FASTLINE (PVT.) LTD VS COLLECTOR CUSTOMS, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 905 (2008)

Customs Act (IV of 1969)---

----Ss.25-D & 81---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Assessment---Plea of petitioner/ assessee was that since assessment was without confrontation, and no appeal lay against provisional order under S.81 of the Customs Act, 1969, constitutional petition should be admitted---Counsel for authorities, on the other hand, had argued that in the presence of S.25-D of Customs Act, 1969, constitutional petition could not be entertained by the High Court---Argument of authorities that any enactment could deprive a person of his right of invoking constitutional jurisdiction of High Court, was misconceived---Constitutional jurisdiction of the High Court in terms of Art.199 of the Constitution, could not be withdrawn by making an amendment in the Customs Act, 1969---Since no notice had been served on the assessee before assessment, Assistant Collector Customs, was directed to reassess the same within two weeks of the service of present order---Assessing Officer was directed to confront the base of his estimate to assessee before deciding customs duty chargeable on the product.

Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357 and Collector of Customs Port Muhammad Bin Qasim v. Messrs Zymotic Diagnostic International, Faisalabad 2007 PTD 2623 ref.

Jawad Hassan and Syed Imran Ali for Petitioner.

Khawar Ikram Bhatti and Izhar-ul-Haq, Legal Advisors for Respondents.

ORDER

KH. FAROOQ SAEED, J.---At this pre-admission stage, learned counsel for the petitioner as well as learned legal advisors entered appearance and advanced the arguments in favour and against the admission respectively.

2. The petitioner's point of view remained that since the assessment is without confrontation besides no appeal lies against the provisional order under section 81, the writ petition should be admitted. Learned counsel for the respondents have argued that in the presence of section 25-D, this Court cannot entertain a writ petition A like this.

3. So far as the arguments that any enactment can deprive a person of his right of invoking writ jurisdiction is concerned, it appears to be a misconception. The constitutional jurisdiction by the High Court in terms of Article 199 cannot be withdrawn by making an amendment in the Customs Act.

4. Learned counsel for the petitioner inter alia has argued that no notice before provisional assessment under section 81 was given to the petitioner. Besides the item of the assessee is "Raw Blanks" which by no means can come within the definition of pencil. He added that the raw blanks after its import go through a large number of process which if counted are almost 15 plus. It is after almost 15 phases that the pencil becomes consumable. Regarding maintainability, he referred following cases in his favour "Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357 and Collector of Customs Port Muhammad Bin Qasim v. Messrs Zymotic Diagnostic International, Faisalabad 2007 PTD 2623.

5. The respondent's case on the other hand remains that so-called process done by the petitioner are only to the extent of putting colour on the pencil and printing of its brand name etc. The product even before colouring and printing or adding rubbertips can be used. The process is value addition process and even without the same, the so-called raw blanks can be used as a full-fledge writing article. The respondents, therefore, urged for rejection of this petition.

6. Since a small question of law and facts is involved in this case, we would like to dispose of the same for which the case is formally admitted.

7. So far as the factual controversy is concerned, the same is ignored for the time being so as to leave room for the departmental officer to look into the matter again. However, since no notice has not been served on the petitioner before assessment, the Assistant Collector Customs is directed to reassess the same within two weeks of the service of this order, and also for the reasons that apparently the sequential order provided in section 25 has not been adopted as per instructions in the judgment reported as 2007 PTD 2623 by the Supreme Court ofPakistan in the case re; Collector of Customs Port Muhammad Bin Qasim v. Messrs Zymotic Diagnostic International, Faisalabad". The Assessing Officer is directed to re-assess the same within two weeks of the service of this order. He shall obviously confront the base of his estimate to the petitioner before deciding the customs duty chargeable on the product.

Disposed of accordingly.

H.B.T./F-3/LOrder accordingly.