MUHAMMAD AMER SAEED VS MODEL CUSTOMS COLLECTORATE OF CUSTOMS (EAST), 2016 PTD-KARACHI-HIGH-COURT-SINDH 2910 (2016)

Customs Act (IV of 1969)---

----Ss. 25-A & 218---Customs General Order, 12 of 2002, dated 15-6-2002, para 2---Customs General Order (2014-2015), para 2---Import Policy Order, 2013, Appendix-G---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Valuation Ruling---Retrospective effect---Grievance of importer was that authorities declined import of polished granite slabs from India on the plea of change in valuation ruling---Validity---Goods in question had been released and assessed by authorities under HS Code 6802.2300 and for such purposes initially Valuation Ruling was issued in year 2011---Subsequently another Ruling bearing No.667 of 2014 was issued which specifically notified the goods in question being imported from India under HS Code 6802.2300---Long standing departmental practice being followed could not be deviated in an abrupt manner especially in respect of goods which had already been imported and by virtue of any such change in departmental practice would remain no longer importable---Plaintiffs had been importing goods in question since long and same were assessed under a Valuing Ruling issued under S. 25-A, Customs Act, 1969, nor their importability was in dispute prior to issuance of Assessment Alert, as those were being assessed and released under HS Code 6802.2300, which was not mentioned in the negative list notified through Appendix-G of Import Policy Order, 2013---Even if new HS Code was to be determined, the same could only be applied prospectively and not retrospectively---High Court directed the authorities to immediately release consignments in question under previously applied HS Code 6802.23000, as no public notice was issued as required in terms of para 2 of Customs General Order(2014-2015 Edition), whereby procedure and methodology for Ruling issued by Classification Center were notified in Federal Board of Revenue---High Court restrained the authorities from proceeding further for adjudication of past consignments released under HS Code 6802.2300, pursuant to Assessment Alert dated 22-4-2016---Application was allowed in circumstances.

Sadia Jabber v. Federation of Pakistan PTCL 2014 CL 537 Sadia Jabber and 3 others v. Federation of Pakistan and others 2012 SCMR 617 = 2012 PTD 898; Collector of Customs v. Khas Trading 2015 PTD 22 and Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 ref.

Khawaja Shamsul Islam for Plaintiffs.

Kashif Nazeer assisted by Zubair Shah, Deputy Collector (Appraisement) East for Defendants.

Date of hearing: 14th July, 2016.

ORDER

MUHAMMAD JUNAID GHAFFAR, J.---Briefly the facts as stated are that the plaintiffs imported polished granite slabs from India which used to be cleared by the defendants under HS Code 6802.2300 continuously for more than a decade. It is further stated that the Valuation Department had also issued a Valuation Ruling bearing No. 667 of 2014 dated 31.3.2014 and polished granite slabs were mentioned in the said Ruling against HS Code 6802.2300. Such ruling was issued in continuation of an earlier ruling bearing No. 315 of 2011 dated 13.5.2011 which also notified polished granite slabs against HS Code 6802.2300. It is the case of the plaintiffs that when recently they imported their respective consignments as detailed in para 4 of the plaint, it came to their knowledge that defendant No.1-A had issued an Assessment Alert dated 22.4.2016 in which it was observed that the correct HS Code of the goods in question is 6802.9300 and not 6802.2300 and as a consequence thereof, though there was no change in the rate of duty and taxes, the goods no more remained freely importable from India as per Appendix "G" of the Import Policy Order, 2013. It is further stated that pursuant to such assessment alert, the Director Valuation had though shown his reservation in respect of such determination of classification of the goods under HS Code 6802.9300, had withdrawn Valuation Ruling bearing No. 667 of 2014, whereas, defendant No.5 and his subordinate officers also issued an Audit Observation dated 11.5.2016 in respect of various consignments already imported and cleared from Customs by the plaintiffs. Thereafter on the directions of FBR, the matter was referred to Classification Committee who has also issued its Classification opinion dated 18.5.2016 that the goods in question i.e. polished granite slabs are to be classified under HS Code 6802.9300. Instant Suit has been filed by impugning the Assessment Alert, Audit Observation(s) as well as opinion of the Classification Committee, whereas, through listed application the plaintiffs seek release of their consignments already arrived at Port and withheld for clearance.

2.Mr. Khawaja Shamsul Islam learned Counsel for the plaintiffs has contended that Assessment Alert dated 22.4.2016 has been issued without any lawful authority and jurisdiction as the Collector of Customs is not empowered to issue any such alert / directions to determine the alleged classification on his own. Per learned Counsel in terms of Para 2 of CGO 12 of 2002 dated 15.6.2002 a complete mechanism/methodology in respect of classification disputes has been provided, whereby, the matter is to be referred to the Classification Centre and thereafter if the Collector agrees to such classification, has to issue a Public Notice. He further submitted that in this matter the Collector has first given his opinion, and thereafter on the instructions of FBR, the matter was referred to the Classification Centre who has issued its opinion dated 18.5.2016 in complete haste and without affording any proper opportunity of hearing to the plaintiffs. Per learned Counsel the Valuation Department had already issued a Valuation Ruling, whereas, the assessment alert was also disputed by the Director Valuation, and therefore, it cannot sustain. Learned Counsel has further contended that in view of judgment in the case of Sadia Jabber v. Federation of Pakistan reported as (PTCL 2014 CL 537) and upheld by the Hon'ble Supreme Court in Sadia Jabber and 3 others v. Federation of Pakistan and others (2012 SCMR 617 = 2012 PTD 898), the impugned Assessment Alert is liable to be set aside. Per learned Counsel since admittedly no Public Notice has been issued as required under Para 2 of CGO 12 of 2012, the consignments already arrived at Port are entitled to be cleared under the previous HS Code i.e. 6802.2300. He has also relied upon the case of Collector of Customs v. Khas Trading [2015 PTD 22].

3.On the other hand, Mr. Kashif Nazeer Advocate ably assisted by the departmental representative has contended that instant Suit is not maintainable, as the plaintiffs ought to have availed the alternate remedy against the decision of the Classification Committee, whereas, the plaintiffs have also failed to fulfill the mandatory requirements of Section 218 of the Customs Act, 1969. Per learned Counsel the Assessment Alert is in fact a Public Notice issued by the Collector of Customs, who is empowered to do so, and therefore, no further notice has been issued after decision of the Classification Committee. He has further contended that polished granite slabs which have been further worked and not simply cut and sawn are correctly classifiable under HS Code 6802.9300 and are not importable from India under Appendix "G" of the Import Policy Order, 2013. He however submitted that department had referred the matter to FBR for taking up the issue with Ministry of Commerce, who in turn directed to refer the matter to the Classification Centre, whereas, the Collector was of the opinion that the Ministry of Commerce be approached through FBR for release of consignment(s) in question so that the grievance of the plaintiff be redressed.

4.Notice was ordered on the listed application and as per bailiff report dated 1.7.2016 all the defendants including the private defendants Nos.6 to 8 have been served, however, none has affected appearance on their behalf. I have heard both the learned Counsel as well as Departmental Representative and perused the record. It appears to be an admitted position that polished granite slabs were being assessed by the department under HS Code 6802.2300 since long and even in the period when the Ministry of Commerce had notified, a positive list of goods importable from India through, Appendix "G" of the then Import Policy Order. Such goods were admittedly notified vide S.R.O. 766(I)/2009 dated 4.9.2009 in the then Appendix "G" at Serial No. 1227 under HS Code 6802.2300 in the following manner.

S. No.PCT CodeDescription

12276302.2300Granite blocks/ tiles polished

It further appears that a Valuation Ruling was also in field in respect of such goods being imported from India. To that effect, there appears to be no dispute nor the Counsel for the defendants had made any submission to the contrary. Thereafter suddenly on 22.4.2016 the Collector of Customs East/defendant No. 1-A had issued an Assessment Alert which reads as under:--

"GOVERNMENT OF PAKISTAN

MODEL CUSTOMS COLLECTORATE OF APPRAISEMENT (EAST)

CUSTOMS HOUSE, KARACHI

No. 218/ KAPE/DC-IV/2016Dated 22.4.2016

ASSESSMENT ALERT

Subject:INCORRECT CLASSIFICATION OF POLISHED GRANITE UNDER PCT CODE 6802.2300

HS Code 6802.2300 of Pakistan Customs Tariff covers that Granite which fulfills the condition of second single dash "Other" heading i.e. "worked monumental or building stones and articles thereof, simply cut or sawn". The third single dash heading under PCT Code 68.02 i.e. 6802.9300 "Other" covers that Granite which is not just simply cut and swan, but also further worked, including polishing etc. as such, 'Polished Granite', which has further been worked upon and is more than simply cut or swan, is correctly classifiable under PCT Code 6802.9300. It is further pointed out that Granite that falls under PCT Code 6802,9300 is not importable from India under Appendix "G" of Import Policy Order, 2013, issued vide SRO 193(I)/2013 dated 08.03.2013. Scrutiny of data of imports under description 'Polished Granite' revealed that the same is being incorrectly classified, assessed and cleared under PCT Code 6802.23.00, which is otherwise not hit by Import Policy Order. It has also been observed that the Directorate General of Valuation, Karachi, has issued a Valuation Ruling for Polished Granite vide No. 667/2014 dated 31.3.2014, which incorrectly classifies this item under PCT Code 6802.2300. The Directorate has also been requested to make necessary corrections/ amendments, accordingly.

2. All field formations are requested to kindly ensure correct classification of polished granite and check importability aspect under Import Policy Order, 2013, accordingly.

Sd/-

(Ashhad Jawwad)

Collector"

5.It further appears that pursuant to this Assessment Alert the Director Valuation on 3.5.2016, though withdrew Valuation Ruling No. 667 of 2014 dated 31.3.2014, however, while doing so he categorically observed that the Directorate General of Valuation is of the considered opinion that prima facie the "polished granite slabs" are correctly classifiable under PCT 6802.2300, however, since it is not the assignment of the Valuation Department to determine correct classification of the goods, he withdrew the same and asked the concerned Collector to determine the classification on its own. Similarly the Director of Post Clearance Audit also issued Audit Observation(s) dated 11.5.2016, to various plaintiffs, on the basis of the Assessment Alert and asked the plaintiffs to clarify as to why the goods in the past were being assessed and released under HS Code 6802.2300 instead of 6802.9300. Perusal of the record further reflects that after issuance of Assessment Alert the defendant No. 1-A wrote a letter dated 6.5.2016 to FBR for taking up the matter with Ministry of Commerce in respect of the consignments already arrived at Port and withheld for clearance pursuant to issuance of the Assessment Alert, upon which FBR vide its letter dated 12.5.2016 directed defendant No. 1-A to refer the issue to the Classification Center for determination of appropriate HS Code in consultation with relevant stake holders before proceeding further in the matter. On 18.5.2016 the Classification Center issued the impugned opinion for classifying the goods in question under HS Code 6802.2300.

6.Insofar as determination of a Classification Ruling under Para 2 of Customs General Order No.12 of 2002 is concerned, it provides a complete mechanism for resolution of a Classification dispute and issuance of a proper ruling as a consequence thereof. It has been provided in Para 2 that in order to implement the recommendations of the World Customs Organization regarding introduction of the programme for binding pre-entry classification, information and improvement of Tariff Classification Work and related infrastructure, it has been decided to introduce a procedure in this regard. It further provides that routine classification issues will continue to be decided by the respective Collectors at their own level, whereas, complicated Classification disputes will be referred to the Classification Centre established at the Collector of Customs (Appraisement), [Karachi (Now Collector East)] and in addition to deciding the classification disputes, the centre will also issue binding pre-entry classification rulings on the specific request of an importer. Para 2 further provide various functions to be performed by the Classification Centre and the relevant applicable part of such Methodology of Ruling is reproduced as under:--

"2. Methodology for Rulings.---In order to implement the recommendations of the World Customs Organization regarding the introduction of the programme for binding pre-entry classification information and improvement of Tariff Classification Work and related infrastructure. It has been decided to introduce the following procedure:--

(i)-------------------

(ii)-------------------

(a)-------------------

(b)-------------------

(c)-------------------

(d)-------------------

(e)-------------------

(f)-------------------

(g)-------------------

(h)-------------------

(i)-------------------

(iii) The classification center shall be run and managed by a classification committee to be constituted by the Collector of Customs, Appraisement. The said committee shall be headed by an Additional Collector and consist of as many members as committee may co-opt representatives of other Collectorate. The committee may also call specialists and experts for expert opinion in determining classification of an item. The committee will meet at least once in a month but may hold as many meetings as required to dispose of the work.

(iv)

(a)-------------------

(b)-------------------

(c)-------------------

(d)-------------------

(e)-------------------

(v)----------------------

(vi)The classification determining by the Committee shall be subject to approval by Collector of Customs Appraisement. The Collector may agree with the findings of the committee, change the classification or refer back the case to the committee for de novo consideration. After approval by the collector, the ruling shall be communicated in writing to the importer. and all Customs Collectorate as soon as possible but not later than then ten days of the approval by the Collector.

(vii)-------------------

(ix)-------------------

(a)-------------------

(b)-------------------

(viii)-------------------

NOTE:--The Collectorate of Customs Appraisement, Karachi will provide computer, internet, office equipment, furniture, space, personnel and other technical material, financial and human resources as may be required for the smooth running of the classification center. The classification ruling so issued by the center will be widely circulated in the form of a public notice amongst the trade, industry and customs organizations in the country."

7.Perusal hereinabove reflects that the classification so determined by the Classification Committee shall be subject to approval by the Collector of Customs (Appraisement) [Now Collector (East)] and the Collector may agree with the findings of the Committee or may change the classification or refer back the case to the Committee for de novo consideration. It further provides that after approval by the Collector the ruling shall be communicated in writing to the importer and all Customs Collectors as soon as possible, but not later than within 10 days of the approval by the Collector. It further provides that Classification Ruling issued by the Centre will be widely circulated in the form of a Public Notice amongst the trade, industry and Customs organizations in the country. This appears to be an admitted position that firstly no Public Notice as directed in Para 2 of the Customs General Order No.12 of 2002 has so far been issued for circulation amongst the trade and industry in respect of the alleged classification of the goods in question. Secondly and more surprisingly, it also appears to be an admitted position that the Collector/defendant No. 1-A issued the Assessment Alert dated 22.4.2016 much prior to the opinion rendered by the Classification Committee on 18.5.2016. Notwithstanding that such classification opinion was given by the Classification Committee within a span of merely five days, whereas, FBR had specifically directed to consult the stake holders, however, this Court fails to understand and comprehend as to how the Collector / defendant No. 1-A could issue an Assessment Alert. Learned Counsel for the defendants well as the departmental representative were confronted in this regard and were repeatedly asked to assist the Court as to under what provision of the Customs Act or any rules thereof, the subject Assessment Alert had been issued by the Collector / defendant No.1A. Both of them had no answer to such query of the Court. It appears to be an admitted position that the Classification Committee headed by the Additional Collector of Customs, works under the control and supervision of Collector/defendant No. 1-A. In such a situation it is out of question to even think that the Additional Collector, presiding over the Classification Committee, could pass and or give any decision on merits of the case independently once the supervisory officer / Collector of Customs who has to approve such classification decision had already given his opinion. Therefore, the Assessment Alert issued much prior to the meeting and the decision of the Classification Committee cannot sustain. In my opinion such act on the part of the Collector / defendant No.1-A either appears to be tainted with mala fides, or for some extraneous reasons, more so when there is no difference in the rate of duty and taxes in both HS Codes i.e. 6802.2300 and 6802.9300. The only consequence is that if the goods are classified under the latter heading, they would no more be freely importable from India, and would be treated as banned goods. Such conduct on the part of Collector of Customs/defendant No.1-A does not seems to be appropriate, and in accordance with law, being unlawful and against the directions of FBR as contained in CGO 12 of 2002 and apparently appears to be motivated. No justification has come forward for issuing the impugned Assessment Alert by the said Collector / defendant No. 1A, nor any provision of law was cited to justify such an act.

8.It is also a matter of fact that since long goods in question mere being released and assessed by the defendants under HS Code 6802.2300 and for such purposes initially Valuation Ruling was issued in the year 2011 and subsequently another Ruling bearing No. 667 of 2014, was issued which specifically notified the goods in question being imported from India under HS Code 6802.2300. It is a settled proposition of law that a departmental practice being followed since long cannot be deviated in an abrupt manner, specially in respect of goods which have already been imported and by virtue of any such change in the departmental practice would remain no longer importable. The plaintiffs before this Court admittedly have been importing these goods since long and neither a dispute in respect of Valuation existed as the same were being assessed under a Valuation/Ruling issued under Section 25A of the Customs Act, nor their importability was in dispute prior to issuance of Assessment Alert, as they were being assessed and released under HS Code 6802.2300 which is not mentioned in the negative list notified through Appendix "G" of Import Policy Order, 2013. In the circumstances, even if a new HS Code was to be determined, the same could only be applied prospectively and not retrospectively. Even the Import Policy provides in the proviso to Para 4 of the said Policy that any amendment brought in this Order from time to time shall not be applicable to such imports where Bill of Lading (B/L) or Letters of Credit (L/C) were issued or established prior to the issuance of amending Order. The precise idea is that if any goods are notified to be banned or restricted, then such restriction would apply prospectively and not on the goods for which letters of credits have been established and or bills of lading have been issued. This is more so for the reason that if any importer has entered into any binding contract with its supplier, any change in classification and or restriction on the importability shall not effect such past and closed transaction.

9.Learned Counsel for the plaintiffs has vehemently argued that insofar as the plaintiffs are concerned, they were not provided any proper opportunity to appear before the Classification Committee and defend their case. He has contended that they had submitted a detailed written reply to the Committee which was received by them on 19.5.2016 and in support he has referred to Annexure H/1 and per learned Counsel the Classification Committee without examining the contents of their reply has given its decision on 18.5.2016. In order to resolve this controversy, I had to summon the original file of the Classification Committee, perusal whereof reflects that the contention of the learned Counsel for the plaintiffs is partly correct. Insofar as the plaintiffs and their representatives as well as the representatives of their association are concerned, the record reflects that they were present before the Classification Committee. Record further reflects that proper notices were issued to various Importers as well as their Associations through courier service, however, insofar as their written reply is concerned, it appears to be admitted position that such reply was received by the Classification Committee on 19.5.2016, whereas, the meeting was convened on 16.5.2016 and the decision was passed on 18.5.2016. Therefore, the contention that the Classification Committee finalized the matter in haste appears to be correct as FBR had directed the defendant No. 1-A to refer the matter to the Classification Committee on 12.5.2016, where after, notice for meeting was issued. Perusal of the record further reflects that the Additional Collector who normally heads the Classification Committee had shown his inability to participate in the meeting of the Classification Committee being convened in respect of the present dispute on the ground that the matter pertains to Group-IV which is within his jurisdiction as an Additional Collector, and since he had already endorsed the issuance and processing of the Assessment Alert dated 22.4.2016, therefore, according to him it would be against the norms of natural justice to head such Committee for a matter which he had already recommended for Classification under HS Code 6802.9300 in his capacity as an Additional Collector in-charge of the said Group. Such conduct on the part of the said Additional Collector is really appreciable. However, it is regretted that the Collector in-charge/ defendant No.1-A who heads the Classification Committee as a final authority to agree with the recommendations of the Committee and or reject such opinion, did not bother to act in a judicial manner. He first issued an Assessment Alert on 22.4.2016; withheld clearance of all the consignment abruptly and then approached FBR, for taking up the matter with Ministry of Commerce, who in turn directed him to first refer the matter to the Classification Centre before proceeding any further. As soon as FBR directed that the matter be referred to the Classification Centre, the Assessment Alert lost its efficacy and remained no more in field. Proprietary demanded that the said Collector / defendant No. 1-A ought not to have participated in the matter any further, and could have requested FBR to refer the matter to any other Collector for finally deciding the dispute through the Classification Centre, however, he chose not to do so. Record further reflects that the decision of the Classification Committee was not unanimous as out of the seven members of the Committee, three of them agreed with the contention of the plaintiffs and ruled that the Classification of the subject goods ought to have been made under HS Code 6802.2300. The three members were namely Mr. Attaullah Shabbir, Deputy Collector, Mr. Muzaffar Rizvi, Principal Appraiser and Mr. Bahadur Khan, Principal Appraiser. Their opinion was as under:--

"i) That the impugned goods are not in finished / ready to use form rather they are only polished / semi-finished form and further processing is required to make them finish product, thus they are more aptly classifiable under 6802.2300, while goods of finished or ready to used form articles are Classifiable under 6802.9300.

ii) Second the heading 6802.2300 used words "simple cut or sawn with flat or even surface", the flat or even surface cannot be achieved without polishing of the Granite thus polishing is the process to achieve even or flat surface, therefore 'Polished Granite Slabs' are classifiable under 6802.2300."

However, when the decision dated 18.5.2016 issued by the Classification Centre is examined; it appears that the view/opinion of the three learned members as above has been left out and there is no mention or discussion of the dissenting note of the three members of the Committee. It further appears that even no reasoning has been assigned in the decision of the Classification Committee for overruling and or not agreeing with such observations of the three learned Members. It has not been explained as to why such omission was made and was it purposely or otherwise. Such conduct on the part of the Presiding Officer of the Classification Committee as well as the Collector/defendant No. 1-A needs to be further probed. Being public officers they are required to act strictly in accordance with law and are not supposed to exercise the discretion vested in them by virtue of their office so as to undermine or prevail upon merits of a case. Their conduct should be transparent and in accordance with rules and regulations as well as law, failing which the public confidence in their office would be lost and would create anarchy and destruction in good governance.

In terms of section 223 of the Customs Act, 1969, all Officers of Customs employed in the execution of the Act shall observe and follow the orders, instructions and directions of the Board, except interference with the discretion of the Officers performing Quasi-Judicial functions. Admittedly, assessment alert was not issued by Defendant No.1-A as a Quasi-Judicial Officer, but as an Officer performing administrative and or executive functions.

In the circumstances, I am of the view that the case of defendant No. 1-A/and the Additional Collector of Customs who presided over the Classification Committee is to be referred to FBR for conducting an inquiry and taking an appropriate action, if so warranted. The FBR authorities must see that as to how an Officer of such high level in the field Collectorate has blatantly violated its directions already notified through Paras 2 and 74 of CGO 12 of 2002 if respect of Methodology of Rulings and prospective application of Classification Rulings, by arriving at his view and superimposing himself on the Classification Committee indirectly through assessment alert on 22.4.2016, whereas, in law he was required to himself refer the matter either to the Classification Committee or seek advice from FBR. Accordingly office of this Court is directed to send copy of this Order to Chairman FBR for necessary action as discussed in this judgment who shall report compliance within 60 days to this Court through M.I.T-II who is directed to place the same before the Court for perusal.

10.The Hon'ble Supreme Court in the case of Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353), had the occasion of dealing with sudden change of classification of goods and the effect of departmental practice. In that case the appellant's contention was that scrap and waste of iron and steel being imported for re-rolling purposes had always been classified under PCT Heading 73.03 of the PCT Schedule, whereas, such longstanding practice was suddenly reviewed by the Central Board of Revenue vide its Circular dated 21.3.1969 whereby, it was ruled that such goods in question will not be classified under Heading 73.03, but separately in the appropriate respective headings. The Hon'ble Supreme Court while deciding the appeals of the importers on merits came to the conclusion that since the goods in question were admittedly being classified under PCT 73.03 as a longstanding practice, and therefore, it would be extremely unfair to make a departure after a lapse of many years and thereby disturb rights that have been settled by a long and consistent course of practice. The Hon'ble Supreme Court further held as under:--

8. The interpretation having been consistently followed by the department and it having become a long-standing practice had almost acquired the force of law. The practice could not, therefore, be lightly departed from more so because on its faith 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. The directive of the Central Board of Revenue in its Circular letter, dated 21st March, 1969, had the effect of making the purpose for which the goods were imported rather than the nature of goods as the basis for classification for the goods. This was not the practice when the goods were imported. Until then such imported goods came within the heading 73.03. No sufficient grounds existed for not treating the goods which were imported in these cases according to the past practice. (Emphasis Supplied)

9. It may be mentioned that the matter has now been placed beyond any dispute by issuance of the Circular of the Central Board of Revenue on the subject of "Nationalization of duty, structure on various items iron and steels" dated 1st February, 1988 whereby, it has been clarified that the Government has decided that such re-rolling scrap will now be assessed in the respective P.C.T. heading and not on average values as was the practice in the past. Accordingly, in future, such disputes will arise. However, the imports made in these cases are liable to be decided in accordance with the past practice."

11.Insofar as merits of the Classification determined by the defendants is concerned, though a Public Notice is yet to be issued for giving effect to such determination, however, after going through the opinion of the Classification Committee and the material placed on record, it appears that this matter requires leading of evidence on the part of the plaintiffs as well as defendants and it would not be appropriate to finally determine the Classification of the goods in question at this stage of the case, when merely an injunction application is being decided. The question that whether the goods being imported by the plaintiffs have been further worked and or polished to the extent that they are to be regarded as goods falling under HS Code 6802.9300 instead of 6802.2300, is a question for which at an appropriate stage the samples and or physical attributes of the goods may be required to be examined. It cannot be finally determined on the legal plane. In the circumstances, this Court has refrained itself from giving any final decision as to the correct Classification of the goods which would be determined in accordance with law at the trial of the Suit. However, insofar as the consignments already imported and as detailed in the plaint are concerned, since admittedly no Public Notice has been issued as required under Para 2 of the Methodology of Rulings notified by FBR, the same cannot be withheld for clearance on the basis of merely the opinion of the Classification Committee which is yet to be notified. Similarly Para 74 of CGO 12 of 2002 provides that departure from existing practice in respect of Tariff Classifications would be having prospective effect. Moreover, as discussed hereinabove, the procedure adopted by the Collector/defendant No. 1-A is contrary to law and appears to be based on mala fide; therefore, the Assessment Alert cannot be acted upon. Similarly, the issuance of Audit Notices by the Post Clearance Audit Department also appears to be motivated at the behest defendant No. 1-A and his Assessment Alert dated 22.4.2016. Such conduct of the official defendants has resulted in withholding of Plaintiff's consignments at Port for no fault of theirs, which has incurred unnecessary demurrage/detention charges for which they are entitled for appropriate relief in terms of Section 14A of the Customs Act, 1969. Accordingly, in view of hereinabove facts and circumstances of the case and the discussion hereinabove on 14.7.2016 listed application was allowed by means of a short order in the following terms:--

"Mr. Kashif Nazeer, Advocate has made his submissions. For the reasons to be recorded later on, listed application is allowed in the following terms:

i. Since admittedly, no Public Notice has been issued as required in terms of Para 2 of Customs General Orders (2014-2015 Edition), whereby, the procedure and Methodology for Rulings issued by the Classification Centre has been notified by FBR, the defendants are directed to immediately release the consignments in question as covered by instant Suit under previously applied HS Code i.e. 6802.2300.

ii. Since apparently, the consignment(s) have been withheld at Port due unlawful, wrong and unjustified act on the part of the defendants, Delay and Detention Certificates be issued to the plaintiffs in terms of Section 14A of the Customs Act, 1969, and they shall facilitate and make all efforts that such Delay and Detention Certificates are honored by the respective Ports/Terminal Authorities.

iii. The Assessment of all these consignments as above should be made on the basis of Valuation Ruling No.667/2014 dated 31.03.2014.

iv. The defendants are permanently restrained pending final adjudication of this Suit from proceeding any further for adjudication of past consignments released under HS Code 6802.2300 pursuant to the Assessment Alert dated 22.4.2016 issued by Defendants Nos. 1 and 1A, and Audit Observation dated 11.05.2016 issued by Defendant No.5 and or its sub-ordinate officers."

12.Above are the reasons for such short order. Office is directed to comply with directions as contained in Para 9 hereinabove.

MH/M-136/Sindh Application allowed.