BASHIR PIPE INDUSTRIES (PVT.) LTD. VS FEDERATION OF PAKISTAN, 2019 PTD-LAHORE-HIGH-COURT-LAHORE 980 (2019)

Customs Act (IV of 1969)---

----Preamble---Departmental testing of imported materials---Conflicting laboratory results---Multiple tests to resolve conflict---Scope---Any procedure not specifically prohibited by law was permitted and the Department in order to satisfy itself was fully justified to refer such a matter to another test in order to resolve conflicting opinion of previous tests.

Islamia University Bahawalpur v. Muhammad Hameed Bhatti and another 2004 SCMR 649; Additional Collector-II Sales Tax, Lahore v. Messrs Abdullah Sugar Mills Ltd. and others 2003 SCMR 1026; Muhammad Iiaz Ahmad Chaudhry v.Mumtaz Ahmed Tarar and others 2016 SCMR 1 and H.M. Saya and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 rel.

Zahid Imran for Appellant.

ORDER

Through this Intra Court Appeal, filed under Section 3 of the Law Reforms Ordinance,1972,theappellanthascalledinquestionthe order dated 03.11.2017 passed by learned Single Judge inChambers, whereby constitutional petition, filed by the appellant,was dismissed.

2.The brief facts of the case are that the appellant imported a shipment of "Prime Hot Rolled Alloy Steel Sheet in Coils" (H.S. Code:7225.3000) having chemical composition according to the Material Analysis Reportissued by the manufacturer at the country of origin to contain the element "Boron" of a greater percentage than 0.0008% as mentioned in Chapter 72 Note (1)(f) in Custom Tariff falling under category of "other alloy steel" the goods arrived via M/V Hony Future V. 1536 VIA LCs Nos.13421LCO19347 and 151NSU004403892. The department informed the appellant that in the test report conducted by KRL Laboratory, Rawalpindi, the percentage of Boron was found less than 0.0008% and the goods imported by the appellant did not conforms to the description mentioned by it and conveyed their intention to encash bank guarantees provided by the appellant. Through order dated 05.09.2016 passed in W.P. No. 37189 of 2015, filed by the appellant, the matter was got referred to HEJ Research Institution of Chemistry, Karachi where the test report dated 03.05.2017 confirmed the claim of the appellant but instead of deciding in favour of the appellant, the Deputy Collector Customs vide letter dated 23.07.2017 directed the appellant to submit pay order amounting to Rs.30,000/-foreachsample as testing fee in favour of Industrial Analytical Centre for yet another test. The said order was challenged by the appellant by filing constitutionalpetitionwhichhasbeendismissedvideimpugnedorder.

3.It is claimed by the appellant that as the Mill Test Certificate ("MTC") issued by the foreign supplier has been found to be correct by the HEJ Research Institution of Chemistry, Karachi, therefore, there is no justification for further testing and the demand of the respondent department for retesting the consignment is without any lawfulauthority.

4.When questioned as to under what law the department is prohibited from retesting the material to determine the conflicting opinion between the two earlier tests conducted by the afore referred laboratories, the appellant could not refer to any substantive provision of law in support of its claim. It is settled by now that any procedure that is not specifically prohibited by the law, is permitted. Reliance in this regard is placed on the judgments reported as Islamia University Bahawalpur v. Muhammad Hameed Bhatti and another (2004 SCMR 649), Additional Collector-II Sales Tax, Lahore v. Messrs Abdullah Sugar Mills Ltd. and others (2003 SCMR 1026), Muhammad IjazAhmad Chaudhry v.Mumtaz Ahmed Tarar and others (2016 SCMR 1) andH. M.SayaandCo.v.WazirAliIndustriesLtd.(PLD1969SC65).Consequently,therespondentdepartment,inordertosatisfyitself,wasfullyjustifiedtoreferthematterforyetanothertestas to the actual description of the products imported by the appellant for resolving the conflicting opinion of tests earlier conducted by the two laboratories. Resultantly, no ground for interference is made out.

5.For what has been discussed above, this appeal being devoid of any merit is dismissed.

KMZ/B-2/LAppeal dismissed.