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‑‑ Art. 199‑‑Writ petition‑Plea of mala fides neither raised in appeal nor in revision‑Not available in writ proceedings.

‑‑ Art. 199‑Writ proceedings‑Petitioner basing his plea of mala fides on disappearance of two pages from relevant departmental file and claiming to have obtained photostat copies of such pages‑Not under standable how could petitioner obtain copies of such confidential documents and how could cause of disappearance of such documents be ascertained ‑Mala fides, hence, held, cannot be inferred merely from disappearance of two pages from relevant file.

Art. 199‑Writ proceedings‑Collector and Government preferring first report out of two conflicting reports made by Central Testing Laboratory about quality of yarn exported by petitioner‑Government giving no reason for such preference but Collector giving reasons for accepting first and not accepting second report‑No material before Court to hold such preference not well founded‑Matter technical and findings of Collector and Government concurrent and based on evidence‑Report of foreign buyer with regard to quality of yarn not binding on department‑‑Petition turning on disputed questions of fact and case not of no evidence or of perverse appreciation of evidence‑Petition dismissed.

Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others

PLD1973SC236re1.

Habibur Rehman for Petitioners.

Naimuddin, Standing Counsel (on Court's Notice).

DORAB PATEL, J.‑The petitioner manufactures and exports cotton yarn, and the dispute in the petition relates to yarn exported by it to Poland. Yarn is an excisable item under the Central Excise and Salt Act, 1944 and an exporter of cotton has first to pay duty on the cotton manufactured by it and then obtain a refund on the quantity of yarn actually exported. We are informed by both the learned counsel that a form known as the form A R form has to be filled by exporters of cotton yarn in order to obtain a refund of the duty paid, therefore, the petitioners had submitted four A R forms for the yarn exported by them to Poland. The particulars of those forms are as follows :‑

No. & Date of A. B. 4 G. T. Test Reports.

(1) 2/70 dated 9‑1‑70 38s

‑do‑ 34s

(2) 50/69 dt. 15‑2‑69 21s

‑do‑ 20s

(3) 1/70 dt. 8‑1‑70 33s

‑do‑ 34s

(4) 9/70 dt. 24‑8‑70 20s .

After the petitioner had received the refund which it had claimed under these forms, it received a notice from the Superintendent, Central Excise Circle B' dated 30‑6‑1972 calling upon it to pay a sum of Rs. 1,95,600. The notice was issued on the basis of a report of the Central Testing Laboratory on the samples of the yarn exported by the petitioner, and we may explain here that the rate of duty on yarn varies with its quality and the better the quality the higher is the rate of duty, therefore the duty is higher on the higher counts of yarn And according to this notice, the petitioner had made mis‑declara tions on its A R forms inasmuch as the yarn shown thereon, on which refund had been paid, was of higher counts than the yarn exported. The petitioner contested the demand and insisted on a second test for which it forwarded additional samples of the yarn exported. And here we may clarify that by this time the dispute was narrowed to the A R forms bearing Nos. 1/70 and 9/70, and the petitioner had also deposited the amount claimed under the aforesaid notice. Now, according to the petitioner, its claim was fully established by the second test of its samples, but the Assistant Collector, disregarding the results of this test and going exclusively by the first test, dismissed its claim by a very cursory order. Accordingly, the petitioner went in appeal before the Collector (respondent No. 2) but this appeal was dismissed by an order dated 15‑10‑1973. Therefore, the petitioner filed a revision before the third respondent which was dismissed on 31‑10‑1974 by another cursory order. Hence, this petition.

2. Mr. Habibur Rehman submitted that the respondents had acted illegally in rejecting the second report of the Central Testing Laboratory which was a Government institution. But, as we pointed out, tile two reports issued by this laboratory were inconsistent, and the 2nd and 3rd respondents had preferred the first report. Now, the third respondent's order as we observed was very cursory, but the second respondent has given reasons for his view, and in this connection he has observed that the samples sent by the petitioner for the second report had been tampered with. Learned counsel challenged this finding and at his request we had sent for the record. The record bears out the view of the second respondent that the samples had been tampered with, because there is a note to this effect by the clerk who had received these samples. But, according to the learned counsel, this was a false note, and the subsequent notings in the file proved that the note about the samples having been tampered with was false. But, he was not able to refer us to this subsequent note. He however, drew our attention to the fact that pages 9 and 10 of the file sent to us were missing. Further, according to the petitioner, these pages 9 and 10 supported its claim, and when we enquired as to how the petitioner could have known the contents of such confidential documents, Mr. Habibur Rehman's reply was that the petitioner had taken photostat copies of these pages and many other pages. We are disturbed by the fact that these two pages are missing from the file forwarded to us, and, according to the learned counsel, this was by itself sufficient to prove the mala fides of the respondents. But, as submitted by Mr. Naimud din, the plea of mala fides could have been advanced but was not raised either in appeal before the Collector or in revision before the third respondent, therefore, on this short ground, it is not available to the petitioner in this petition. Secondly, how did the petitioner obtain photostat copies of confidential documents And if it could do so, how can we be certain of the causes for the disappearance of pages 9 and 10 of the file Accordingly mala fides cannot be inferred from the mere fact that the two pages in the file sent to us are missing.

3. However, although the petitioner has not alleged mala fides in the Tribunals, he had insisted that the results of the second test should have been followed, and in this connection we would quote again from the grounds stated by the petitioner in the appeal which are the same as in the revision. The two specific grounds read as follows

"3. That the learned Assistant Collector has erred is not considering the correct procedure of determining the correct count of yarn as laid down in the Pakistan Standard P S 119‑1960 and The Extra Standard published in 1958.

4. That the learned Assistant Collector failed to consider that by simple mathematical calculation the average count of yarn, as tested, comes to 36s as declared on A R 4 No. 2/70 dt. 9‑1‑1970. He also failed to consider the average count of yarn, as tested, comes to 20‑5s. while the count of yarn declared on A R No. 50/69 dt. 15‑2‑69 is 21s. This is well within the internationally recognised limits of tolerance. He also failed to consider the Test Reports of the Buyers which proved beyond doubt that the count of yarn supplied and also declared on A. R. 4 were exactly the same as received by the Buyers."

As to the first ground, we do not know what the Pakistan Standard is, nor was learned counsel able to give us any assistance on the question. Similarly, the other ground refers to "recognised limits of tolerance", but as far as we could gather from learned counsel, this had reference to trade usages. In any event, learned counsel did not even attempt to show us how the Collector or the third respondent would be bound by the method of determining the correct count of yarn, as laid down in the Pakistan Standard or how these Tribunals would be bound by what is described as the "recognised limits of tolerance" for the purpose of determining the quality of yarn. In these circumstances, to say the least, there is absolutely no material before us on which we can hold that the second and third respondents should have accepted the second report of the Central Testing Laboratory and not its first report.

4. Additionally, whilst the third respondent's order is a very cursory order, the second respondent has given reasons for the view taken by him with regard to the results of the two tests. He has observed in this connec tion

"Taking both the results into consideration and deriving average therefrom the consignment No. 1 can be classified as medium No. 4 as coarse whereas the consignments at S. No. 2 as fine and S. No. 3 as medium."

Mr. Naimuddin referred us to these observations and stated that the Collector had taken the second test into account. Mr. Habibur Rehman's only reply was that the observations quoted were not correct because the second respondent had erred in considering at all the results of the first test. In other words, according to learned counsel, the second and third respondents should have rejected the results of the first test completely and should have accepted the results of the second test only. But, here Mr. Naimuddin referred us to another difficulty. The results of the second test show that the counts of yarn were even higher than those claimed. To say the least, this is difficult, to understand. And not merely is the matter technical. but, in the circum‑ D stances discussed, it is clear that the ‑concurrent findings of the Tribunals) against the petitioner are based on evidence.

5. Finally, in an attempt to pursuade us to hold that the results of the first test were not fit to be accepted at all, Mr. Habibur Rehman pointed out that the yarn in dispute had been exported to Poland and the report. of the polish importers supported the results of the second test and the clam of the petitioner. That may be so, but even Mr. Habibur Rehman did not contend that the collector or the third respondent were bound by the report of a foreign buyer.

6. No further argument was advanced and it is clear that the petitioner's contention that the respondent should have gone exclusively by the first laboratory test turns entirely on the appreciation of evidence. As there is ample evidence in support of the finding of the 2nd and 3rd respondents, Mr. Naimuddin submitted, on the basis of the observation of Hamoodur Rehman, C. J., in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commis sioner and others (PLD 1973 SC 236), that no case has been made out for interference in the writ jurisdiction of this Court. The submission is correct. The petition turns on disputed questions of fact. At the highest, it can only be contended that the respondents 2 and,3 could have taken a different view of the evidence before them. It cannot conceivably be argued that it is a case of no evidence or of a perverse appreciation of the evidence. Accordingly, the petition is without merit and dismissed In limine.

S. A. H.

Petition dismissed.

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