FEDERATION OF PAKISTAN through Secretary, Revenue Division, F.B.R. VS MILLENNIUM PHARMACEUTICAL COMPANY, KARACHI
2011 PTD 690
[Supreme Court of Pakistan]
Before Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil ur Rehman Ramday, JJ
FEDERATION OF PAKISTAN through Secretary, Revenue Division, F.B.R. and others
Versus
Messrs MILLENNIUM PHARMACEUTICAL COMPANY, KARACHI and others
Civil Petition Nos. 377-K, 398-K and 399-K of 2010, decided on 13/07/2010.
(On appeal from the, order dated 22-6-2010 passed by the High Court of Sindh, Karachi in C.P. No. D-1468, D-1466 and D-1469 of 2010).
Customs Act (IV of 1969)---
----S. 25---Constitution of Pakistan, Art. 185(3)---Determination of customs value of goods---Respondent company imported the goods and consignments so received were declared under PCT heading 3003.9010 whereas the Customs Authorities applied PCT heading 2106.9090---High Court under constitutional jurisdiction had opined that goods were covered by PCT heading 2930.9000, which was different to those respectively asserted by the respondent and Customs Authorities and ordered that consignments be released under said PCT heading---Representative of respondent company was hut able to satisfactorily point out as to on what basis that respondent formed the view that assessment orders were illegal and void---On perusal of impugned order, it could not be found on what basis High Court was of the view, though tentatively, that the consignment would be covered under PCT heading 2930.9000---Question as to which of the PCT heading was relevant being disputed, required enquiry for appropriate determination---Impugned orders were set aside by converting petitions into appeals by Supreme Court and appeals were allowed.
Raja Muhammad Iqbal, Advocate Supreme Court for Petitioner (in all cases).
Shahzad Saleem, Executive Officer for Respondent No.1 (in all cases).
Date of hearing: 13th July, 2010.
JUDGMENT
GHULAM RABBANI, J.---The above 3 petitions, involving common questions of facts and law, were disposed of by our short order, dated 13-7-2010 in the following terms:--
"for the reasons to be recorded later the impugned orders, dated 22-9-2010 passed by the High Court of Sindh, Karachi, are set aside and listed petitions are converted into appeal and allowed".
2. Briefly stated the facts of the case are that the respondent No.1-Company had imported the Orthrocap/calgo tablest said to be herbals and natural formulation for the treatment of calcium deficiency etc. The consignments so received were declared under PCT heading 3003.9010; whereas, the Customs Authorities, regarded the same a food supplement, applied PCT heading 2106.9090 vide two separate orders passed on 28-4-2010 and 3-5-2010. The respondent No.1 challenged the order dated 28-4-2010 by way of Constitution Petition No. D-1468 and the order dated 3-5-2010 by separate Constitution Petitions Nos. D-1466 and D-1469 of 2010. The said petitions were heard by a Division Bench, who opined that in their view, perhaps, the goods were covered by yet another PCT heading 2930.9000 different to those respectively asserted by the respondent No.1 and the Custom authorities. Thus, ordered that the consignments be released under the said PCT heading after payment of duty and observed-that since their finding was tentative, parties would be free to pursue their case before any other forum vide two separate orders dated 22-6-2010 impugned herein.
3. In his arguments learned counsel for the petitioners contended that the respondent-Company had earlier filed before the High Court of Sindh Constitution Petition No.D-1023 of 2010 which was disposed of with directions to the Customs Authorities to assess the goods within 10 days and to determine as to whether the same are fit for human consumption or not and also to release the consignments upon payment. Consequently, Assistant Collector Customs, MCCA-1 and the Assistant Collector, Processing Group I and II vide their orders dated 28-4-2001 and 3-5-2010, classified the goods under PCT heading 2106-9090 and valued the subject consignments accordingly, however, the respondent No.1, instead of challenging the said order before appellate forum, wrongly preferred to file the above noted three constitution petitions which were not maintainable hence the impugned orders merited to be reversed.
4. On the other hand, representative of the respondent No.1 in his submissions insisted that the goods imported were covered by PCT heading as claimed and that since the orders of Assistant Collector were illegal and void, the respondent rightly preferred to invoke the constitutional jurisdiction instead of filling an appeal.
5. Before us, representative of respondent No.1, was not able to satisfactorily point out as to on what basis the respondent formed the view that the assessment orders were illegal and void. Also, on perusal of the impugned order we would not find as to on what basis the learned members of the Division Bench were of the view, though tentatively, that the consignment would be covered under PCT heading 2930-9000. Needless to observe the question as to which of the PCT heading was relevant being disputed required enquiry for appropriate determination.
6. Considering the above facts and circumstances, we set aside the impugned orders, converted the petitions into appeals and allowed the same vide our short order noted above and these are the reasons for the same.
H.B.T./F-9/SCAppeals allowed.