COLLECTOR OF CUSTOMS, PORT MUHAMMAD BIN QASIM, KARACHI VS Messrs KAGHAN GHEE MILLS (PVT.) LTD., 2006 PTD-SUPREME-COURT 541 (2005)

(On appeal from judgment of Sindh High Court Karachi, dated 13-10-2004 passed in Special Customs Appeals Nos. 79 and 80 of 2003).

(a) Customs Act (IV of 1969)---

---Ss. 15 & 17---RBD Palm oil unfit for human consumption, import of---Confiscation of such oil and imposition of penalty---Validity---Test reports of such oil showing same to be fit for human consumption at the time of its import, but had become unfit due to passage of time---Making improper samples of such oil or subjecting same to processing could make same unfit for human consumption---Test report indicated that such oil, after undergoing further process of Ghee manufacturing could become fit for human consumption---Appellate Tribunal set, aside impugned order with direction to importer to carry out process of manufacturing Ghee from such oil subject to scrutiny by representative of Health Department and release such quantity of oil only if found fit for human consumption.

(b) Customs Act (IV of 1969)---

---Ss. 194 & 196---Decision of Appellate Tribunal on factual aspect of case---Appeal to High Court---Maintainability---Decision of Tribunal neither suffering from any illegality or infirmity nor contrary to or in. violation of any provision of Customs Act, 1969 or any other law---No question of law was before Tribunal for adjudication, which was necessary condition for maintainability of appeal under S.196 of the Customs Act, 1969--High Court dismissed appeal in circumstances.

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

Nemo for Respondent (in both Petitions).

Date of hearing: 10th November, 2005.

ORDER

SAIYED SAEED ASHHAD, J.---These petitions for leave to appeal have been filed against the order of the Sindh High Court, dated 13-10-2004 dismissing Special Customs Appeals Nos. 79 and 80 of 2003.

2. The brief facts of the case are that the respondent imported several consignments of RBD Palm Oil from Malaysia. After their arrival the consignments were allowed in-bonding and they 'were stored in the bulk cargo tank terminal of Messrs Awam (Pvt.) Limited at Port Qasim Collectorate. During warehousing another consignment of RBD Palm Oil was imported by the respondent and the same was also discharged in the same storage tank. The petitioner received information that the consignments of RBD Palm Oil imported by the respondent were not fit for human consumption. An investigation was undertaken in the matter whereupon it transpired that the entire quantity of RBD Palm Oil contained higher percentage of Stearin Oil rendering it unfit for human consumption. The imported RBD Palm Oil was confiscated vide Order- in-Original, dated 29-11-1999. Thereafter it was decided that samples of RBD Palm Oil be drawn and same be sent to three independent Laboratories for testing which was accordingly done and the samples were sent to H.E.J. Institute of Chemistry, Pakistan Council of Scientific and Industrial Research and Central Testing Laboratories. The H.E.J. Institute of Chemistry and Pakistan Council of Scientific and Industrial Research vide their reports declared the Palm Oil to be unfit for human consumption, whereupon notice was issued to the respondent to show cause as to why the palm oil should not be confiscated and penalty be imposed. After due process order of confiscation and penalty was passed. The respondent assailed the same by way of appeal before the Customs, Excise and Sales Tax Appellate Tribunal (hereinafter referred to as the "Tribunal") who vide order, dated 5-9-2002 allowed the appeal. It will be useful to refer to the operative part of the judgment of the Tribunal and the same is reproduced as under:--

"(7) The test report of Customs Lab. clearly indicates that the goods in question were fit for human consumption at the time of import but with the passage of time became unfit for human beings. The PCSIR also attributed it to improper sampling. In our opinion test report at the time of importation is proper test report. This test report indicated that since this Palm Oil has to undergo further processing, it can be made fit for human consumption. The whole process of Ghee manufacture starts from oil seed to extraction and refining, the impurities in Palm result in viz. of FFA and melting point, these impurities can be removed by purification process.

(8) The appeal is therefore allowed subject to the condition that whole process of manufacturing ghee from the present consignment should be carried out in the presence of the representative of Provincial Health Department and they should allow release only if found fit for human consumption. This shall apply mutatis mutandis on Appeal No. 284/00 of Messrs Kaghan Ghee Mills."

3. The Department felt aggrieved and dissatisfied with the above order of the Tribunal and assailed the same by way of above referred two Special Customs Appeals. The High Court disposed of the above two appeals in the following terms:

"The appeal was admitted to examine the proposed questions at serial Nos. 3,4 and 5 with the assistance of the learned counsel. We have reappraised the impugned order of the Tribunal. The Tribunal decided the matter solely on the question whether the import (RBD) palm oil was fit for human consumption and the issue was decided in affirmative which is based on the test report of none other than the appellant's own laboratory. The matter was decided on fact, which culminates at the Tribunal stage, which cannot be agitated before this Court. The questions formulated do not emanate from the impugned order. Consequently the appeal is dismissed with no order as to costs."

4. We have heard the arguments of Mr. Akhlaq Ahmed Siddiqui, Advocate-on-Record and have perused the material on record, the orders of the Tribunal and the High Court. From a bare perusal of the order of the Tribunal it is absolutely clear that the Tribunal in coming to the conclusion had taken all the aspects of the case into consideration and had passed the order with full application of mind giving due importance to the reports of H.E.J. Institute of Chemistry and Pakistan Council of Scientific and Industrial Research Laboratories. The Tribunal observed that the palm oil according to the above reports was fit for human consumption at the time of its import but had become unfit with the passage of time. According to the report of PCSIR making of samples improperly could be a cause for palm oil having become unfit for human consumption. It was, also highlighted in the report that .the palm oil would become fit for human consumption if it was subjected to processing. Keeping in view the above factors and assigning due weight to them, the Tribunal set aside the order of confiscation and imposition of penalty and ordered that the process of manufacturing ghee from the palm oil imported as above should be carried out subject to the scrutiny by the representative of Provincial Health Department and only that quantity of palm oil should be released which would be found fit for human consumption.

5. The High Court was justified in not interfering with the order of the Tribunal which did not suffer from any illegality, infirmity or was contrary or in violation of any provision of Customs Act or any other law. The High Court was also correct in observing that the matter was decided at factual stage and no question of law was before it for adjudication which was necessary condition for maintainability of appeal under section 196 of the Customs Act.

6. For the forgoing facts, discussion and reason both the petitions for leave to appeal are found to be without any substance. They are dismissed and leave to appeal is refused.

S.A.K./C-2/SCLeave refused.