P L D 1963 (W (PLP)

Khalid M. Ishaq A. A. G. (Muzaffar Hussain with him) for Respondents. Date of hearing : 30th August 19

62. S. A. MAHMUD, J.‑This writ petition by Messrs Capco Aziz Ltd., having its Head Office at Chittagong and a Branch Office at Karachi, under Article 2 (4) of the Laws (Continuance in Force) Order 1958 (I of 1958), challenges the order of the Collector of Customs, Chittagong, dated the 14th of March 1959 and the orders passed on appeal and revision, on the ground of violation of principles of natural justice.

2. Briefly, the facts are that the petitioner company was granted an import licence on the 23rd of May 1957, against which the company imported several varieties of dyes from Messrs Chemipex G. M. B. H. Frankfurt in West Germany. The Company received invoice dated the 25th July 1957. When the goods arrived at Chittagong per ss Argenfels, the petitioners filed, in the ordinary course, a bill of entry showing the value of the goods, and described all the goods an mentioned in the invoice. The Assistant Collector of Customs, Chittagong accepted the petitioner's declaration in respect of six out of eight items, but did not accept the declaration in respect of items shown at Nos. 3 and 4 in the bill of entry. These items were 3 000 Ibs. Hydron Blue RB Powder M/Cone. and 150 Ibs. Immedial Fast. Brilliant Green 10 GL. The petitioner requested the Customs Authorities to release the goods under section 87‑A of the Sea Customs Act, and the Collector of Customs agreed on the condition that the petitioner gives an undertaking to pay the duty leviable on the goods. The said undertaking was given, and the ‑goods were delivered to the petitioner. On the 16th of January, 1959, the Customs Authorities at Chittagong issued a notice to the petitioner that, as it was discovered on chemical analysis that the goods of iieins 3 and 4 in the bill, of entry were Coal Tar Dyes falling under group Vats‑other‑sorts‑Powder ,assessable at 12% on a Tariff value of Rs. 40 per E. B., and were thus misde clared, with the result that Government revenue had been adversely affected to the extent of Rs. 12,168 as Customs duty and Rs. 11,357 as sales‑tax; the petitioner should pay these sums immediately, arid also show cause why penal action under section 167 (9‑B) of the Sea Customs Act be not taken against the Company for the misdeclaration. The company should also state whether the company wished to be heard in person or through a Pleader. The explanation should reach the Customs Office within seven days. On the 21st of January 1959, the petitioner replied to the show‑cause notice denying that there was a misdeclaration, and requested for re‑appraisal of the duty and sales‑tax. The petitioner also requested the Collector of Customs to afford the company an opportunity to put up its case before him personally. On 31st January 1958 the Assistant Collector of Customs asked the petitioner under section 39 of the Sea Customs Act to pay the deficiency of Rs. 6000 as Customs Duty and Rs. 1,000 as sales‑tax within 15 days and added that if the company wanted to make a representation, it should be filed within this time. The petitioner replied denying that the duty had been short‑levied and reiterated that it had been correctly levied according to the latest customs tariff. Without hearing the petitioner, and without affording the Company an opportunity to rebut the so‑called analysis carried out behind its back, or furnishing the company with its copy, the Collector of Customs passed an order on 14‑3‑1959 that the reply to the show‑cause notice was not satisfactory, and proceeded to impose a personal penalty of Rs. 36,000 on the petitioner under section 167 (9‑B) of the Sea Customs Act. The petitioner made an application to the Collector of Customs on the 18th of April 1959 for reviewing his order, and wrote to him on the 8th of May 1959 and again on the 19th of May 1959, requesting him to supply the petitioner with a copy of the test report so as to enable it to file an appeal before the Central Board of Revenue. This test report was not supplied to it until January 1960. In the meantime, the petitioner filed an appeal before the Central Board of Revenue on the 5th of July 1959, which was not entertained on the ground that it was time‑barred. The petitioners then moved the Government of Pakistan in revision on the 25th of July 1959. The revision was also dismissed by the Government of Pakistan in the Ministry of Finance (Revenue Division) by order dated the 18th of November 1959 on `the ground that the order of the Collector was correct in law and on facts, and the Government saw no reason to interfere. The petitioner was not heard either in appeal or revision. The petitioner then moved this Court in writ jurisdiction, as stated above under Clause 2(4) of the Laws (Continuance in Force) Order 1958.

3. The short question which falls for determination in this case is whether the order of the Collector of Customs dated the 14th of March 1959 is not vitiated by the fact that the petitioner company were not given a personal hearing, when it had requested for it and that the Collector acted on the report of an analysis which was carried out behind' its back and of which a copy was not given to petitioner and no 'opportunity was afforded to the petitioner to rebut it. Learned counsel for the petitioners relies on the cases The Federation of Pakistan v. Sardar Ali (P L D 1959 S C 25) and Messrs Farid Sons Ltd., Karachi and another v. The Government of Pakistan and another (P L D 1961 S C 537). In the first case on the day on which section 177‑A of the Sea Customs Act was enacted a considerable quantity of foreign‑mach Art Silk piece goods were seized from the godowns of Sardar Ali, who was called upon to show cause why action be not taken against him under the section and to put in a reply within 7 days. Sardar Ali raised the defence that he had acquired the goods locally from persons named. An Intelligence Officer of the Customs Department held a secret enquiry and recorded evidence of witnesses behind the back of Sardar Ali, who had no opportunity to cross‑examine them. His report was sent to the Collector of Customs who held that Sardar Ali had failed to prove that the goods were lawfully imported. The learned Judges of the Supreme Court held that to view of the new law placing a definite onus on the possessor of the relevant type of goods, such a person was clearly entitled to an opportunity of not only being heard, but of adducing evidence, if necessary, to discharge that onus, but this opportunity had been denied to him. An ex parte enquiry was held to test whether the defence taken was correct and witnesses were examined whom Sardar Ali had no opportunity to cross‑examine and copies of their statements were not supplied to him. The learned Judge observed that they were not a little disturbed that prejudicial action could be taken by the Customs Officers in a matter touching valuable rights to property as well as the personal liberty of a subject on the basis of a private enquiry in which the person concerned was not allowed to participate and was not given a right of audience or the right to establish his defence by evidence. The failure of the Collector to follow the correct procedure envisaged by the amended law vitiated the order. It was also held that the word "appeal" implied a right of audience, and the Central Board of Revenue, in not hearing the appellant, had failed to discharge its statutory duty in deciding the appeal without hearing the appellant. The observations of the learned Judges of the Supreme Court in these cases help the petitioner, because as is contended, the so‑called chemical analysis was held behind its back, its copy was not furnished and no oppor tunity was afforded to the petitioner to offer objections, or to show that the so‑called test was not reliable. There has been a clear violation of principles of natural justice which violates the Collector's order. It is urged on behalf of the petitioner that the bill of entry having been supported by the invoice, there was no occasion for the Collector to come to the conclusion that the particulars given in the bill of entry were incorrect, and amounted to a mis-description of the goods. Learned counsel for the respondent has on the other hand relied on Muhammad Ishaq v. Dr. Saiduddin Swaleh (P L D 1959 Kar. 669) which holds that where a party was not given an opportunity to show cause, and so was not heard by the Court of first instance, before passing an adverse order, no notice being required by statute, but the party was heard by the appellate or revisional authorities, the question whether the order should be set aside as void on the ground that it was passed without an opportunity or show‑cause notice being granted, depended upon whether there was failure of natural justice. If the statutory provision for notice be mandatory, the order without notice may be wholly void, but if it be directory, the Court may still presume prejudice from want of notice till the contrary is shown. In cases where only the violation of a principle of natural justice is pleaded, the Court may call upon the party to prove prejudice before it sets aside the order. The case is clearly distinguishable from the present case because the petitioner company was not heard at any stage. The petitioner company was not even heard in appeal or revision.

4. As observed by the learned Judges of the Supreme Court an appeal implies in itself a right of evidence and the right of appeal given by section 188 of the Act to a person is illusory if it could be disposed of without hearing the appellant. It has been urged before us that as the appeal was time‑barred, the Central Board of Revenue was justified in dismissing it without hearing the appellant but it cannot be ignored that the appellant had requested the Collector to review his order and had also asked for a copy of the report which was not supplied. If the appellant was heard or if the objection as to limitation had been pointed out to him he may have satisfied the Central Board of Revenue that there was good case for condonation of the delay.

5. As we find that the petitioner has been condemned unheard by relying on material collected ex parte which was used to the detriment of the petitioner without giving him its copy or affording it an opportunity to meet it, we accept the petition and set aside the order of the Collector and the appellate and revisional orders, in exercise of our writ jurisdiction. We direct that the Collector shall re‑decide the matter after hearing the . petitioner and giving the company a copy of the report of the chemical analysis and opportunity to contest it.

6. We leave the parties to bear their own costs of this petition. K. B. A. Petition accepted.