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Art. 199 and Pak1stan Customs Tariff‑Writ jurisdiction‑Question of fact‑Whether stuff imported falls under heading 39.01(a) or 39.01(c) of Pak1stan Customs Tariff‑Can be verified correctly after examin ing same chemically‑Petitioner not preserving any sample of stuff- Question involved one of fact‑Held, not possible at writ stage and in such jurisdiction to go into such question of fact.‑[Question of facts.].

Muhammad Sadiq for Petitioner.

Muhammad Sharif Janjua and Mumtaz Hussain Bhutta, Inspector (Legal), and Raiz Ahmad (Appraiser, Custom Post) for Respondent.

Date of hearing : 27th September, 1981.

The petitioner challanges the various orders passed by the respondents, holding that he was liable to pay customs duty under heading 39'01 of the the Pak1stan Customs Tariff for the Urea Moulding Compound imported by him.

2. The facts of the case are that the petitioner imported 96 bags of urea moulding compound (Urea Resin) against an import licence from Japan vide bill of entry dated 23rd September, 1978. The respondent No. 3 assessed A the goods at 120 % duty under head 39'01 (A) of the Pak1stan Customs Tariff with the following order :‑

"take B. G. for defferential duty and make immediate reference to Karachi Customs House."

3. The petitioner furnished the necessary B. G. (Bank guarantee) of the differential amount of Rs.24,843 on 3rd October, 1978. On 3rd April, 1979 the respondent No. 3 addressed a letter to the Manager, United Bank Ltd. Brandreth Road, Lahore enforcing the said guarantee. The petitioner then came to know of the liability and filed an appeal before the Collector, Customs which was rejected vide order dated 14th February, 1980. A revision petition also failed vide communication dated 17th November 1980.

4. It is contended by the learned counsel that the stuff imported by the petitioner fell under heading 39'O1(C) of the Pak1stan Customs Tariff and; therefore, it is to be assessed at 40 % duty. He referred to a parallel case of Messrs Qureshi Enterprises, Shahalam Market, Lahore, where the same assessing authority assessed the same product at 40 %.

5. The contention raised on behalf of the respondent is that a notice has been ordered to be issued to Messrs Qureshi Brothers so as to reopen their case also. The record produced by the respondent, however, discloses that though an order to that effect had been passed, yet no notice had been sent to that importer. The petitioner further states that the presence of notice was only a ruse just to camouflage the situation and that the respon dents would not take any action against Qureshi Brothers for some unexplain able reasons. He further states that as a case could be reopened within 2 years and only a few months are left before limitation will be over, the con cerned officials are either deliberately delaying the matter or think that order is valid.

6. After hearing the learned counsel at length and going through the relevant record and material, I find that this petition has no merit. It is to be noted that item 39'01 is divided into 5 parts. Only Parts (C) and (D) are assessable to 40 % duty whereas the rest is subject to 120 % Ad valorem duty. Part (C) relied upon by the learned counsel for the petitioner reads as under :-

"Synthetic Bond (e.g. Durite') a phenol formaldehyde resin, in liquid or powder form, containing minute quantities of hexamethylene terramine."

The full description of this item is as given in section 7 of the Brussel's Nomenclature is as under :‑

"Phenoplasts:

This group comprises a wide range of resinous materials derived from the condensation of phenol or its homologues (cresol, xylenol, etc.), or substituted phenols, with aldehydes such as formaldehyde, acetaldehyde, furfuraldehyde, etc. The nature of the products varies according to the conditions under which the reaction is conducted and whether it is modified by the introduction of other substances."

7. The other parts assessable at 120 % duty include phenoplasts and Aminoplasts. The Aminoplasts are the amines or amides condensed with aldehydes (formaldehyde, furfuaidehyde, etc.). The most important of those are urea formaldehyde and thiourea‑formaldehde (urea resins). The respondents have also produced a photo extract from the Con densed Dictionary giving the description of phenol‑formaldehyde resins. A photo copy of the relevant portion from Technical Terms, 11 Edition has also been produced saying that phenol‑formaldehydes resins is made by reaction of phenol and formaldehydes.

8. The learned counsel for the petitioner is not in a position to she from any document that the material imported by his client is phenol formal dehydes resin. The Collector on the other hand found specifically that the material imported by the petitioner was as under:‑

"Phenoplast are derived from the condensation of Phenol with Formal dehyde whereas Aminoplasts are formed by condensation of Amines with Formaldehyde and are therefore shown in the description of goods under heading No. 39'01 as different commodity from each other. The Phenol Formaldehyde resins (Phenoplasts) and not the Aminoplasts are included specifically under sub‑head 39'01 (C) and as such the imported material is not classifiable under the said sub‑heading but falls under heading 39.01 (A) assessable to duty 120 %."

As said above, the material in question could be chemically examined to verify its ingredients correctly but the petitioner, did not preserve any sample of it. It is, therefore, not possible at this stage and in this jurisdiction to l go into this question of fact.

In view of the above, there is no merit in this petition and the same is dismissed leaving the parties to bear their own costs.

K. H. A. Petition dismissed‑

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