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Civil Petition for Special. Leave to Appeal No. K‑160 of 1977, decided on 3rd April, 1979.

(On appeal from the judgment and order of the High Court of Sind at Karachi dated the 26th July 1977 in Constitution Petition No. 1193 of 1974).

----Art. 185(3) ‑Question of fact, determination of‑Leave to appeal stage‑Petitioner, granted rebate of duty paid on cotton yarn and fabrication used for manufacture of cotton bags supplied to a foreign country‑Subsequently on information received from firm supplying such cotton yarn to petitioner, Customs authorities demanding refund of certain amount calculated on basis of difference between price actually paid and price claimed for refund‑Contention regarding supplier firm having wrongly described specification of cloth actually supplied to petitioner in order to save duty and cloth supplied to foreign firm being same as claimed for not supported by production of copy of order for cloth placed by petitioner on supplier firm‑Contention further involving determination of a question of fact as to whether or not specification of cloth obtained by petitioner. from supplier firm actually used in manufacture of bags exported ad same on which he obtained rebate and such question not to be gone into and decided at leave to appeal stage, case held, not fit for grant of leave.

Mansoor Ahmad Khan, Advocate and Vakil Ahmad Kidwai, Advocate‑on -Record for Petitioner.

Nemo for Respondents

Date of hearing : 3rd April, 1979.

.‑--The petitioner's firm M/s. Manzoor sons, Karachi, received an order from Italy for the supply of 3,01,000 cotton bags made of gray cloth of the following specifications;

< [if supportLists]>(1) 16s/16s, 48 x 52.

(2) 21 s/21 s, 60 x 60.

The petitioner made an application for the grant of rebate of duty paid on cotton yarn and fabrication used for the manufacture of the aforesaid bags. The Central Board of Revenue granted the rebate as prayed. The petitioner exported the bags and obtained a rebate amounting to Rs. 80,759.16. It was subsequently found that instead of the specified cloth mentioned above, the cloth used by the petitioner in the manufacture of bags was 14s/14s, 40 x 40. Therefore the petitioner was required to refund the amount of Rs. 80,759.16. Aggrieved by this demand he filed an appeal before the Collector, Central Excise and Land Custom, Karachi, which was dismissed on the 27th of June 1973. He then filed a revision before the Federal Government which too was dismissed on the 17th of August 1974. The petitioner the filed a writ petition before the High Court which also was not successful. Hence the present petition.

The main point stresses by the learned counsel for the petitioner before us was that the bags exported by him were checked by the relevant authorities during the manufacturing as well as at the packing and shipment stages and certificates were granted to confirm that the goods mentioned therein were in accordance with the specification mentioned in the notification whereby rebate had been granted to the petitioner.

It appears however, that subsequently the Excise and Custom Authorities made an inquiry from Nishat Sarhad Textile Mills Limited. Karachi, from whom the petitioner's company bad made purchases of cloth for the purpose of manufacturing the aforesaid bags and were informed that the cloth supplied by the said mills was known as No. 4440‑A and its specifi cations were 14s/14s, 40 x 40. It was on obtaining this information that the respondent authorities had demanded the refund of the rebate allowed to the petitioner.

It is contended by the learned counsel for the petitioner that probably it was the Nishat Sarhad Textile Mills that had wrongly described the specification of the cloth supplied by them to the petitioner in order to save duty and that in fact the cloth supplied by the said mill was of specification 16s/16s, 48 x 52 and not 14s/14s, 40 x 40. The learned counsel stressed that greater reliance should have been placed by the concerned authorities on the certificates issued by their own staff on checking the petitioner's bag at different stages. He could not, however, show a copy of the order for the cloth placed by the petitioner on Nishat Sarhad Textile Mills, to enable us to verify the specifications of the cloth that he had actually ordered for that mill. In any case the contention raised by him involves determination of a question of fact, i.e. as to whether or not the specification of the cloth obtained by the petitioner from the aforementioned mill and used in the g manufacturing of the bags exported by him was the same which he had bee allowed the rebate. Such a question of fact cannot be gone into and decide at this stage. We do not therefore consider it to be a fit case for grant of leave. The petition is consequently dismissed.

Petition dismissed.

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