P L D 1988 KARACHI 99 (PLP)

AJMAL MIAN, J.‑‑By this common judgment, we intend to dispose of the above nine Constitutional Petitions. Constitutional Petition No.D‑1550/1987 was fixed for Katcha Peshi, whereas the other remaining eight petitions were fixed for regular hearing. Since the legal point involved was the same, we have heard the same together.

2. In all the petitions the petitioners have imported automobile spare parts. Upon the arrival of the consignments from the country of origin at the port of Karachi, as ususl they filed bills of entries with the customs authorities. It is the grievance of the petitioners that the customs authorities instead of assessing the custom in terms of section 35 read with section 30 of the Customs Act, 1969, hereinafter referred to as the Act, on the basis of the normal price, have assessed the same on the basis of the prices notified under Customs General Order No.5 of 1985 hereinafter referred to as CGO

5. They have, therefore, impugned the vires of the CGO 5 in the above petitions.

3. Mr. Zamir Ahmad, learned counsel for the petitioner, who has appeared in Constitutional Petition No. D‑1550/1987 has submitted that factually CGO 1/81 which provided the guideline for assessing the normal price inter alia of the imported goods is still in the field which has been ignored. It has been further urged by him that the assessment on the basis of the GGO 5 is not legal. Mr. Muzaffarul Haq, who has appeared for the petitioners in Constitutional Petitions Nos‑D‑723/87, D‑725/1987, D‑898/1987, D‑899/1987 and D‑647/1987 has submitted as under: (i) That CGO 5 is ultra vires the powers of Central Board of Revenue, hereinafter referred to as the CBR. (ii) That CGO 5 violates the principles of natural justice. (iii) That assessment of customs duty on the basis of CGO 5 is in violation of the provisions of section 25 read with section 30 of the Act. (iv) That respondents in fact in disguise of CGO 5 have imposed tax, which power vests under Article 77 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, in the Parliament. Mr. Khalid M. Ishaque, learned counsel, who has appeared for petitions in Constitutional Petitions Nos. D‑195 of 1987, D‑196 of 1987 and D‑1324 of 1987 has reiterated the above submissions of Mr , Muzaffarul Haq and has further submitted that in fact CGO 5 has been framed for extraneous considerations. Mr. Qadir Sayeed, learned Standing Counsel appearing in four of the above Constitutional Petitions, namely, C.P Nos. D‑195/87, 196/87, 647/1987 and 1324/1987 has urged as under: (i) That CGO 5 which has been now replaced by CGO 10/87, hereinafter referred to as CGO 10, was framed in order to perpetuate Section 25 and not to violate the same. (ii) That CGO 5 or CGO 10 was framed in order to rationalise the assessment of the normal price in order to eliminate corruption and malpractices on the part of some of the unscrupulous importers and customs personnel. (iii) That under the Act the customs authorities are entitled to assess the normal price which is a disputed question of fact and which cannot be determined in a Constitutional Petition. Mr. Abul Khair Ansari, learned counsel who has appeared for the respondents in Constitutional Petitions Nos.D‑898 and 899 of 1987, in addition to the adopting of the arguments of the learned Standing Counsel, has pointed out that under Section 193 of the Act the petitioners had alternate remedy, and therefore, the petitions are not competent, and that in any case what should be the normal price, is a disputed question of fact. Mr. S.M. Noorul Hassan, learned counsel who has appeared for respondents in Constitutional Petitions Nos. D‑723 of 1987 and 725 of 1987, has contended as follows: (i) That the petitions are pre‑mature. (ii) That the petitions involve questions of facts. (iii) That CGO 5 and CGO 10 were not ultra vires but were framed to suppress mischief, the evasion of customs duty. (iv) That the burden of proof as to the normal price is irrelevant.

4. At the outset, it may be pointed out that under Section 223 of the Act it has been provided that all officers of customs and other persons employed in the execution of the Act shall observe and follow the orders, instructions and directions of the CBR, but it has also been provided in the proviso that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officers of customs in exercise of their quasi‑judicial function. It seems that the CBR has been issuing CGOs from time to time containing various directions, instructions, inter alia to the customs department in order to ensure the effective implementation of the provisions of the Act. In the instant case CGOs in relation to the assessment of normal price had been issued in the past. As pointed out Mr. Zamir Ahmad in his above petition has referred to CGO 1/81 dated 16‑2‑1981 containing instructions as to the determination of the value of goods for the purpose of customs duty in terms of Sections 25 and 30 of the Act. In fact his submission was that the above CGO 1/81 still holds the field. It further appears that CGO 5 w as issued on 23‑5‑1985. It may be advantageous to reproduce paras 1 to 4 of the above CGO, without the table, which read as follows: CUSTOMS GENERAL ORDER NO. 5 of 1985 Subject:‑ VALUATION OF AUTO‑PARTS It has been observed that the valuation of auto‑parts causes lot of problems for the customs and importers at the time of assessment to duty and taxes. There are large number of variables depending upon the make, model, year of manufacture of vehicle, which determine their values. The auto‑parts are further classified as genuine, manufactured under licence or non‑genuine. Taking undue advantage of the aforesaid variables, some unscrupulous importers misdeclare the description/quality/specifications and value of ' auto‑parts and cause major losses to the national exchequer.

2. Apart from loss to the national exchequer, under invoiced imports of auto‑parts pose a serious threat to the local industries which are exposed to unfair competition at this stage of development when the engineering industry in Pakistan is in the infancy.

3. A detailed study on the subject has been carried out in the Central Board of Revenue which has revealed that in many cases there are abnormal differences in the C & F values of genuine parts as declared by the authorised dealers vis- -vis the C & F values of non‑genuine replacement parts which are imported by some unscrupulous importers.

4. The Central Board of Revenue has, therefore, decide that in future the C & F values of auto‑parts shall be determined on the following basis: ‑ (i) the values of genuine auto‑parts shall be notified by the Central Board of Revenue, Collector of Customs (Appraising), Customs House, Karachi or any other subordinate officer designated by C.B.R. for this purpose, from time to time. The values of certain genuine auto‑parts are indicated in the table below for the guidance of all concerned; (ii) the value of non‑genuine parts shall be assessed as per declared value or after allowing a maximum of 20% reduction in, the prices of genuine parts, whichever is higher. (iii) in case there is a value available for an auto‑part of a vehicle, or any specific make or model, the value of similar part of other vehicles of different models and makes shall be appraised at par with the available values, keeping in view the following: ‑ (a) the value of any genuine auto‑part of a vehicle of any model or make upto 1000 CC shall be applicable to auto‑parts of all vehicles of other makes and models up to 1000 CC or less. The value of non‑genuine parts of any vehicle in this range shall be assessed as indicated in (ii) above; (b) and Similarly the value notified for genuine auto‑parts of a vehicle of any specific model or make of over 1000 CC upto 1300 CC, over 1300 CC upto 1600 CC, over 1600 CC upto 2000 CC and over 2000 CC shall apply to all vehicles of other makes and models in the range mentioned above. The non‑genuine parts in this range shall also be assessed as indicated in (ii) above. (c) the above provisions willikewise apply to trucks, buses, two wheelers, vans ,tractors, pick‑ups etc. in the same manner as indicated in (a) and (b) above except for two wheelers where the range of sizes will be as under: ‑ (i) upto 50 CC (ii) Over 50 CC upto 100 CC (iii) Over 100 CC upto 200 CC (iv) Over 200 CC." It may be pointed out that above quoted para 4 of CGO 5 was substituted by an amendment dated 17‑6‑1985. The substituted para 4 reads as follows: AMENDED PARA.

4. It has, therefore, been decided that in future the auto‑parts shall be assessed to duty and taxes on the following basis:‑ (i) The value of genuine auto‑parts shall be notified by the Central Board of Revenue, Collector of Customs (Appraisement), Customs House, Karachi or any other officer authorized by the CBR in this behalf, from time to time; Collector of Customs (Appraisement), Custom House, Karachi may also notify the prices of auto parts as are furnished by the PASPIDA from time to time and, are otherwise acceptable. These will then be used for assessment by Customs without recourse to the genuine prices; Prices notified in terms of sub‑paragraphs (i) and (ii) above will be valid for assessment for a period of six months from the date of issue, unless the same are changed by giving one month's prior notice by Customs, PASPIDA or the local industry. In case the said notice is not issued on the expiry of initial six months, the prices earlier notified will be automatically renewed for another six months and so on; (iv) The value of non‑genuine parts shall be assessed as per declared value or after allowing a maximum of 30% reduction in the prices of genuine parts, whichever is higher; (v) In case there is a value available for an auto‑part of a vehicle, of any specific make or model, the value of similar part of other vehicles of different models and makes shall be appraised at par with the available value, keeping in view the following: ‑ (a) The value of any auto‑part of vehicle determined as per this C.G.O. of any model or make upto 1000 CC shall be applicable to auto‑parts of all vehicles of other makes and model upto 1000 CC or less. The value of non‑genuine parts of any vehicle in this range shall be assessed as indicated in (iv) above; (b) Similarly the value notified for an auto‑part of a vehicle determined as per this C.G.O. of any specific model or make of over 100 CC upto 1300 CC, over 1300 CC upto 1600 CC, over 1600 CC upto 2000 CC and over 2000 C shall apply to all vehicles of other makes and models in the range mentioned above. The non‑genuine parts in this range shall also be assessed as indicated in (iv) above; (c) The above provisions will likewise apply to trucks, buses, two wheelers, vans, tractors, pick‑ups etc. in the same manner as indicated in (a) and (b) above except for two wheelers where the range of sizes will be as under: (i) Upto 50 CC (ii) Over 50 CC upto 100 CC (iii) Over 100 CC upto 200 CC (iv) Over 200 CC

5. A new column No.6 will be added to the table of CGO 5/85. The title of this column would be:‑ Prices supplied by PASPIDA as provided in para 4 (ii) It may be observed that the table to the original CGO 5 contains the prices of certain' automobile spare‑parts which were to be taken as the normal prices in terms of Section 25 of the Act. It may also be pointed out that after the aforesaid amendment certain circulars were issued fixing the assessable prices for non‑genuine parts after discussing the same with the Pakistan Automobile Spare Parts Importers and Dealers Association, hereinafter referred to as PASPIDA and M/s. Agriauto Industries and the Deputy Collector of Customs, Appraisement. . It may also be pertinent to reproduce CGO 10 which was issued on 7‑6‑1987 and under which according to Mr. Qadir H. Sayeed, learned Standing Counsel the normal prices have been notified on 8‑12‑1987, copy of which has been placed on record, which reads as follows: "CUSTOMS GENERAL ORDER NO.10/87. Subject:‑ VALUATION OF AUTO‑PARTS It has been observed that the valuation of auto‑parts causes lot of problems for the‑ customs and importers at the time of assessment to duty and taxes. There are a large number of variables depending upon the make, model, year of manufacture of vehicles, which determine their values. The auto‑parts are further classified as genuine, manufactured under licence or non‑genuine. Taking undue advantage of the a aforesaid variables, some unscrupulous importers misdeclare the description/quality/specifications and value of auto‑parts and cause major losses to the national exchequer. (2) Apart for loss to the national exchequer, under invoiced imports of auto‑parts pose a serious threat to the local industries which are exposed to unfair competition at this ‑ stage o development when the engineering industry in Pakistan is in its infancy. (3) A detailed study on the subject was carried out in the Central Board of Revenue which revealed that in many cases there are abnormal differences in the C&F values of genuine parts as declared by the authorised dealers vis‑a‑vis the C&F values of non‑genuine replacement parts which are imported by some importers. (4) It has, therefore, been decided that in future the auto‑parts shall be assessed to duty and taxes on the following basis:‑ (i) Collector of Customs (Appraisement), Custom House, Karachi, will notify the prices of genuine and non‑genuine auto‑parts as are furnished by the Pakistan Auto Parts Importers and Dealers' Association (PASPIDA) from time to time if these are otherwise acceptable. These will then be used for assessment of duty and taxes by Customs. In case the prices furnished by PASPIDA are not acceptable to the Collector of Customs (Appraisement), Custom House, Karachi he will determine the prices as per information available with him or provided by Controller (Valuation), Karachi. These prices will be notified to general public, PASPIDA and Controller of Customs (Valuation), Karachi. (ii) If the prices so fixed by Collector (Appraisement) are not ,acceptable to PASPIDA, meeting of PASPIDA representatives with Collector of Customs (Appraisement) and Controller (Valuation) or senior officers duly authorised by them will be held in Custom House, Karachi, on every Saturday to arrive at a consensus. If there is no consensus, the next day Collector of Customs (Appraisement) and Controller (Valuation) will determine the assessable prices. If there is still a difference of opinion, the Controller's opinion will, prevail. The Collector of Customs PASPIDA may, however, refer the Central Board of Revenue such cases with full details in support of his point of view for consideration by Central Board of Revenue. (iii) Prices notified in terms of sub‑paragraphs (i) and (ii) above will be valid for assessment purposes for a period of six months from the date of issues unless the same are changed by giving one months' prior notice by the Collector of (Customs) (Appraisement), Customs House, Karachi, on his. own or on receiving representations or information from any quarters. (iv) In case the prices notified in terms of sub‑paragraphs (i), (ii) and (iii) are not reviewed on the expiry of initial six months the prices earlier noticed will be automatically renewed for another six months and so on. (v) Following will be the categories of vehicles in respect of which the assessable prices shall be determined:‑ (1) motor‑cycles. (i) upto 50 CC. (ii) over 50 CC upto 100 CC. (ii) over 100 CC upto 200 CC. (iv) over 200 CC upto 350 CC. I (v) over 350 CC. (2) All Scooters and three wheelers (Rickshaws). (3) Cars. (i) upto 1000 CC Engine capacity. (ii) over 1000 CC upto 1300 CC. (iii) over 1300 CC upto 1600 CC. (iv) over 1600 CC upto 2000 C.C. (v) over 2000 CC upto 2600 CC. (vi) over 2600 CC. (4) Pick‑ups/ Vans/ Jeeps of various engine capacity. (i) Suzuki Pick‑up. (ii) Suzuki Van. (iii) Hilux Pick‑up. (iv) Hiace‑ Van. (v) Datsun Pick‑up. (vi) Datsun Van. (vii) Toyota Jeeps, land-cruiser. (viii) Daihatsu Jeep. (1x) Suzuki Jeep. (x) Willy's Jeep etc. (5) ‑Buses and Trucks. (i) Bedford. (ii) Fiat. (iii) Hino. (iv) Nissan. (v) Mazda E 3000, T 3000 etc. (vi) Mitsubishi. N.B.‑ For four, six eight and ten Cylinders etc. (6) Tractors (i) Massy Ferguson. (ii) I.M.T. (iii) Ford. (iv) Bellarus. (v) Fiat. (vi) Chinese Tractors. (vii) Japanese Tractors. (vi) In case value of an auto‑part cannot be determined by (I) (ii), (iii), (iv) and (v) above and value of any one part of similar make or model is available, the value of parts for vehicles of other makes and models shall be appraised at par with the value available, keeping in view the following:‑ (a) the value of any auto‑part determined as per this CGO for any make or model upto 1000 CC shall be applicable for vehicles of other makes and models upto 1000 CC or less. For example value of an auto‑part of Diahatsu Charade car shall be, in such a case, applicable to Suzuki, Datsun or other Cars upto 1000 CC capacity. Some shall apply to other categories of vehicles mentioned in (v) above. The value of non‑genuine parts of any vehicle in this manner would be assessed after allowing a maximum of 30 % reduction in the prices of genuine parts. (vii) The prices earlier determined vide CGO 5/85 dated the 23rd May, 1985 and subsequent circulars issued by Collector of Customs (Appraisement), Custom House, Karachi, will stand cancelled as and when new assessable prices are determined in pursuance of this CGO. Till that time the prices fixed under CGO 5/85 and subsequent circulars issued by Custom House, Karachi shall remain in force. Having referred to CGO 5 and CGO 10, we may now refer to sections 25 and 30 of the Act. It may be observed that under subsection (1) of Section 25 it has been provided that the value of any imported goods shall be taken to be the normal price, that is to say, the price which they would fetch, on the date referred to in Section 30, on a sale in open market between a buyer and a seller independent of each other. It may also be stated that Section 30 inter alia, provides that the value of, the rate of duty applicable to any imported goods shall be the value and the rate of duty in force‑ (a) in the case of goods cleared for home consumption under section 79, on the date on which a bill of entry is presented under that section; and (b) in the case of goods cleared from a warehouse under section 104, on the dated on which a bill of entry for clearance of such goods is presented under that section. It may also be pointed out that under subsection (2) of Section 25 certain assumptions have been provided for determining the normal price of any imported goods, whereas subsection (4) of Section 25 deals with the value of the exported goods for custom purposes. It may also be observed that Explanation I to section 25 provides that a sale in open market between a buyer and a seller independent of each other presupposes‑ (a) that the price is the sole consideration, and (b) that the price is not influenced by any commercial, financial or other relationship whether by contract or otherwise between the seller or any person associated in business with him other than the relationship created by the sale itself. It may also be stated that Explanation 11 provides that two persons shall be deemed to be associated in business with one another, if whether directly or indirectly, either of them has any interest in the business or property of the other or both have a common interest in any business or property or some third person has an interest in the business or property or both of them. It is, therefore, evident that under section 25 the Customs authorities are obliged to assess the normal price on the basis, what the goods can fetch between an independent buyer and a seller. In other words, if a buyer has purchased the goods at a low price from a foreign seller for some consideration which may not be monetary ,the customs authorities in terms of Section 25 have to determine the normal price for assessing the customs duty and cannot accept the above concessional price. It may also be pertinent to point out that under the unamended section 30 of the repealed Sea Customs Act, 1878 the normal price was to be determined with reference to ,the export price in the country of origin but the above section 30 was amended and after the amendment the normal price of the country of import was made the bases for assessing the customs duty. The above point has been highlighted by the Hon'ble Supreme Court in the case of Messrs Eastern Rice Syndicate v. Central Board of Revenue, Government of Pakistan and others, reported in PLD 1959 Supreme 'Court (Pak) 364, referred to here in below more in detail.

6. Adverting to the first submission of the learned counsel for the petitioners that CGO 5 is ultra vires the powers of the CBR, it may be observed that Mr. Muzaffarul Haq has referred to the Central Board of Revenue Act, 1924 (Act No. IV of 1924) under which 'CBR was constituted and has contended that under section 3 the Central Government has been empowered to frame the rules for the purpose of regulating the transaction of business by the CBR and that every order made or act done in accordance with such rules shall be deemed to be the order or act, its the case may be, of the CBR. However, he has overlooked section 2 of above Act IV of 1924 which, inter alia, provides that the CBR shall exercise such powers and perform such duties as may be entrusted by the Central Government or by or under any law. The latter covers, inter alia, the Customs Act. It has already been highlighted hereinabove that under section 233 of the Act the CBR has been empowered to issue orders, instructions and directions to the customs officials subject to the proviso that such orders, instructions of directions shall not interfere with the discretion of the appropriate officers of customs in exercise of their C quasi‑judicial function. If the CGO was to be enforced in suppression or in violation of the provision of Sections 25 and 30 of the Act, we would have no hesitation to hold that an administrative order of the CBR cannot bye‑pass or allow the deviation of a statutory provisional However, it was candidly submitted by Mr. Qadir M. Sayyed as well as the other learned counsel appearing for the official respondents that the CGO does not have any statutory force but the same has been framed in order to provide effective application of the above provision of the Act. Whereas the thrust of the arguments of the learned counsel for the petitioners was that factually the CGO has taken away quasi‑judicial discretion for assessing the normal price in terms of Section 25 read with Section 30 of the Act. The learned counsel for the petitioners have referred to the following cases: (i) Messrs Eastern Rice Syndicate v. Central Board of Revenue. Government of Pakistan and others (PLD 1959 Supreme Court (Pak) 364), in which the appellants' goods were confiscated and they were penalised for declaring untrue import prices. The matter went upto the Supreme Court by way of appeal. The appeals were allowed by the Hon'ble Supreme Court and inter alia, it was held that the word "untrue" use in Section 39 of the Sea Customs Act, 1878 carries sense of falsity to knowledge of person concerned. It was further held that "normal price (as ascertained under Section 30) is related to market value at the port of entry in Pakistan, and is of no relevancy in determining the true export price paid by the importer in the country of origin and that a discrepancy between the normal price as fixed by the authorities, in complete honesty, and the declared invoice price must always exist and that is a proposition whose universal truth in all such cases can hardly be questioned." It was also held that "it is equally unquestionable that no merchant can be rendered subject to penalties merely on account of such a discrepancy and if it is claimed by the authorities that he has made a misstatement of price in his invoice, that cannot be established otherwise than by furnishing proof of the prevailing commercial price in the country of origin at the time of the import and that without first making an attempt to furnish such evidence, is impossible to see how the making of an untrue statement, within the meaning of section 39 and the subsequent mischief of item 9‑B in Section 167 can be imputed to any one. " It may be advantageous to reproduce also the following observations from the judgment of Cornelius J. , which has direct bearing to the controversy in issue: "in two of these cases, they attempted to fix the 'normal price'. That figure is related to market value at the port of entry in Pakistan, and is of no relevancy in determining the true export price paid by the importer in the country of origin. A discrepancy between the 'normal price' as fixed by the authorities, in complete honesty, and the declared invoice price must always exist. That is a proposition whose universal truth in all such cases can hardly be questioned. ............... "We have already given reasons, in course of deciding the appeal brought by Messrs Noor Ali and Company for our view that to find offences under item (8) and item (9‑B) of Section 167 upon the basis of 'normal price' fixed in the Customs House with or without the aid of the Valuation Branch is not within the contemplation of the relevant law. It is falsity in the export price which determines these offences, and not discrepancy between the declared export price and the ascertained 'normal price', however honestly the latter price may be calculated. Upon the basis of the 'normal price' as properly ascertained, the Customs authorities would certainly be within their right to charge customs duty and sales tax at a higher figure than could be reached if the invoice price were accepted. It appears that in each of these cases before us, the importers have been laying great stress on the invoice price throughout as if that conveyed the true measure of their taxability. This appears to have been caused through unfamiliarity with the change brought about by the amendment of Section

30. Under the previous section the cost of importation was one of the bases upon which the 'real value' was to be ascertained. But ' we have said enough to indicate that it is clearly impossible to use the 'normal price', as ascertained I under section 30, as a sufficient measures to determine the accuracy or otherwise of the invoice figures. If those invoice figures are to be falsified they must be falsified by relevant t evidence procured from the country of origin". (ii) Moghal Tobacco Company Ltd. v. Collector of Customs 1986 MLD

790. In the above case a Division Bench of this Court t set aside the assessment made by the Customs Authorities on i the ground that the same was in violation of Section 25 of the ? Act and remanded the case to the Collector of Customs with the direction to decide the appeals afresh after notice to the petitioner and to show the material and documentary evidence for assessing the value at a higher figure than declared by the petitioner. (iii) Messrs Farooq International v. The Chief Controller of imports and Exports and 4 others (1985 C L C 1781), in which a Division Bench of this Court held that no party can be condemned on basis of inquiry made behind his back and without his knowledge and the order passed against the petitioner partly based on evidence obtained or inquiries made behind his back without giving him opportunity to look into it or rebut it was vitiated being in violation of principles of natural justice. it was also held that the price at which importer claimed to have purchased goods could not necessarily be accepted as a normal price in all cases, except where Customs Authorities satisfied that it tallied with price which an independent purchaser would have paid in country where goods were purchased and the price in local market could not therefore be made a basis for determining normal price within meaning of Section

25. It was further held that the determination of normal price is a disputed question of fact which cannot be ' gone into is constitutional proceedings. The case was remanded to the Customs Authorities for determination. (iv) Messrs Kausar Trading Company v. Government of Pakistan, Central Board of Revenue and 2 others (1986 CLC 612). In the above case a Division Bench of this Court while construing Section 25 held that the term 'open market' could not be given such a wide connotation as to mean open market in the world and that neither price quoted by supplier of goods nor price prevailing in the country of manufacture was considered. It was further held that it was incumbent upon the authority to determine the value of the goods according to open market .as prevailing in the country of purchase at the relevant time‑ The petition was allowed on the ground that the assessment was made in violation of the above provision of the Act but the case was remanded to the Customs Authorities for determination of the value. Cannon Products Ltd. v. Income‑tax Officer Companies Circle, Karachi and 2 others (1985 PTD 549), in which a Division Bench of this Court while construing Sections 159 and 165 (2) (a) of the Income Tax Ordinance, 1979 held that the CBR had no power to set apart classes of cases for detailed scrutiny without providing for criteria. After referring the case law, various principles of law were deduced therefrom which inter alia included that a notification and bye‑laws issued or framed under a statute can be struck down as invalid if found to be arbitrary and unreasonable. (vi) East and West Steamship Co. v. The Collector of Customs and others (PLD 1976 S C 618). In the above case the Hon'ble Supreme Court while dealing with the question whether vessels are goods in terms of Section 20 of the Sea Customs Act, 1878 inter alia, held that word 'import' in above section 20 has no technical meaning and means bring in. (viii) Bashir Ahmad Khan v. Mahmud Ali Khan Chowdhury and others (PLD 1960 Supreme Court (Pak.) 195). In the above case the Hon'ble Supreme Court inter alia held that the Courts are not bound by Departmental interpretation of the statutory rules. (viii) Mrs. Momtaz Mallik v. The Taxing Officer (Registrar, High Court), Dacca (PLD 1969 Dacca 803). In the above case a Division Bench of the Dacca High Court inter alia held that fiscal statutes to be construed strictly and whenever there is an ambiguity, the benefit of the doubt should be given to the citizens. On the other hand Mr. S.M. Noorul Hassan has referred to the following cases: (i) Messrs WalLaltiram Jaishiram v. Secy of State (AIR 1936 Sind 127), in which an Additional Judicial Commissioner Sind held that the determination of value of goods in terms of Section 30 of the Sea Customs Act is within the jurisdiction of the Customs Officers and the Court cannot change such value and the question of burden of proof hardly arises. (ii) Baroness Wilhelmine von Maltazan v. Collector of Customs Visakhapatnam (AIR 1958 Andhra Pradesh 122 (V 45, C 40). In the above case a Division Bench of the Andhra Pradesh High Court held that from the mere circumstances that at one place the authorities have accepted the statement of the petitioner and at another place they have taken the statement of the analyst and ignored the statement of the petitioner it cannot be said that the calculation was arbitrary."

7. We may observe that in two of the above cited judgments of this Court, it has been held that the normal price is to be determined with reference to the normal price between an independent buyer and seller in the country from where the goods were purchased; whereas in the case of Messrs Eastern Rice Syndicate v. Central Board of Revenue, Finance Ministry, Government of Pakistan and others (PLD 1959 S C (Pak) 364), it has been pointed out that after the amendment of Section 30 of " the Sea Customs Act, the price of the country of origin is no longer the basis for assessing the normal price. The amended version of Section 30 of the Sea Customs Act 1878 has been in fact re‑enacted with certain more explanation i; Section 25 of the Act. Mr. Khalid M. Ishaque has submitted that factually it is the normal price of the country of import which is relevant in terms of section 25 and not the export price of the country of origin. In our view, the export price of the country of origin may be a relevant factor with the other factors for arriving at the correct normal price but an importer cannot insist upon that the normal price in terms of Section 25 should be determined solely on the basis of the export price which he has paid in the country of origin.

8. From the above cited cases, it is evident that there seems to be judicial consensus that in case the customs authorities,; want to assess certain price as the normal price, on the basis‑ of some material, in terms of Section 25 read with Section 30 of the Act other ,than what has been declared by an importer, they are bound to show such material to the importer in order to provide him an opportunity to meet the same. We may observe that it cannot be denied that because of variables depending upon the make, model, year of manufacture of vehicles, variation in the country of origin and on account of their classification as genuine and non‑genuine, it is a very difficult process to assess the normal price of a sale in an open market between a buyer and a seller independent of each other and, therefore, the ,same furnishes a leverage in the hands of some unscrupulous importers and some customs officials to manipulate the evasion of the customs duty by various means. We may also point out that the apparent object of section 25 read 'with section 30 of the Act seems to be that there should not be any evasion of the customs duty and, therefore, the emphasis in section 25 is that the determination of the normal price should be based on the factum, what the goods can fetch in an open market between an independent seller and a buyer without taking into any other consideration with reference to a date referred to in section 30 of the Act. We are inclined to hold that the impugned CGO is a bona fide attempt on the part of the CBR to plug the E unscrupulous malpractices on the part of some unscrupulous importers and customs officials. The above object, in our view, cannot be said to be ultra vires the powers of the CBR_ However, the other object mentioned in the UGOs reproduced hereinabove, namely, to provide protection to the indigenous industries of automobile parts, appears to be foreign to the Act. but at the same time we may point out that if while achieving the main object of the Act namely, to prevent the evasion of the customs duty, any other object of public good is achieved, no exception to it can be taken. It was also argued by the learned counsel for the petitioners that section 25 read with section 30 of the Act contemplates the normal price of a particular date referred to in section 30, and whereas the CGO notifies prices for a period of six months or more and, therefore, it violates the above sections of the Act. It will suffice to observe that automobile parts are not such an item, like cotton which has daily market prices, the manufacturers of auto spare‑parts normally fix prices for certain period, and, secondly the CGO in fact only provides a guideline, and they have no statutory force.

9. We may state here that on our query, Mr, Qadir H. Sayeed after obtaining instructions from the Collector of Customs (Appraisement), Mr. Khalil Masood, who was present during the hearing, has submitted that the customs authorities shall furnish the materials on the basis of which the prices are notified from time to time in consultation with PASPIDA, (which is the main Organisation representing the importers of the automobile parts) and other concerned sources. He has also submitted that appraising officer will be still free to assess normal price of a particular spare‑part of an automobile other than what is notified under the CGO if an importer in rebuttal of the materials on the basis of which the customs authorities have notified the prices, produces some reliable material. We may again point out that the CGO cannot be treated as having statutory force or having the effect of controlling power contained in section 25 of the Act, but the same can be used as a guideline, provided the materials on the basis of which the prices are notified are made available to on importer who wishes to challenge the factum that the notified price of a particular item is not a normal price and that the appraising officer and the other hierarchy of Tribunals provided under the Act are free to take a different view in case they are satisfied that factually a particular notified price is not a normal price in an open market between a seller and a buyer.

10. Mr. Khalid M. Ishaque has also referred to subsection (2) of section 14 of the Indian Customs Act, 1962 (No.52 of 1962), which provides ' that "notwithstanding anything contained in subsection (1), if the Central Government is satisfied that it is necessary or expedient so to do, it may, by notification in the official Gazette, fix tariff values for any class of. imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value", and has contended that since there is no parallel provision in section 25 in any other provision of the Act or other law, the prices cannot be notified through CGOs. We have already held hereinabove that the CGOs do not have any statutory force and, therefore, the reference to the above provision of the Indian Customs Act does not improve the case of the petitioners.

11. Mr. Khalid M. Ishaque has also referred to a para from the Book on the Indian Customs Act, 1962 by Haroon S. Kably and Subodh and Markandema at page 47, which reads as follows: "VALUATION OF GOODS FOR PURPOSES OF ASSESSMENT

1. Legislative History Subsections (1) and (2) of section 14 correspond to and replace sections 30 and 22 of the Sea Customs Act respectively. Clause (a) of section 30 which dealt with the determination of assessable value of goods as the basis of their wholesale price in India did not conform to the provisions of the General Agreement on Trade and Tariff (GATT) to which India is a signatory. Consequently, the provision has been deleted in deference to the persistent demand of the importers. Clause (d) of section 30 of the Sea Customs Act has been re‑drafted so as to conform to the principles underlying the GATT. In the present section it has specifically been provided that the assessable value shall be based on the transaction in which the seller and the buyer do not have any. interest in the business of each other and the price is the sole consideration. In consonance with the provisions of the GATT it has also been provided that where the prices in independent transactions are not ascertainable, the nearest equivalent of such price, as may be determined in accordance with the Rules made by the Central Government, will be the assessable value. Subsection (2) specifies the guiding principles for fixing the tariff values. Under the present provision the basis for fixing the tariff value has been changed, so as to be in conformity with the revised definition of value." Mr.Qadir H. Sayeed has submitted that the above para is not relevant as though the Pakistan is a member of GATT but is not a signatory to the General Agreement, whereas India is a signatory.

12. We are inclined to hold that in the absence of any provision in the relevant law, the Pakistan Courts are not entitled to take note of the factum of violation of any provision of international agreement or law, the Pakistani Courts are bound to give effect to the municipal laws as they are. In our view, the above passage is not relevant particularly because of our finding that CGO cannot modify or derogate section 25 read with section 30 of the Act but can be us guideline.

13. Reference by M/s Khalid M. Ishaque and Muzaffarul Haq to Article 77 of the Constitution is also out of context. The object of issuing CGO is not to impose a tax as contended by the above learned counsel for the petitioners but to provide guideline to the I Assessing Officer for ,arriving at the proper normal price in terms of section 25 and to plug the nefarious designs on the part of some unscrupulous importers and some unscrupulous customs officials.

14. We may also observe that it has been consistently held by the superior Courts, including in some of the above cited cases by the learned counsel for the parties referred to hereinabove that the question what is normal price in terms of section 25 is a disputed question of fact and is to be determined by the hierarchy of the forums provided under the Act and not by the High Court in exercise of Constitutional jurisdiction. The High Court interferes when the assessment is made in violation of the provision of the Act and even, where interference is made, the case is generally remanded back to the customs authorities. We may also observe that the department has placed before us certain material on the basis of which the prices were notified. We would not like to comment upon the same, as we intend to remand the cases. However, it will suffice to observe that the prices were notified after meetings and due deliberations inter alia, with PASPIDA and other agencies.

15. We would, therefore, remand the above cases to the Assistant Collector of Customs (Appraisement) with the direction to show the material to the petitioners on the basis of which the prices in the CGOs relied upon by the department were notified and also to provide K the petitioners opportunity to produce in rebut the material which they wish to produce and thereafter to decide the question, whether the impugned assessments have been made in accordance with law. The petitioners shall be entitled to file appeals and other proceedings competent under the Act before the forums provided for in case they are aggrieved by the above fresh orders. The petitions stand disposed of in the above terms with no order as to costs. M.B.All‑32/K. Case remanded.