1990 PLP 836 (CLC)

‑‑‑S. 156(1)(9)‑‑‑Import Policy Order, 1952, S. 3 (iii)‑‑‑Import Policy Order, 1978‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Penalty‑‑‑Violation of Import Policy Order‑‑‑Petitioner was issued licence for import of 55 horsepower tractors ‑‑When tractors were shipped, manufacturer had introduced new model of tractors by increasing horsepower from 55 to 60‑‑Penalty was imposed by Department for violating Import Policy Order‑‑‑ Held, if petitioner imported 60 horsepower tractors instead of 55 horsepower, only technical breach of Import Policy Order took place‑‑‑Department had not disbelieved version of petitioner that manufacturer before shipment of tractor had introduced new model of tractors with increased horsepower‑‑‑Department did not apply its mind while imposing penalty on ground of technical breach of Import Policy Order‑‑ Imposition of fine was thus not warranted‑‑Case was remanded with direction to reconsider question of imposition of fine. Khalid Anwar for Petitioner, A. Rashid Nizamani and Hassan Inamullah for Respondents. Date of hearing: 11th June, 1989. AJMAL MIAN, C.J.‑‑This above petition is directed against order dated 22‑1‑1980 passed by respondent No.1, imposing a penalty of Rs.3,22,000 under clause 9 of section 156(1) of the Customs Act, 1969 read with section 3(iii) of the Import Policy Order, 1950, for violating the Import Policy Order, 1978. The brief facts leading to the filing of the above petition are that the petitioner obtained an import licence for the import of 200 tractors from Russia under the Import Policy Order 1978, which permitted the import of 55 H.P. tractors. The L/C was opened by the petitioner on 12th June, 1979, but the tractors were shipped in July & August in two consignments of 161 &

39. It seems that when the tractors were shipped from Russia the manufacturer introduced new model of the tractor increasing the horsepower from 55 to

60. The exporter shipped new model of the tractors. Upon the arrival of the consignment, the petitioner filed bill of entries. Thereupon, the respondent‑department raised the objection that the tractors imported were not the same for which import licence was issued under the Import Policy Order. It was urged by the petitioner that before the tractors were shipped from Russia even the Chief Controller of Imports & Exports through his circular dated 1st July, 1979, issued under Import Policy Order 1979, permitted the import of new model of tractors in place of the old model. It was also urged that the petitioner without paying any additional amount got the new model of the tractors which were more powerful than the tractors of the old model. However, respondent No.3, by the impugned order, imposed the penalty in the above terms. The petitioner, being aggrieved by the above order, has filed the present petition. We have heard Mr. Khalid Anwar and Messrs Rashid Nizamani and Hassan Inamullah for respondents. We are inclined to hold that there was technical breach of the Import Policy Order 1978 in the instant case as the petitioner instead of importing 55 H.P. tractors imported 60 H.P. tractors. We may point out that respondent No.1 in his impugned order has not disbelieved the version of the petitioner that the manufacturer before the shipment of the tractors had introduced new model of the tractors. On the contrary the aforesaid circular issued by the Chief Controller of Imports & Exports on 1st July 1979 supports the averment of the petitioner as to the introduction of the new model of tractors. In our view, respondent No.1 has not applied his mind properly to the facts of the case and even if he wanted to impose any penalty on the ground of the above technical breach of the Import Policy Order 1978, the imposition of fine of Rs.3,22,000 was not warranted. We would, therefore, remand the case to respondent No.l with, the direction to re consider the question of imposition of fine. It will be open to the petitioner to file an appeal or other appropriate proceedings in case he is aggrieved by the order of respondent No.1 which may be passed. The petition stands disposed of with no order as to costs. M.Y.H./R‑102/K Case remanded.