ABDUL GHAFFAR BHUNDI VS FEDERATION OF, PAKISTAN through Secretary, Revenue Division, Islamabad, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1475 (2008)

Customs Act (IV of 1969)---

----Ss. 18, 19 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of customs duty---Dispute between parties related to classification of goods and applicability of particular PCT Heading on the goods imported by the petitioner titled as Cement Bunker Truck---Petitioner had stated that vehicle in question fell under P.C.T. Heading 8705.9000 having customs duty at 10%, whereas according to the Department it fell under P.C.T. Heading 8704.2290 leviable with duty at 60%---Question involved in the matter appeared to be a question of fact which was outside the ambit of the High Court, but as act of the department was found to be illegal, High Court had jurisdiction to go into the factual aspect---Disputed consignment did not fall within the banned items--Even otherwise counsel for department except raising that plea had not been able to justify or explain. as to how vehicle in question fell within banned items---Petitioner had been able to establish the fact that even before that consignment and thereafter Department was clearing that very vehicle under P.C.T. Heading 8705.9000, whereas in that particular case he had been discriminated by the Department---High Court disapproved such action of the department and observed that department was not supposed to deviate from its past practice without any cogent reasoning---Constitutional petition was allowed accordingly.

Messrs Radaka Corporation and others v. Collector of Customs 1989 SCMR 353; 2002 PTD 955 and 2004 PTD 2516 ref.

Junaid Ghaffar for Petitioner.

Syed Tariq Ali for Respondent Nos. 1 and 2.

Raja Muhammad Iqbal for Respondent No.3.

ORDER

Mrs. YASMIN ABBASEY, J.---Dispute in between parties relates to classification of goods and applicability of particular PCT heading on the goods imported by the petitioner titled as Cement Bunker Truck.

According to petitioner the vehicle falls under PCT Heading 8705.9000 having customs duty @ 10%. Whereas according to department/respondent it falls under PCT Heading 8704.2290 leviable with customs duty @ 60%.

Apparently the question involved in the matter appears to be a question of fact that under which particular PCT heading the vehicle imported by petitioner falls, which is outside the ambit of this Court, but it is argued by learned counsel for petitioner that when the act of respondent is found to be illegal and not sustainable in law, this Court has jurisdiction to go into the factual aspect.

According to him even prior to this consignment he had earlier imported the same vehicle. It was classified and duty was charged under PCT Heading 8705.9000. To support his arguments learned counsel has placed evidence of clearance of similar consignments under same PCT heading. The documents referred by learned counsel at pages 39, 43 and 117 of the file support the case of petitioner that even after import of subject consignment, the goods imported were cleared by the customs authorities on 11-11-2005 under PCT Heading 8705.9000.

In reply to it, it is contended by learned counsel for respondents Nos.1 and 2 that the subject consignment is banned item under Import Policy Order, 2005 therefore, any practice adopted by the department cannot change the law.

We have gone through the Appendix-C Clause-10 of Import Policy Order, 2005 and Chapter-87 of Customs Import Tariff, apparently disputed consignment does not fall within the banned items. Even otherwise, learned counsel for respondents Nos. 1 and 2 except raising this plea has not been able to justify or explain that how the vehicle titled as Cement Bunker Truck falls within banned items.

So far objections raised by the learned counsel for respondent No.3 with reference to the applicability of PCT Heading 8704.2290 on the subject consignment is absolutely different to what has been pleaded by respondents Nos. 1 and 2.

In contrary, petitioner has been able to establish the fact that even before this consignment and thereafter the department is clearing this very vehicle under PCT Heading 8705.9000, whereas in this particular case has been discriminated by the department. Such act has been condemned by the Honourable Supreme Court of Pakistan in1989. SCMR 353 (Messrs Radaka Corporation and others v. Collector of Customs and another) wherein it is observed that the departmental practice of interpretation for goods under particular PCT heading having been consistently followed by the department and that has become a long-standing practice had almost acquired force of law. The practice could not, therefore, be lightly departed. Moreso because of above practice the appellants and other manufacturers of the re-rolling material had imported goods under specific licences granted by the Government of Pakistan for that purpose. Same view has been followed up by this Court in 2002 PTD 955 and 2004 PTD 2516.

In view of principle laid down, the department is not supposed to deviate from its past practice without any cogent reasoning.

In view of foregoing reasons, the petition is hereby allowed as prayed.

H.B.T./A-59/KPetition allowed.