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Constitutional Petition No. D-520 of 1984, decided on 18th June, 1984.

--Art.9--Customs Act (IV of 1969)--Pakistan Custom Tariff--Chemicals falling under P.C.T. Heading 29.3 or 34.02--Question of classification held, could be resolved by subjective examination of ingredients of each consignment and was more eminently suitable for adjudication by hierarchy of tribunals set up under Customs Act, 1969 and rules framed thereunder--High Court in constitutional jurisdiction could not hold enquiry about technical aspects.

Ijaz Hussain Zaidi for Petitioner.

S. Irtiza Hussain Zaidi for Respondent.

Date of hearing: 18th June, 1984.

--By this common order we intend to dispose of the above five petitions which are fixed for Katcha Peshi as they are between the common parties and involve common question of fact and law. The petitioners have imported Tetrapropylene Benzene, Sulphuric Acid as per averment contained in para 2 of the petition. In all the above petitions the petitioners have prayed for identical relief.

It will suffice to quote the relief prayed for from Constitution Petition No.D-520 of 1984:

"It is, therefore, prayed that this Hon'ble Court tarry be pleased to summon the record arid proceedings of the case from the respondents and after giving a hearing to the parties, be pleased to order as under:-

(i) to declare that Tetrapropylene Benzene, Sulphuric Acid 97 % is liable to be cleared under P C T Heading 29.03;

(ii) to direct the respondents to allow arid release the 982 drums imported under Import Licence No. B103470 which arrived on the vessel ss. UCKA under Bill of Lading No. KKR-546 under I.G.M. No. 990/84 dated 13-5-1984 under PCT Heading 29.03 in parts;

(iii) to allow costs for the petition; and

(iv) to grant such other/further/additional relief(s) which may be deemed just and proper in the circumstances .of the case."

This Division Bench through a common judgment dated 8-3-1989 disposed of Constitution Petition No.1078 of 1975 and 50 other connected petitions involving the question whether the chemical subject-matter of the above writ petitions fell under PCT Heading 29.03 or under PCT Heading 34.02. It may be advantageous to reproduce hereinbelow relevant portion of para 8 of the above judgment which reads as follows:-

"The question whether the chemical falls under PCT Heading 29.03 or under PCT Heading 34.02 can be resolved by subjective examination of the ingredients of each consignment. In our view, the instant cases cannot be equated with the cases of steel pipes and steel tubes referred to in the above Karachi judgments and of the Hon'ble Supreme Court judgment. There the question, as observed hereinabove, was whether in the context of item. No. 128(h) of the Import Control Trade Order the exclusion of G.I. pipes and black pipes shall include the tubes which were separately mentioned in the same item, for the purpose of Free List. We may again observe that the consignments have been imported from six different countries of origin and, therefore, the matter cannot be generalized and the appropriate forums for adjudication upon the question, whether particular chemical falls under a particular PCT Heading on the basis of its ingredients is a question more eminently suitable for adjudication upon by the heirarchy of the tribunals set up under the Customs Act and the rules framed thereunder. We have refrained ourselves from expressing our view on the material furnished by the petitioners and the respondents on the controversy, whether the chemical falls under PCT heading 29.03 or PCT heading 34.02 as the parties may be prejudiced. However, we may observe that the Collector of Customs cannot solely rely upon the opinion allegedly conveyed by the Director of the Customs Co-operation Council in his letter dated 17th November, 1980 as it may be a piece of material which is 'to be considered along with the other material which the parties may produce before the Collector of Customs."

From the above-quoted portion of the judgment, it is evident that we were of the view that the question whether particular chemical falls under a particular PCT heading on the basis of its ingredients is a matter of subjective examination and is a question more eminently suitable for adjudication upon by the heirarchy of the tribunals set up under the Customs Act and the rules framed thereunder. We are still of the view that the proper remedy for the petitioner is to get adjudication on the above question by the forums provided under the Customs Act and this Court cannot while exercising, writ jurisdiction hold enquiry on the above technical aspect.

However, it was contended by Mr. Zaidi learned counsel for the petitioner that the respondent be directed to release the goods on the basis of the payment of the customs duty under PCT Heading 29.03 and for the balance a bank guarantee be accepted which was done in the above petitions decided by this Court and the case was remanded to the Collector. We are not inclined to issue any direction to the respondent as we are not admitting the above petitions. It is for the respondent to decide this question.

Mr. Zaidi has also submitted that the respondents are not drawing the samples from the consignments for the purpose of chemical analysis in order to determine under which PCT heading the chemical would fall. Mr. Kazi Abdul Shakir, Law Officer of the customs department is present in the Court. We enquired from him whether the respondent would be ready and willing to draw a sample from each of the consign ments for getting it referred for chemical analysis, his reply was in the affirmative. The above statement of Kazi Abdul Shakir has been brought on record.

For the aforesaid reasons the petitions are dismissed in limine.

M.B.A. Petition dismissed.

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