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Constitutional Petition No. D-281 of 1984., decided on 31st October, 1984.

---Art. 9--Customs Act (IV of 1969), S. 32--Show-cause notice--Despite request of consignee, material on basis of which show-cause notice issued, not provided by Custom authority--instead of that, final notice and assessment order issued--Final order, held, passed without lawful authority and of no legal effect in circumstances--Case remanded to Assistant Collector Custom to show such material to consignee in order to enable him to produce evidence in rebuttal, if any.

M/s. Olympia Industries v. Collector of Customs C.P.No. 538 of 1984 rel.

S. Tariq A. Husain for Petitioner.

S. Shamim Raza for Respondent.

Date of hearing: 31st October, 1984.

This petition has been filed by the petitioner challenging the order dated 29-8-1981 passed by respondent No.2 main taining a show-cause notice demanding a sum of Rs.10,600 as the alleged amount of Custom duty on the consignment which was imported by the petitioner from Singapore.

2. The brief facts leading to the filing of the above petition are that the petitioner established a letter of credit on 21-7-1977 through United Bank Ltd. in favour of K.K.I. Company P.T.E. Ltd. Singapore for the import of wood and timber sawn hardwood at the rate of U.S. 167.58 per ton. The above consignment arrived at Karachi on or about 19-9-1977 and the same was cleared after final assessment and payment of 100% duty on 25-10-1977. Respondent No.2 served a notice dated 7-4-1979 alleging therein, that upon investigation they found that the normal value of the goods was at U.S. .203 per ton as against the above-declared invoice value of U.S. 167.58. The petitioner was called upon to pay the alleged levy amounting to Rs.10,600 under section 32 of the Customs Act, 1969. The above notice was resisted by the petitioner in reply thereof it was averred that the valuation declared by the petitioner was the correct valuation of the imported goods. It is the case of the petitioner that they requested respondent No.2, who was hearing the case after the issuance of show-cause notice to furnish those material on the basis of which the above show-cause notice was issued. This request was repeated by the petitioner through their letters dated 26-4-1979 and 4-7-1981. Instead of receiving the requisite information, the petitioner were served with a final notice and the assessment order dated 29-8-1981 which was received on 24-12-1983. The petitioner being aggrieved by the above order and the notice the petitioner have filed the present petition.

3. In support of the above petition, inter alia, it has been contended by Tariq, learned counsel for the petitioner that there was no material before respondent No.2 on the basis of which it could have been concluded that the price declared by the petitioner was not the normal price of the consignment in question and that in any case the petitioner was not given an opportunity to examine the material and to produce the material in rebuttal to the material relied upon, if any, by respondent No.2. It has further contended by him that factually the original assess ment was not provisional as was averred by the respondent but it was a final assessment and therefore respondent had no authority to reopen the assessment.

4. In our view the petition can be disposed of on the above first contention subject to the right of the petitioner to agitate whatever pleas they wish- to raise before respondent No.2. It is an admitted position that despite the request made by the petitioner they were not informed of the material, on the basis of which the show-cause notice was issued alleging therein that the price declared by the petitioner was not the normal price. A Division Bench of this Court in C . P . No.538 of 1984 (M/s. Olympia Industries v. Collector of Customs) has held in its judgment dated 26-9-1984 that a consignee is entitled to be shown the material on the basis of which the Customs Authorities conclude that the price declared by the consignee was not the normal price, in order to enable him to produce the material in rebuttal. This was not done in the present case as observed hereinabove.

5. In the result we allow the petition and declare the order dated 29-8-1981 to have been passed without lawful authority and of no legal effect but we remand the case to respondent No.2 with the direction t-o show the material on the basis of which the above show-cause notice was issued to the petitioner in order to enable them to produce evidence, if piny, in rebuttal. The cash amount deposited by the petitioner shall be refunded to them by the Nazir of this Court. Respondent No.2 is directed to decide the case within two months from the date of the receipt of copy of this judgment and the petitioner shall appear before respondent No.2 on 8 11-1984.

M. A. K . Case remanded.

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