order to enable the respondents if they so desired to File an appeal against the above order before Supreme Court we direct that the bank guarantee furnished by the petitioner shall stand discharged after two months from today. M.Y.H/P‑120/K Petition allowed.