DEPUTY CONTROLLER OF CUSTOMS (VALUATION) and others VS Messrs ABDUL. SHAKOOR ISMAIL KALOODI, 2006 PTD-SUPREME-COURT 2142 (2006)

(On appeal from the judgment, dated 27-8-2004 passed by the High Court of Sindh, Karachi in C.Ps. Nos.D-446 and D-520 of 1994).

Customs Act (IV of 1969)---

----Ss. 25 & 25-B---Inspection and Valuation of Imported Goods Rules, 1990, R.9---Constitution of Pakistan (1973), Art.185 (3)---Customs duty---Pre-shipment assessment---Notification, implementation of---Importer filed general manifest on 3-4-1991, regarding the consignment imported by him---Firm of Pre-shipment Inspectors, assessed the duties in terms of its prevailing price report---Duties on four bills of entries were assessed and paid on 10-7-1991, while remaining six bills of entries were filed on 31-7-1991---Customs authorities, on the basis of a notification issued on 14-7-1991, assessed the remaining consignment at the price fixed in the notification---High Court found that as the notification was published in official Gazette on 5-8-1991, therefore, bills of entries filed before the date of publication could not be assessed on the price fixed in the notification-Validity---Notification dated 14-7-1991 on the basis of which enhanced duties were claimed was published in official Gazette on 5-8-1991, while bills of entries for clearance of consignment were filed on 8-4-1999 and 31-7-1999---Price fixed in the notification dated 14-7-1991 became effective on 5-8-1991 and not earlier---Importer was entitled to claim that the value of consignment be reckoned with the previous rate---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 ref.

Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners (in C.P. No.859-K of 2004).

Abdul Hafeez Lakho, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1 (in C. P. No.859-K of 2004).

Nemo for Respondents Nos.2 to 5 (in C.P. No.859-K of 2004).

Abdul Hafeez Lakho, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner (in C.P. No.889-K of 2004).

Rana M. Shamim, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondent No.3 (in C.P. No.889-K of 2004).

Nemo for Respondents Nos.1, 2, 4 to 6 (in C.P. No.859-K of 2004) .

ORDER

KARAMAT NALIR BHANDARI, J.--- These two petitions are directed against one and the same judgment of the High Court of Sindh at Karachi by which it partly allowed Constitutional Petition No.446 of 1994 filed by Messrs Abdul Shakoor Ismail Kaloodi, petitioner in C.P. No.889-K of 2004, (hereinafter described as Importer).

2. Facts necessary and relevant for disposal of these petitions are that the importer imported about 1045 metric tons of "Dioctyphthalat" (DOP) from United State of America falling under .Import Customs Tariff (ICT) Heading 2917.3200. Shipment arrived in Karachi and general manifest was filed on April 3, 1991. At the time of arrival, assessment of the custom duties under section 25 of the Customs Act, 1969 was required to be made on the value provided by the firm of Pre-shipment Inspectors known as "Cotecna", as per the Inspection and Valuation of Imported Goods Rules, 1990 (to be referred as Rules, 1990). The valuation made by "Cotecna" was liable to be rejected if evidence, of higher valuation was available with the Custom Authorities as per proviso to Rule 9 of the 1990 Rules. According to the invoice filed by the Importer the consignment was valued at U.S. $ 900 per metric ton. However, the duties were assessed at the rate of U.S. $ 800 in terms of the prevailing price report of "Cotecna". The Importer filed 4 Bills of Entries for clearance of about 400 metric tons of DOP on 8-4-1991. The duty was assessed on 10-7-1991 and paid on the same date. For the remaining consignment, 6 Bills of Entries were filed on 31-7-1991. The Controller of Customs, (Valuation) Custom House, Karachi issued a notification dated 14-7-1991 in exercise of his under subsection (1) of section 25-B of the Customs Act, 1969, wherein he fixed the price at U.S. $ 1164 per metric ton. The High Court has observed that this notification was published in the official Gazette on 5th of August, 1991. However, the learned counsel for Deputy Controller Customs (petitioner in C.P.859-K of 2004) has not placed the copy of Gazette on record nor he has been able to show one to us, even though he wondered as to how the High Court had taken the date of publication in the official Gazette as 5-8-1991. In the absence of any contrary material we will take the date of publication in the official Gazette as 5-8-1991.

3. The dispute is confined as to whether the consignment is to be assessed taking the "Cotecna" price as the basis (US $ 800 per metric ton) or the one mentioned in the notification dated 14-7-1991. (US $ 1165 per metric ton). An other disputed question is as to from which date the notification dated 14-7-1991 take effect i.e. whether from the date of issue i.e. 14-7-1991 or from the date of publication in the official Gazette i.e. 5-8-1991. The High Court has concluded that the notification is to be effective from the date of publication and they further concluded/directed as under:--

"For the aforesaid reasons, we came to the conclusion that the goods in respect whereof ex-bonding Bills of Entry were filed by the petitioners before actual publication and the gazette containing I.T.P. fixed under section 25-B of the Customs Act on 4th July, 1991 were liable to duty only at the rate assessed in the P.P.R. of Cotecna in respect to the consignments. In C.P. No.446 of 1994 where such Bills of Entry were filed after the publication in the gazette, duties would be payable at the rates specified therein."

4. The question as to when the notification dated 14-7-1991 takes effect does not present much difficulty. The answer is provided in section 25-B of the Customs Act, 1969 which at the relevant time read:--

"Section 25-B. Fixation of value for imports and exports.---(1) Notwithstanding anything contained in section 25, the Board or such officer as is authorized by the Board in this behalf may, from time to time, by notification in the official Gazette, for the purposes of levying customs duties under this ,Act or any other law for the time being in force, fix the value of the goods specified in the First Schedule and the Second Schedule, at such rates as it may deem fit and subject to such. conditions or limitations as it may impose.

(2) Different values may be fixed for different classes or descriptions of the same type of goods"

Subsection (3) was added by Finance Act, 1993 (X of 1993) which reads:--

"(3) A notification issued under subsection(1) shall be effective from the day , specified therein, notwithstanding that the official Gazette in which such notification appears is published at anytime after that day."

5. The very insertion of subsection (3) in the year 1993 indicates that prior to addition, the notification issued under subsection (1) would only take effect when the same was published in the official Gazette. Further there are number of judgments of this Court holding that the publication in the official Gazette was precondition to the enforcement of the notification. Reference may be made to The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190.

6. The above conclusion is also confirmed by section 20-A of the General Clauses Act, 1897, which was added through Ordinance XXXIII of 2002, on 27-7-2002. Section 20-A reads:--

"Rules and Order, etc., to be published.--- All rules, order, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette."

7. The notification dated 14-7-1991 on the basis of which enhanced duties are claimed was published in official Gazette on 5-8-1991 while the Bills of Entry for clearance of the consignments were filed on 8-4-1999 and 31-7-1999. The price of 1165 US$ per metric ton fixed in the notification dated 14-7-1991 became effective on 5-8-1991 and not earlier. The Importer was perfectly entitled to claim that the value of consignment be reckoned at the rate of US $ 800 per metric ton.

8. It will be noticed that vide impugned judgment, the High Court also decided/accepted Constitutional Petition No.D-520 of 1994 filed by Messrs Tariq Brothers involving almost same controversy. Against the judgment passed in C.P. No.D-520 of 1994 Deputy Controller of Customs (Valuation) and others filed C.P. No.860-K of 2004 which was heard on 10-11-2005 and dismissed.

9. For above reasons we refuse leave and dismiss C.P. No.859-K of 2004. C.P. No.889-K of 2004 filed by Importer is converted into appeal and allowed.

10. We leave parties to bear their own costs.

M.H./D-10/SCPetition dismissed.