Find a Lawyer

‑‑ Art. 199 read with Customs Act (IV of 1969), S. 156 (9)‑Imports and Exports (Control) Act (XXXIX of 1950), S. 3 (3) and Import Policy (January‑June), 1970. item No. 38 (a) and Annexure XVI Confiscation of goods‑Word "accessory" used in item 38 (a) of Import Policy‑Definition‑"Crossal Varga Accessory" imported by petitioner not capable of being used independently but to be fitted with carding rqachine achieving better quality and more produc tion‑Held, included in term "accessories" used in item 38 (a) and does not fall within categories of any of items specified in Annexure XVI‑Order confiscating such accessory as prohibited item‑Held, without lawful authority.

Ballentine's Law Dictionary, Third Edn. ref..

Abdul Aziz Khan for Petitioner

A. Aziz Munshi, Dy. A.‑G. for Respondents. '''

Date of hearing : 26th August, 1981.

AJMAL MIAN, J.‑This petition is directed against the three orders, namely, Deputy Collector of Customs order dated 13th November, 1971 the Collector of Customs appellate order dated 19th September, 1972 and the Board of Revenue's Revisional Order dated 28th July, 1973.

The brief facts leading to the filing of the above Petition are that the petitioners imported "Crosrol .Varga Accessory" under import licence issued under Item No. 33 (a) of List III. It may be observed that it seems that by mistake in the import licence item‑ 33 (a) has been mentioned instead of item 38 (a) which is the relevant item in the import policy for January to June, 1970 gazetted in the Pakistan Gazette, Extraordinary, dated 1st January, 1970. The above item was imported by the petitioners under four different consignments, the first consignment was allowed by the Customs Authorities without raisin any objection. However, in respect of the second consignment the respondent raised the objection that the item in question is not covered under the description of item 38 (a), namely parts and accessories of machinery and mill work. Respondent, 3 the Deputy Collector, Customs issued a show‑cause notice dated 14tb July,, 1971 to the petitioners, calling upon them to show‑cause why action under section 156 (9). of the Customs Act, 1969 read with section 3 (3) of I & Control) Act, 1950 should not be taken as no valid licence for the import of the above item was present alongwith the bill of entry. Upon the receipt of the above show‑cause notice, the petitioner filed objections. However, the Deputy Collector of Customs through his aforesaid orders dated 13th January, 1971 held that the item in question is not part of the accessories of carding engines and, therefore, he confiscated the above item under section 156 (9) of the Customs Act of 1969 read with section 3 (3) of. Import and Export Control Act, 1950 and gave option to the petitioners to obtain the release of the goods on payment, of fine of Rs. 6,500. The petitioners being aggrieved by the above order filed an appeal which was dismissed by respondent 2, that is, the Collector of Customs (Appeal) by his aforesaid order dated 19th September, 1972. The petitioners aggri eved by the above order filed revision which was too dismissed by respondent 1, that is, the Central Board of Revenue through the aforesaid order dated 26th July, 1973. The petitioners being aggrieved by the above order have filed the present petition.

2. (a) In support of the above petition Mr. Abdul Aziz Khan, learned counsel for the petitioners, has made the following submis sions :‑

(1) That the term accessory will Y.include the item in question arid, therefore, the respondent erred in not taking into consideration the above term accessories used in item 38(a) of the import policy of the year in question.

(2) That under the import policy in question from the categories 'of 'parts and accessories of machinery" only those items have been excluded which are . mentioned in Annexure XVI to , the Gazette.

(3) That the words "parts and accessories" are to be read disjunctively as both have their own independent connotations meanings.

(b) In support of the above contentions Mr. Abdul Aziz Khan has referred to item 38 (a) as well as Annexure XVI to the import policy in question which reads as follows :‑

"38 (a). Parts and accessories of a machinery and mill work (exclu ding item detailed in Annexure XVI)." Annexure XVI" List of items import of which will not be permissible against maintenance, spares and accessories/components for assembly/manufacture of machinery.

Item No. 1. Textile looms 'and spinning frames assembled.;..

2. ... .......................... "

We have also referred to the definition of the word "accessory" given in the Ballentine's Law Dictionary, Third Edition, which describes then word "accessory" as follows :‑‑

"A subordinate working part of a larger machine or instrumentality, for example, the windshield wipers on an automobile. A person who for some manner is connected with a crime, either before or after its perpetration, but who is not present at the time the crime is committed."

(c) From the impugned order, it is evident that the item, in question cannot be used. independently but is to be fitted‑ with the main carding machine. The effect of fitting the above item is to give better quality and more production. In this view of the matter we are inclined to hold that the term "accessories" used in item 38(a) will include the item in question. Furthermore, Annexure XVI attached to the Gazette containing the import policy in question only excludes textile looms and spinning frames assembled/unassembled from the list of items, import of which was not permissible against maintenance, spares and accessories/components for assembly/manufacture of machinery. It is apparent that the item in question does not fall within the categories of any of the items specified in the aforesaid Annexure XVI to the Gazette.

3. In view of the above discussion, the impugned orders cannot be sustained and, therefore, we declare the same as being without lawful authority. There will be no order as to costs.

S. Q. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.