(On appeal from the order, dated 27-4-2004 passed by High Court of Sindh at Karachi in Special Central Excise Appeals Nos.295, 297 and 298 of 2002).

Customs Act (IV of 1969)---

----Ss. 156(1), Cls.(9) & (14); 16 & 32---Customs Appraisement Manual, Chap.15, C1.(3)---Constitution of Pakistan (1973), Art. 185(3)---Correctness of weight of the exportable consignment---Determination---Duty of Customs authorities---Customs authorities were required to check/examine 10% of the said consignment even if the representatives of the exporters had not raised any objection to the examination of only one carton/packet out of large number of cartons/packets containing the goods/consignment for export---Where the Customs authorities checked/ examined only one packet/carton out of large number of packets, they could not claim that the exporters were estopped or precluded from objecting to the legality or otherwise of the examination and challenge the report of the Appraising/Examining Officer on the basis of such examination/ appraisement---By checking/examining just one out of large number of packets/cartons of goods to be exported, officers of the Customs Department had acted illegally and in violation of the Customs Appraisement Manual and the Standing Orders issued by the Central Board of Revenue---Such act of the Customs authorities had rendered examination of the consignments as illegal, improper and of no binding effect---Order of the Customs authorities, on the basis of reports of such examination of the consignments holding the exporters guilty of offences under Ss.16 & 32, Customs Act, 1969 and imposition of penalties under cls.9/14 of S.156(1) of the Act was also without lawful authority and of no legal consequence---Petition for leave to appeal was dismissed.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner (in all Petitions)

Nemo for Respondents (in all Petitions).

Date of hearing: 20th October, 2005.

ORDER

SAIYED SAEED ASHHAD, J.--- Above three petitions for leave to appeal have been filed against the Sindh High Court judgment dated 27-4-2004 in Special Central Excise Appeals Nos.295, 297 and 298 of 2002 whereby the said appeals filed by the petitioner were dismissed and the order Of the Customs, Excise and Sales Tax Appellate Tribunal (hereinafter referred to as the "Tribunal") was upheld.

2. Brief facts requisite for disposal of the above three petitions are that respondents in all the three petitions exported various cartons/ packets of 100% Polyester Dana Tissue Printed Fabrics, cotton elasthene knitted dyed girls shorts and blended printed satin curtains. The respondents had claimed duty drawback under various S.R.Os. dealing with the claim of duty drawback against the export of the consignment. Instead of receiving the certificates of duty drawbacks they received show-cause notices containing the allegation that the weight of the consignment was misdeclared than the actual weight which in all three cases was 25% less than the declared weight.

3. The respondents denied the allegations and submitted that the difference or confusion in the weightage of the consignment was on account of the fact that only one carton/packet of the entire cartons/ packets containing the aforesaid goods/commodities was examined and weighed by the Custom authorities, instead of examination of 10% of the cartons/packets and it was submitted that had the cartons/packets been examined to the extent of 10% there would have been no confusion or difference in the weight. The contention of the respondents was rejected and in all the three cases the Collector of Customs/Adjudicating Officer imposed penalties on the respondents under clauses 9 and 14 of section 156(1) of the Customs Act, 1969 (hereinafter referred to as the "Act") for violation of sections 16 and 32 of the Act.

4. The order of the Collector of Customs/Adjudicating Officer was assailed before the Tribunal who accepted the appeals and set aside the order of the Collector whereby penalties had been imposed on the respondents. Petitioner assailed the order of the Tribunal before the High , Court without any success, hence these petitions.

5. We have heard the arguments of Mr. Akhlaq Ahmed Siddiqui, Advocate-on-Record and have perused the material on record, relevant provisions of law and the orders of the High Court of Sindh and the Tribunal. According to the settled principle and provisions of law for determining the correctness of the weight of the exportable consignment the Customs authorities are required to check/examine 10% of the said consignment. This is as per clause (3) of Chapter 15 of the Customs Appraisement Manual. This requirement was not complied with in all the three cases in hand.

6. It has been contended by Mr. Akhlaq Ahmed Siddiqui that it was the duty of the representatives of the respondents to have asked the examining/appraising officer to check or examine the consignment in accordance with the Customs Appraisement Manual along with Standing Order 2 of 1995 issued by C.B.R. requiring all the Customs authorities to act strictly in accordance with the provisions of law rules and guidance issued by it from time to time.

7. This contention does not merit any consideration. It is for the Customs Officers examining the consignment to act strictly in accordance with law and not to flout the same. Even if the representatives of the respondents had not raised any objection to the examination of only one carton/packet out of large number of cartons/packets containing the goods/consignment for export, it would not be open to the Customs authorities to claim that the respondents were estopped or precluded from objecting to the legality or otherwise of the examination and challenge the report of the Appraising/Examining Officer on the basis of such ^Examination/appraisement. The officers working under the petitioner had acted illegally and in violation of the Customs Appraisement Manual and the Standing Orders issued by the C.B.R. which had rendered examination of the consignments in all the three cases as illegal improper and of no binding effect. On the basis of reports of such examination the order of the petitioner holding the respondents guilty of the offences under sections 16 and 32 of the Act and imposition of penalties under clauses 9/14 of section 156(1) of the Act was also without lawful authority and of no legal consequence. Accordingly the Tribunal as well as the Sindh High Court were justified in not agreeing with the order of the Collector of Customs/Adjudicating Officer who in making the order appeared to be completely oblivious of the legal flaws and defects committed by the Appraising Officer and the consequences thereof.

8. For the foregoing facts, discussion and reasons these petitions are found to be without any substance and are dismissed. Leave to appeal is refused.

M.B.A./C-50/S??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.