1989 PLP 4382 (MLD)

SAEEDUZZAMAN SIDDIOUI, J.--The petitioner in the above case imported a consignment of small glass stones in the year 1981, against an import licence which were valid for import of synthetic stones including glass stones falling under PCT Heading Nos.70.19 11 and 71.03 only On arrival of the consignment at Karachi Port, the petitioner filed Bill of Entry for clearance of goods for home consumption on 30-12-1981 and described the goods as falling under P.C.T. Heading No.70.19. The Customs Authorities, however, did not agree with the above classification and treated the goods under P.C.T. Heading No.70.14, Accordingly, respondent No.3 by his order dated 6-5-1980 confiscated the consignment on account of alleged contravention of the provisions of Customs Act, but allowed its release on payment of redemption fine of Rs.50,000 in addition to a penalty of Rs.20,

000. On appeal respondent No.2 though maintained the order on merits but reduced the redemption fine and penalty to Rs.25,000 and Rs.10,000 respectively. On further revision before respondent No.1 the penalty amounting to Rs.10,000 was remitted but redemption fine of Rs.25,000 was maintained. The petitioner has challenged the above orders in the above petition. It is contended by the learned counsel for the petitioner that the petitioner was entitled to the clearance of the above goods under P.C.T. Heading No.70.19 on the basis of consistent past practice followed by the Customs Department in this regard. It is further contended by the learned counsel that for the first time the above items, under Customs General Order No.31/83 dated 29-12-1983, were classified as falling under heading No.70.14, and as such the consignment imported by the petitioner in the year 1981 should have been allowed clearance under PCT Heading No.70.19 on the basis of the past practice followed by the department. From the material placed on record before us as well as from the orders passed by the respondents in the above case it is quite clear that prior to the import of the consignment in dispute, the Custom Authorities had allowed clearance of similar goods treating them under PCT Heading No.70.

19. The learned counsel has relied on the case of M/s. Gemni Corporation v. The Collector of Customs etc. N L R 1989 Tax 97 as well as an unreported decision in the case of M/s. Pak Barma Traders v. Pakistan and others decided on 18-1-1988, in support of his above contention. In the first cited case of Gemni Corporation, the goods imported by the petitioner in that case were Beads and False Pearls which were classified by the importer under Heading No.70.19 of P.C.T. in the Bill of Entry. The Customs Authorities, however, treated the goods as falling under Heading No.70.14. In the second referred case. of M/s. Pak Barma Traders also, the item imported by the petitioner was classified under Heading No.70.19 in the Bill of Entry but the Customs Authorities treated the same under Heading No.70.14. In both the above cases on the basis of past practice followed by the Customs Department in that regard it was held that the petitioners were entitled to clearance of the goods under Heading No.70.19. It was further observed in the case of Gemni Corporation that the Customs General Order No.3l/83 dated 28-12-1983 which was issued after the import of the consignment could not be made applicable to the petitioner in that case. The above cases fully apply to the facts of the present case. We, accordingly, hold that the goods imported by the petitioner should have been classified under P.C.T. Heading No.70.19 on the basis of consistent past practice followed by the Customs Department in this regard and release of consignment should have been made accordingly. As a result of above conclusion the petition is allowed and the orders of Nos.1, 2 and 3 imposing penalty and fine on the petitioner are respondents without lawful authority and of no legal effect. There will be no order declared as to costs as the respondents have not appeared and contested the case in spite of service of notice. The bank guarantee furnished by the petitioner in the case stands discharged. M.Y.H./G-131/K Petition allowed.