Customs Act (IV of 1969)---

----Ss. 27(2) & 108---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Imported goods were damaged due to unavoidable accident after authority allowed same to be transported for warehousing---Authority refused petitioner's claim for abatement of duty in respect of damaged goods---Validity---Goods had been damaged after same had been entered for warehousing---Petitioner was entitled to relief in terms of S.27(2) of Customs Act, 1969--High Court allowed Constitutional petition with directions to the Authority to proceed in the matter in terms of S.108 read with S.27 of the Customs Act, 1969.

Messrs Tata Textile Mills Ltd. through Director v. Assistant Collector (Recovery Officer), Customs, Central Excise and Customs, Multan and another PLD 2000 Lah. 286 rel.

Mian Nazir Azhar for Petitioner.

Khurram M. Hashmi for Respondent.

Date of hearing: 1st September, 2003.

JUDGMENT

The facts that emerge upon a reading of the writ petition and the parawise comments filed by the respondents in this case are that some goods were imported by the petitioner. Upon arrival at Karachi these goods were cleared vide Bills of Entry No. 1522, dated 20-9-1986 and 2794, dated 20-12-1986. These consignments were allowed to be transported against safe transportation bond and insurance policy coverage to Rawalpindi. Before the goods could reach the Warehouse at Islamabad, some damage occurred. According to the petitioner 772 bags were damaged. This fact was also ascertained by the Customs officials who supervised the in-bonding at Islamabad. The petitioner claimed abatement of duty in respect of the damaged goods but the same was disallowed and ultimately the revision filed by the petitioner before the Federal Government was also dismissed on 18-12-1993.

2. Learned counsel for the petitioner contends that this is a case of misconstruing rather non-reading of the relevant provision of law by the respondent-authorities. According to the learned counsel the case is squarely covered by section 108 of the Customs Act, 1969. He also relies upon a Division Bench judgment of this Court in the case of Messrs Tata Textile Mills Ltd. through Director v. Assistant Collector (Recovery Officer), Customs Central Excise arid Customs, Multan and another (PLD 2000 Lahore 286). Learned counsel for the respondents, on the other hand, contends that abatement would be allowed only if it was to be shown that the goods suffered damage before arrival at Karachi and not thereafter. According to the learned counsel, the goods were taken to Islamabad by the petitioner under their own arrangement and as such the provision of section 108 of the said Act cannot be invoked.

3. I have given some thought to the respective contentions of the learned counsel for the parties. I have already stated above the facts of this case. Now it is admitted that the goods were cleared at Karachi and then were allowed to be transported too Islamabad for inbonding. The impugned order of the Federal Government clearly gives the impression that the Federal Government as well as the other officials of the respondent-Department have completely ignored, the provisions of section 108 of the said Act, 1969. I may reproduce here the said section 108:--

"108 Re-assessment of warehoused, goods when damaged or deteriorated.---If any goods upon which duties are levied ad valorem or otherwise are damaged or deteriorated due to an unavoidable accident or cause after they have been entered for warehousing and assessed under section 80 and before they are cleared for home-consumption, their value in the damaged or deteriorated state may be appraised, according to either of the methods provided in subsection (2) of section 27 if .the owner so desires, by an officer of Customs and the duty leviable thereon shall be diminished in proportion to the diminution of their value and a new bond for twice the amount of the diminished duty may, at the option of the owner, be executed by him to replace the bond originally executed."

Now according to the said judgment in the case of Messrs Tata Textile Mills Ltd. through Director, the term "entered for warehousing" means that an application for warehousing the goods have been made. It is an, admitted position that the petitioner was allowed to warehouse the goods at Islamabad after transporting the same thereto and consequently it can be safely said that the goods have been entered for warehousing and it was admittedly thereafter that the damage or deterioration took place due to some unavoidable accident. I have already stated above that the factum of damage stands admitted. Now coming to the contentions of the learned counsel for the respondents. I called upon him to point out any provision in the said law which constitutes an exception in respect of goods which are transported to warehouse under the safe transportation scheme. He is unable to do so. On the other hand, a perusal of the said scheme would show that the only condition laid down is the provision of the insurance guarantee and execution of bonds and the carriage by said designated carrier as are decided by the Board of Revenue. Thereafter the scheme talks of the responsibility of the various officers and warehouse-keeper. This being so, the only conditions applicable are those mentioned in the said statutory provision i.e. section 108 of the Customs Act, 1969 itself. There is no denial that the goods were damaged after they were entered for warehousing and this being so, the petitioner is entitled to relief in terms of section 27(2) of the Customs Act, 1969. The writ petition accordingly is allowed, the impugned orders passed by the respondents are set aside being without lawful authority and the Collector is directed to proceed in the matter in terms of section 108 read with section 27 of the Customs Act, 1969. No orders as to costs.

S.A.K./Q-39/L Petition accepted.