1988 PLP 95 (MLD)

AJMAL MIAN, J.‑‑The petitioner through this petition has prayed for the following relief:‑ "It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to call for the records of the respondents and after giving the hearing to the parties may be pleased to declare and direct: (1) That the regulatory duty levied on the petitioner's consignments on the basis of the purported notification dated 21‑8‑1975 is without lawful authority and of no legal effect and that the petitioner is entitled to the refund of the sum of Rs. 4,28,516 which sum has been excessively levied and realised by the respondent No. 1 on the basis of the purported notification dated 21‑8‑1975. (2) To grant cost of the petition to petitioner. (3) To grant such other/further/additional relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the petition."

2. The brief facts leading to the filing of the above petition are that the petitioner had imported iron and steel re‑rollable scrap consisting of mild steel billets ends through two vessels, namely, "Arab Al‑Hijaz" and "Sea Success" which arrived on 1‑9‑1975 and 6‑10‑1975 respectively. The petitioner in respect of the first consignment filed bill of entry on 3‑9‑1975 whereas the Master of the vessel filed IGM on 1‑9‑1975 whereas the petitioner filed bill of entry in respect of the second consignment on 15‑10‑1975 but the Master of the vessel filed IGM on 31 10‑1975. It seems that by Finance Act, 1975, duty on the subject‑matter of the consignment was increased from 37 1/2 to 62 1/2. The respondent to have recovered the duty at the above rate of 62 1/2 ad valorem which the petitioner had paid under protest. The petitioner being aggrieved by the above recovery have filed the present petition.

3. It may be observed that section 30 of the Customs Act, 1969 deals with the question of rate of customs duty recoverable on an imported consignment. The proviso to the above section provides that if a bill of entry had been filed in advance of the arrival of the conveyance, by which the goods have been imported, the relevant date for the purpose of the above section shall be the date on which the manifest of conveyance is delivered by the Master of the vessel. It may further be observed that subsection (2) of section 79 of the Customs Act provides that a bill of entry under subsection (1) may be presented at any time lifter the delivery of the manifest. It further provides that the appropriate officer may in any special circumstances permit a bill of entry to be presented before the delivery of the manifest. In the present case, according to the petitioner; the bill of entry was presented on 15‑10‑1975 though the Master of the vessel had delivered the manifest admittedly on 31‑10‑1975 in respect of the second consignment. We have inquired from Syed Mamnoon Hasan, learned counsel for the petitioner whether any special permission in terms of proviso to sub‑section (2) of section 79 was obtained, his reply was that the acceptance of the bill entry by the Customs authorities on 15‑10‑1975 in respect of the above second consignment implies the granting of the requisite permission. We are unable to accept this contention. It may be pointed out t1at the petitioner had not pleaded in the petition that they had light special permission of the appropriate officer in terms of proviso to subsection (2) of section

79. We may also observe that for the purposes of Customs Act, the vessel is deemed to have arrived in terms of section 43 of the Act within 24 hours prior. to the filing of the manifest by the Master of the vessel, unless it is shown that the delay is delivering the manifest cannot be accounted for reasonably. 3‑A. In the instant case the increased rate of duty was notified through a Notification dated 21‑8‑1975 but the above Notification was available for sale after its publication on 16‑10‑1975. Reference may be made in this regard to the case of Nawab Bros v. Collector of Customs, Karachi, reported in PLD 1977 Karachi 947, particularly to para. 14(3) of the judgment at page

953. However, it was contended by Mr. Syed Mamnoon Hasan, Advocate that according to Annexure "M" to the petition, which is a letter issued by the Manager of Publication, Government of Pakistan, Central Publication, Karachi, this Notification was not published even upto November, 1975. We are not inclined to rely upon the above‑letter, as it has been issued by the Manager of Publication at Karachi who had nothing to do with the publication of the above Notification. In the above para. 14(3) of the above reported judgment, reference to the affidavit of Mr.Fahimuddin Ahmad, Manager, Printing Corporation of Pakistan Press, Islamabad had been made, in which he had given the date of publication as 17‑9‑1975 and the date of delivery of the above Gazette to the Stationery. Offices for sale as 16‑10‑1975. In this view of the matter the petitioner was liable to pay duty in respect of the first consignment at the rate of 37 1/2, whereas in respect of the second consignment at the rate 621/2% as the date of delivery of manifest by the Master of the vessel (which brought the second consignment), as observed hereinabove, was 31st October, 1975, i.e., after the enforcement of the above increased rate of duty.

4. We would, therefore, allow the petition partly to the extent of declaring that the petitioner was liable to pay duty at the rate of 371/2% in respect of the consignment arrived through vessel "Arab AI‑Hijaz". The respondents are directed to refund the excess amount if already received in respect of the above consignment. As regards the second consignment, the duty recovered by the respondent is in accordance with law. There will be no order as to costs. M.Y.H/2579/K Order accordingly.