P L D 1971 Karachi 911 (PLP)

"Vegetable saps and extracts, pectic substances, pectinates and pectates ; agaragar and other mucilages and thicknors, derived from vegetable products." Here item 14/5 may also be noted. It reads as follows :‑ "Vegetable products, not elsewhere specified or included. (i) Tendu leaves (Biri leaves). (ii) Betel nuts. (iii) Others. The plaintiffs' however, placed reliance on the Pakistan Customs Tariff (1st July 1968 to 30th June 1969), which contains classi fication of goods for tariff and custom purposes. Now, Item 9/5 of the I. T. C. Schedule is shown in the Schedule to correspond to item 09.09 of the Pakistan Customs Tariff, which latter item reads as follows :‑ "Seeds of anise, badian, fennel, coriander, cumin, carway and juniper. 99 Item 12/7 of the I. T. C. Schedule is shown therein to correspond to item 12.07 of the Pakistan Customs Tariff, which reads as follows :‑ "Plants and parts (including seeds and fruit) of trees, bushes, shrub3 or other plants, being goods of a kind used primarily in perfumery, in pharmacy, or for insecticidal, fungicidal or similar purposes, fresh or dried, whole, "cut, crushed, ground or powdered. "A. Goods of a kind used primarily in perfumery. B. Cinchonsbark. C. Betel Nuts. D. Other." Item 13/3 in the I. T. C. Schedule is shown therein to correspond to Item 13.03, which reads as follows : "Vegetable saps and extracts ; pectio substances, pectinates and pectates agar‑agar and other mucilages and thickners, derived from vegetable products. A. Opium. B. Other." C. Betel Nuts. D. Other." Item 13/3 in the I. T. C. Schedule is shown therein to correspond to Item 13.03, which reads as follows :‑ "Vegetable saps and extracts ; pectio substances, pectinates and pectates agar‑agar and other mucilages and thickners, derived from vegetable products. A. Opium. B. Other." Item 14/5 of the I. T. C. Schedule is shown therein to correspond to item 14.05 of the Pakistan Customs Tariff and is in following terms :‑ "Vegetable products not elsewhere specified or included. A. Tendu leaves (Biri leaves). B. Other. The plaintiffs' argument is that the import of betel nuts is covered by Item 12.07 of the Customs Tariff, the goods whereunder are described as plants and parts of trees, bushes, shrubs and other plants, being goods of a kind used in perfumery, pharmacy and for insecticidal and other like purposes and include betel nuts. The plaintiffs' contention is that this item expressly includes betel nuts and, further, that the item relates to plants and part of trees etc. used in perfumery or pharmacy or such like purposes, and that betel nuts are in fact important ingredients in the preparation of several medicines accepted in all the recognized pharmacologies. Their further argument is that even if Item 12.07 of the Pakistan Customs Tariff was not applicable, then, the import of betel nuts was covered by Item 14.05, which relates to vegetable products not elsewhere specified or included in the Pakistan Customs Tariff. But the plaintiffs overlook the obvious fact that the classification of goods in the Pakistan Customs Tariff is for purposes of levy of Customs duty. On the other hand, classification of goods in the I. T. C. Schedule is for purposes of imports of these goods. The import licenses, according to the plaintiffs' own admission made at the Bar, relate to Items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule. But none of these items, according to the classification given in the I. T. C. Schedule, cover betel nuts. In the I. T. C. Schedule, betel nuts are expressly covered by Item No. 14/5 (ii) and, for purposes of levy of customs duty, this item is made to correspond to Item No. 14.05 of the Pakistan Customs Tarrif which has been reproduced above. It is correct that fn the Customs Tariff, Item No. 12.07 includes betel nuts, but then the Customs Tariff was prepared first and came into force before the revision of the I. T. C. Schedule. No doubt this revision was carried out to bring the I. T. C. Schedule in line with the classification of goods under the Pakistan Customs Tariff. But it appears that in doing so, the draftsman committed an obvious mistake in failing to note that Item No. 12.07 in the Customs Tariff makes an express mention of betel nuts. But no serious notice of this error can be taken, as in the revised I. T. C. Schedule the import of betel nuts is permitted only under Item No. 14/5, which item is made C to correspond to Item No. 14/05 in the Customs Tariff. For purposes of imports recourse has to be made to the I. T. C. Schedule, and not the Customs Tariff, which merely prescribes that duties leviable on goods imported under the Import Policy orders in force from time to time in accordance with the classi fications contained in the I. T. C. Schedule. It was contended that the presence of betel nuts in Item 12.07 of the Customs Tariff created a confusion in the trade, and therefore the plaintiffs should not be treated as having wilfully acted in breach of the Import Policy orders, and accordingly the plaintiffs' imports should not have been made subject to orders of confisca tion and imposition of personal penalties. But in my opinion this confusion is self‑created confusion. The plaintiffs are presumed to be familiar with the contents of the I. T. C. Schedule, which expressly provides for import of betel nuts under Item 14/5. It was not open to the plaintiffs to take advantage of the error made, when I. T. C. Schedule was being revised, in making Item 12/7 of the Schedule to correspond to Item 12.07 of the Customs Tariff which latter item makes an express mention of betel nuts. It cannot be said that the plaintiffs did not know that for the purposes of import of betel nuts, it is the Import Policy Orders and the I. T. C. Schedule which have to be referred to and that the Customs Tariff in this respect is irrelevant, as its purpose is only to provide for levy of duties on goods validly imported in the country. Now, the import licences in question o describe the goods to be imported by reference to the classifica‑1 tions contained in the I. T. C. Schedule, that is, Items 9/5, 12/71 and 13/3 (it) of the Schedule. Of necessity it has to be held, that betel nuts are not covered by these licenses, as this com modity is expressly mentioned under Item 14/5 of the Schedule. It is possible to take the view that but for Item 14/5 of the I. T. C. Schedule Items 9/5, 12/7 and 13/3 (ff) would .include betel nuts in the generic sense. But as betel nuts are specifically mentioned under Item 14/5, the first three Items of the I. T. C. Schedule, being in general terms, exclude the goods specifically mentioned under the subsequent item, that is, Item 14/5. Another point to be taken note of is that the import licenses in question were issued for the period July to December 1969, and the imports for this period were regulated by the Import policy (July‑December 1969) Order issued on 30th June 1969, and published in the Gazette of Pakistan, Extraordinary, dated 2nd July 1969. According to paragraph 5 of this Order, item not included in the Free list, licensable list, Cash‑cum‑Bonus list or in the list of items importable under the export Bonus Scheme shall be treated as ineligible for import unless specifically authorised. Schedule I to this Order contains items of free list. Schedule 11 to this Order contains the licensable list, item 7 whereof reads in this way: "Medicinal herbs and crude drugs (excluding items 9/5, 12/7, detailed in Annex. XI). 13/2 (ii)." These classification numbers are taken, as the licensable list itself shows from the revised I. T. C. Schedule which has been referred to above. Obviously, these classfications do not cover the betel nuts. Annex. XI to this list also makes no reference to the betel nuts. Simultaneously with the above Import Policy Order, the Government of Pakistan published a new schedule for the import of goods under the Export Bouns Scheme, which Schedule was published in the Gazette of Pakistan, Extraordinary dated 2nd July 1969, and replaced public notice No. 2 (1) 67‑FP dated 20th July 1967. Item 49 of this new Schedule refers to medicinal herbs and crude, drugs, and again these goods are made referable to classification numbers as given in the I. T. C. Schedule, namely, Items 9/5, 12/7 and 13/3 (ii). Therefore, the Export Bonus Scheme also adopts the classification numbers of the I. T. C. Schedule and, as noted above, Items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule do not at all relate to the betel nuts, which have been separately provided for under Item No. 14/6. It is thus clear that import of betel nuts was not at all covered by the schedule of importable goods under the Export Bonus Scheme, nor were the imports of these goods covered by the Free List, Licensable iist or the Cash‑cum Bonus List. As noted above, paragraph 5 of the Import Policy (July‑December 1969) Order expressly provides that items not included in the Free list, Licensable List, Cash‑cum‑Bonus list or in the list of items importable under the Export Bonus Scheme shall be treated as ineligible for import unless specifically authorised. Therefore, as far as the plaintiffs are concerned, they could not import betel nuts under any of these lists nor even under the import licenses they obtained, which expressly referred to Items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule, which items do not cover betel nuts at all. As a matter of fact, import of betel nuts is covered by paragraph 11 of the Import Policy (July‑‑December 1969) Order, which gives the list of goods importable exclusively through the Trading Corporation of Pakistan Limited and betel nuts is one of these items. Thus betel nuts, for the period in question, were importable only through the Trading Corporation of Pakistan Limited under paragraph 11 of the said Import Policy Order. The conclusion from this discussion is that the import licenses obtained by the plaintiffs under the Export Bonus Scheme did not at all relate to or cover betel nuts. They related to medicinal herbs anal crude drugs or such items of goods as are mentioned under classifications Nos. 9/5, 12/7 and 13/3 (fI), excluding betel nuts which are specifically classified under Item No. 14/5 of the I. T. C. Schedule. Mr. Naseem Farooqi took his stand on notification dated 8th September 1960 issued by the Chief Controller of Imports and Exports and published in the Gazette of Pakistan, Extraordinary, dated 9th September 1960, which noti fication stated that the imports under the Export Bonus Scheme did not coma under any restrictions imposed on commercial and industrial licenses except for such restrictions as are specifically made applicable to Bonus Licenses. But this notification stood superseded by the Import Policy (July‑December 1969) Order and the new Schedule for the import of goods under the Export Bonus Scheme published in the Gazette of Pakistan, Extraordinary, dated 2nd July 1969. The Import Policy Order and this new Schedule Impose specific restrictions on import of betel nuts except through the Trading Corporation of Pakistan Limited, which restrictions of necessity excluded import of this commodity under Bonus Licenses. Even if it be held that the notification of 9th September 1960, still stands (which view may be possible), according to this notification itself imports under the Licenses were free from restrictions unless any restrictions specifically made applicable to such licenses. Such restric t in fact, came into force through the Import Policy enforced Government of Pakistan, for the period July‑December Mr. Naseem Farooqi then contended that the practice of the Customs Authorities had been to release betel nuts by imposing only penalties, and that before these cases, no orders of confiscation of such goods were made by the Collector of Customs. It may be so. But then it would appear that the traders took rather undue advantage of this practice and started imports of betel nuts on very wide scale in complete disregard of the Import Policy Orders and Government notifications in this behalf. In view of such wide spread violations, a point had to be reached when only deterrent penalties could dissuade the traders from acting in breach of the Government's import policies. Perhaps, such stage was reached by the time the present plaintiffs imported betel nuts in complete disregard of the terms of the import licenses granted to them and of the Import Policy Orders and Government's notifications. Thus the clear legal position is that the imports by the plaintiffs of betel nuts under the import licenses in questions were invalid and in violation of the Import Policy and the Government's notifications in this behalf. But Mr. Naseem Farooqi further contended that should not take this view, as for the subsequent import period the Government issued an express public notice to the effect that import of betel nuts was not covered by Item 12/7 of the I. T. C. Schedule. According to Mr. Naseem Farooqi this action of the Government would lead support to the plaintiffs' case that there was real and substantial confusion and that the import of betel nuts could not, therefore, be treated as prohibited except under Item 14/5 of the I. T. C. Schedule. But this public notice or clarification of the Government is of no consequence. It was issued, perhaps, "ex majori cautela" and should be treated in the nature of a warning rather than a clarification of the import policy. These being the conclusions, the plaintiffs' grievance against detention of these goods, and even against the orders of confiscation and imposition of personal penalties subsequently made by the Collector of Customs (on which orders the plaints are silent), is ill‑conceived and cannot be entertained. Accordingly, Issue No. 3 is decided against the plaintiffs.

6. The last issue is Issue No. 6, which is with regard to the relief available to the plaintiffs. Since I have held above that the plaintiffs could not import betel nuts under the import licenses held by them, no question of grant of any relief arises in those suits. There is no substance in the contentions of the plaintiffs. The Suits accordingly fail and are dismissed with costs. K.B. A. Suits dismissed.