1984 PLP 2192 (CLC)

SAEEDUZZAMAN SIDDIQUI, J. The petitioner has challenged in this Constitutional Petition the order of respondent 4, dated 4th February, 1975 assessing the spindle holders and plastic rings imported by them under Item No. 84.38 (c) of the Customs Tariff for purposes of Customs duty and sales tax. The petitioner was issued import licence bearing No. 430653, dated 7th June, 1974 which was valid upto 6th June, 1975 for import of machinery and mill work, n.o.s. and parts and accessories thereof and maintenance spares all sorts excluding item notified in part 1 of Annexure XIII and of value exceeding Rs. 23,

000. It is an admitted position that the import licence issued to the petitioner covered import of all items mentioned at Serial No. 176 of free list of the Import Policy Order of 1973 which in turn amongst other included the items classified in the I.T.O. Schedule as items Nos. 84 38 IV and V. The petitioner imported spindle-holders which are also known as "Bolster Unit" and plastic rings for spindle valued at Rs. 1,99,912 against the above licence and sub mitted bill of entry for clearance of these goods to Customs Department on 14th November, 1974 when the consignment arrived at the Karachi Port. The goods were first examined by the shed Appraiser of the Customs who was of the view that articles imported by the petitioner fell under item No. 84.38 (D) of Customs Tariff on which Customs duty @ 20% ad valorem is payable and is free of sales tax. However, respondent 4 did not agree with the opinion of shed appraiser and assessed the goods as falling under item No. 84.38 (C) of Customs Tariff and demanded customs duty at the rate of 50% ad valorem plus sales tax thereon. This order of respondent 4 assessing the goods of petitioner under item No. 84.38 (C) of Customs Tariff was passed on 7th February, 1975. The petitioner instead of challenging the above order of respondent in accor dance with the provisions of Sea Customs Act directly filed the above petition which was admitted to regular hearing on 8th May, 1975. At the hearing of this petition the learned counsel for the respondents raised preliminary objection as to the maintainability of this petition on the ground that the petitioner had alternate remedy by way of appeal and revision against the order of respondent 4 which they failed to exhaust before filing the present petition. From the order, dated, 8th May, 1975 it appears that this contention was also raised before the Beach at the time of admission of this petition but in spite of this objection, by the counsel for respondents the Bench admitted this petition to regular hearing. In reply to the preliminary objection raised by the learned counsel for the respondents, the learned counsel for the petitioner sub mitted that no doubt an appeal was competent against the order of res pondent 4 a further remedy by way of revision was also available before respondent 2 but in the present case both these authorities had already determined the issue involved in the case and, therefore, these remedies were only illusory. It is further contended by the learned counsel for the petitioner that the remedy by way of appeal in the present case could not be considered as an efficacious remedy as the petitioners were required to deposit the amount of custom duty demanded by the respondent 4, before his appeal could be considered on merits. The contentions of petitioner's counsel are not without force. In paragraph 8 of the counter-affidavit filed on behalf of respondents 3 and 4 in the above petition on 5th January, 1976 it is stated that the orders for correct assessment in respect of the goods of petitioner were obtained by respondent 4 from respondent 3 before whom the appeal lay from the order of respondent

3. Similarly respondent 2 had issued S.R.O. 502 (2) /73, dated 6th April, 1973 holding that bolster unit fell under heading 84.38 of the First Schedule to the Tariff Act, 1934. In these circumstances it is rightly contended by the learned counsel for petitioner that no useful purpose could be served by filing appeal and revision before respondents 3 and 2 who had already expressed themselves on the issue involved in the case. Mere existence,, of an alternate remedy by way of appeal or revision is no bar to the filing] of petition under Article 199 of the Constitution if such remedy was only illusory in nature. We, therefore, hold that in the circumstances of the present case the existence of alternate remedy by way of appeal and revision was no bar to the filing of the present petition. We accordingly overrule the preliminary objection raised by the learned counsel for the respondents. On merits the learned counsel for the respondents did not seriously dispute the contention of petitioner's counsel. The learned counsel for the petitioner contends that in accordance with the classification given in the Pakistan Customs Tariff, the items imported by the petitioner fell under heading No. 84.38 (D) on which customs duty is leviable 20% ad valorem whereas respondents have assessed these goods as falling under headings 84.38 (C). The case of respondents as disclosed in the counter-affidavit of respondents 3 and 4 filed in the petition is that in accordance with Note 2 appended to section XVI of Pakistan Customs Tariff, a part of the machine is to be classified under the same heading in which the machine is classified. In order to appreciate the stand of respondents in the case it will be advantageous to reproduce here para. 14 of their counter-affidavit which is as follows: 14. (a) The orders are not bad in law. (b) In view of section note 2(b) of section XVI of the Tariff, the parts of a machine are classified under the heading of the machine, as such spindle-holders (bolsters and inserts) are classifiable under 84.38-(C) being the parts of spindles and, have therefore, been correctly assessed to duty and sales-tax at the rate of 50% and 100% respectively under heading 84.38-(C). The whole case, therefore, hinges on a finding whether the "bolster unit" imported by the petitioner is part of "textile Spindle" or not. Textile spindles are classified under heading 84.38 (Cl of Pakistan Customs Tariff and correspond to item No. 326 of the Import Policy Order, 1973 and heading No. 84.38 II of I.T.O. Schedule. It is an admitted position that Import Licence issued to petitioner was valid for import of items men tioned at serial No. 176 Import Policy Order of 1973 which included amongst other items Nos. 84.38 IV and V of I.T.O. Schedule. It is also an admitted position that textile spindles are mentioned at Serial No. 26 of the Import Policy Order, 1973 and the corresponding item for, textile spindle in the I.T.O. Schedule is 84.38 II. It is not denied by the learned counsel for the responents that there is no separate head either in the Pakistan Customs Tariff or in the I.T.O. Schedule which covered spindle-holders (bolster unit). It is accordingly contended by the learned counsel for the petitioner that since the articles imported by the petitioner do not fall under any heading of Pakistan Customs Tariff, therefore, they are covered under the heading 84.38-(D) which deals with "others". Textile spindles are a device used in textile mills for spinning yarn. It is defined in the Encyclopaedia of Textile edited by the Editors of American Fabrics Magazine as follows: Spindle: A long thin rod that is used on certain textile machines for twisting and holding textile fibres in manipulation from silver form to spun yarn. This upright device is found on slabbers, roving frames, jack frames spinning, winding, and twisting machines. Revolving at a very high rate of speed to perform its work, drawing, twisting and winding, the spindle has a bobbin, tuber, or cop set around it so that the finished stock may be wound evenly and easily. The spindle is one of the oldest textile devices known to man. It is driven on machines of today by means of spindle banding which can drive a spindle over 52,000 R.P.M, if needs be." Spindle is defined in the Webster's New World Dictionary, College Edition, as follows: Spindle: A rounded, use wooden rod with tapered ends, used in hand-spinning to twist into thread the fibres drawn from the mass on the distaff, and to wind the thread as it is shunt: the rod or pin on a spinning wheel by which the thread is twisted and on which it is wound: one of the rods of a spinning machine or shuttle holding the bobbins on which the thread is wound as it is spun. Mech. any rod or pin which turns around or on which something turns, as an axle, axis, or shaft; a small axis, arbor, or mandrel; needle-like spike securred on a wider and heavier case. A used to hold bills, notes and other papers: a measure of yarn, con taining 15.120 yards for cotton and 14.400 yards for line, biol the fibrous strand of achromatic material which form in a cell during mitosis; naut, an iron rod or pipe surmounted by a ball, lantern, or similar perceptible object, fixed to a rock or sunken reef to serve as a guide and warning in navigation v.i.-spindled, spindling. To shoot up or grow into a long. slender stalk or stem, as a plant ;.to grow long and slender vit. To form the shape of spindle; to furnish with a spindle; to impale, as papers, on the needle like rod or a spindle." In Macgraw-Hill Dictionary of Scientific and Technical Terms which is an American publication spindle is defined as follows : Spindle : (Cytol) A structure formed of fibre like elements just before metaphase that extends between the poles of the achromatic figure and is attached to the centromatic regions of the chromatic pairs. A short, slender or tapered shaft. A spar serving as a beacon." After reading the above definitions of spindle we are of the view that by no process of reasoning spindle holder (bolster unit) imported by the petitioner could be treated as part of spindles. Spindle holders (bolsters) are used in the machine frame to hold the spindle to prevent it from fall ing and to ease the pressure on it ; but by reason of being used as a support for spindle the bolster would not become the part of spindle itself. We accordingly accept this petition and declare the order, dated 4th February, 1975 passed by respondent 3 assessing the spindle holders and rings under Item No. 84.38 (C) of the Pakistan Customs Tariff asil without any lawful authority. We are, therefore, of the view that spindle-holder (Bolster Units) imported by the petitioner did not fall under heading 84.38 (C) of the Pakistan Customs Tariff and, therefore, the respondents wrongly demanded customs duty from them at 50% ad valorem plus 10%. Since Bolster Units were not specified under any specific heading of Pakistan Customs Tariff it will fall under the heading 84.38 (D) on which Customs duty is payable at 20% ad valorem. However, in the circumstances of the case we will make no order as to costs. M. Y. M. Petition accepted. ***