Customs Act (IV of 1969)---

----Ss. 81, 25 & Scheds. I & II---Constitution of Pakistan (1973), Art. l99---Constitutional petition---Valuation of goods---Determination-- Provisional assessment---Issuance of valuation advice without any data along therewith---Contention of the petitioner was that he was not confronted with any evidence; even otherwise, no evidence was available to fix the price of the consignment; that such fixation without hearing, was of no value and that the enhancement or change in the value had been effected through a letter and admittedly not through a notification as was mandatorily required under S.25 of the Customs Act, 1969-- Validity---Department was unable to show as to whether the advice so issued met the fatally essential requirements of S.25 of the Customs Act, 1969 and that the provisions of the Act had been duly complied with-- Held, Central Board of Revenue or any other authorized Officer could fix the minimum custom value of goods specified in the First and Second Schedules through a notification and valuation advice letter being not such notification could not have any legal effect whatsoever.

Messrs Siddique International v. Assistant Collector (Customs) Writ Petition No.7752 of 2004 and Messrs Al-Huda Enterprises v. Central Board of Revenue and Wasim Khan v. Additional Collector of Customs Writ Petition No.4319 of 2000 applied.

Mian Abdul Ghaffar for Petitioner.

Muhammad Naeem Sheikh for Respondent.

Date of hearing: 14th October, 2004.

JUDGMENT

The petitioner i.e. Messrs Sohrab Global Marketing (Pvt.) Limited imported consignments of Mayonnaise at unit value US$ 0.20 k.g. from U.S. Enterprises i.e.. Messrs Global Exporting Marketing Co. New York, U.S.A. On arrival at Lahore Dry Port, clearance was sought through Bills of Entry Nos.1,677 dated 13-8-2003, 2558 dated 5-9-2003, 2559 and 92423 both dated 23-1-2004 filed through Messrs Ali International and Fajar Enterprises, Customs House Agents. On demand from the respondents, duly authenticated price list was filed as per leadings of the petitioner. However, declared value was not accepted by respondents Nos.1 and 2. Since there was no evidence of higher import value of identical items or similar goods, upon market inquiry, value was determined at US$ 0.80 k.g. On work back method. However, no final assessment was made. The goods were nevertheless released provisionally on payment of duties and taxes at the value of US$ 0.80 k.g. upon petitioner's furnishing an undertaking that after the material is found by the Department to be bearing higher value, the petitioner shall pay the differential of the amounts of duties and taxes. The petitioner then received order dated 16-6-2004 from respondent No. 1 whereby the value of Mayonnaise was fixed as US$ 1.93 k.g. The petitioner requested for the, valuation advice photocopy of which was provided but without any date along therewith. Hence, the present Constitutional petition.

2. The learned counsel for the petitioner contends that the petitioner was not confronted with any evidence and even otherwise, no evidence was available to fix the price of the consignment as has been done by the respondents. And further that such fixation being without hearing, is of no value. It is also contended that the enhancement or change in the value has been effected through a letter and admittedly not through a Notification as is mandatorily required under section 25 of the Customs Act, 1969 and the Rules thereunder.

3. This petition was admitted to the regular hearing on 2-9-2004. Written statement as well as parawise comments have been filed by the respondents. Respondent No. 3 in its written statement (Ground `f') admitted as under:

"(f) It is submitted to this Honourable Court that letter dated 12-5-2004 is not a notification. The aforesaid letter is an advice which may or may not be accepted by the respondent No.2".

4. The learned counsel for the respondents is unable to show as to whether the advice so issued meets the fatally essential, requirements of section 25 of the Customs Act, 1969 and that the provisions of the Act have been duly complied with.

5. This Court in W.P. No.7752 of 2004 titled Messrs Siddique International v. Assistant Collector (Customs) referring to the findings in the cases titled Messrs Al-Huda Enterprises v. Central Board of Revenue and Wasim Khan v. Additional Collector of Customs W. P. No.4319 of 2000 observed:

"3 .. that Central Board of Revenue or any other authorized officer can fix the minimum custom value of goods specified in the First Schedule and Second Schedule through a Notification and the impugned letter not being a Notification cannot have any legal effect whatsoever. Accordingly, it is declared to be without jurisdiction.

3-A ..Under the provisions of subsection (14) of section 25 of the Customs Act, 1969, Central Board of Revenue or any other authorized officer can fix the minimum custom value of goods specified in the First Schedule and Second Schedule only through a Notification.

4 In view of the above, the impugned letter and any further proceedings or orders passed thereupon are held to be without lawful authority and of no .legal effect."

6. No distinguishing feature in this case has been shown by the respondents. The respondents have very candidly admitted that the valuation was not finalized through a notification as required by law. The principles and the conclusions recorded in the above referred cases, directly apply to this case as well.

7. This petition is thus accepted with costs. The impugned valuation advice dated 12-5-2004 and the demand based thereupon is declared to be without lawful authority arid of no legal effect.

M.B.A./S-255/L Petition accepted.