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Constitutional Petition No.590 of 1983, decided on 15th October, 1986.

---S.32--Constitution of Pakistan (1973), Art.199--Liability to .pay customs duty--Constitutional jurisdiction, exercise of--High Court in exercise of constitutional jurisdiction, held, could interfere only in cases where orders passed by Tribunals below were based on no evidence or such Tribunals had no jurisdiction in matter--Customs Authorities having jurisdiction in matter of charging customs duty on imported goods, after fully appreciating evidence on record came to conclusion that goods imported by petitioner were chargeable under heading 73.13 of Pakistan Customs Tariff--Conclusion of Customs w Authorities even if wrong, afforded no ground for interference by High Court in its constitutional jurisdiction.

1982 P Cr.L J 258 and P L D 1959 Lah. 955 ref.

Muneer A. Malik for Petitioner.

Liaquat Merchant, Deputy Attorney-General for Respondents.

Date of hearing: 15th October, 1985.

.--The petitioner imported 719 metric tons of mild steel slabs in December, 1981. According to the petitioner he was to fabricate goods from this imported material for supply to the Pakistan Steel Mills Corporation. The goods were inspected by the Custom Authorities and on 1-2-1982 the Respondent No.3 assessed the goods under PCT 73-07 but duty was paid in terms of SRO 547(1)/79 at 30% and a Bank Guarantee for 20% was furnished. On 21-4-1982 the Respondent No.3 issued a show-cause notice to the petitioner wherein it is stated that the description of the goods imported in the subject case has been mis-declared. The consignments were checkered steel plates of heading 73-13 of, the PCT chargeable to 70% customs duty and 10% sales tax as against mild steel slabs of heading 73.07 chargeable to 50% customs duty. The petitioner submitted his reply. The Respondent No.3 passed an order on 30-6-1982 (Annexure 'E') and came to the conclusion that the petitioner deliberately and purposely contemplated a fraud to cheat the Government in its legitimate revenue and misrepresented the facts to the Central Board of Revenue in order to avail undue benefits. He misdeclared the imported chequered plates as M.S. Slabs. The petitioner being aggrieved against this order filed an appeal before the Respondent No.2. The Respondent No.2 made further enquiry by making a reference to the Pakistan Steel Mills Corporation. The enquiry was conducted and a report was submitted to the Respondent No.2, who by his order, dated 15-1-1983 dismissed the appeal. Against that decision the petitioner went in revision before the Respondent No.1 but the same was also dismissed.

2. Learned counsel for the petitioner has submitted that there was no mis-declaration by the petitioner. The goods imported were mild steel slabs with rolled edges with thickness of 66 mm maximum, length 6,000 mm minimum and width 1,000 mm minimum. In support of such contention the petitioner has filed certificate of supplier but that was not considered by the respondents.

3. The respondents have denied the averments made by the petitioner in the petition on merits as well as on law. It is contended that the petitioner had not given the true declaration and when subsequently, it was found that the goods were chargeable under heading 73.13 of the Pakistan Customs Tariff, notice was issued. The Respondent No.2 as an abundant caution made further enquiry and according to the petitioner himself the goods were to be supplied to the Pakistan Steel Mills and, therefore, the goods were examined by the experts of the Steel Mills and they came to the conclusion that they were not slabs but chequered sheets.

Learned counsel for the petitioner has referred to para 10 of the order passed by the Respondent No.2 which reads as follows:

"As regards the charge of misdeclaration, the reports of Central Testing Laboratories, Russian experts and of Dr. Nasim go to show that the distinction between plates and slabs is very thin and narrow and there is ample room for genuine misunderstanding as to their correct definition in terms of the Tariff.' The mill test certificate given by the manufacturers of an international repute is itself indicative of a very thin line of demarcation between plates and slabs. The Board is, therefore, inclined to give the appellants benefit of doubt and absolve them of the charge of misdeclaration, and accordingly remit the fine and penalty imposed on them. The duty will, however, be charged at the standard rate and they will not be entitled to the benefit of S.R.O. 547(1)/79, dated 2-6-1979. The appeal is allowed to this extent only."

It is, therefore, contended that the Respondent No.2 has himself come to the conclusion that there was very thin and narrow distinction between plates and slabs and there is ample room for genuine misunderstanding as to their correct definition in terms of the Tariff. In view of such observation the respondents fell in error in holding that the goods fell'-under heading 73.13.

4. In order to appreciate the contention of the petitioner, it is necessary to refer to certain facts and documents which form part of the record. The matter was referred to Chairman Pakistan Steel Mills for physical examination of the goods. The goods were examined by the Engineers of the Steel Mills and they confirmed that the goods are checkered steel plates. The matter was again referred to the Chairman of Steel Mills and the goods were again examined by the experts and operational heads of the concerned department and according to the experts' opinion after examination of the goods, the goods were not M.S. Slabs as claimed by the petitioner and their conclusion was that the goods in question being flat rolled products with semi-finished edges and checkered network were checkered plates with irregular edges. The petitioner has stated that the Central Testing Laboratory was of the opinion that these were slabs but the respondents have not admitted /accepted the opinion of the Central Testing Laboratory on the ground that such information was of a general nature.

Learned counsel for the petitioner has submitted that as there was dispute about the classification the matter should have been referred to the Chief Controller of Imports and Exports and it was his function to classify the goods but the respondents have not admitted this fact and in fact the duty of the Chief Controller of Imports and Exports is to classify the goods for purposes of import rate control. In such circumstances, it is contended by the Respondents that there was no contravention of I. T. C. classification.

Learned counsel for the petitioner has referred to 1982 PCr.LJ, 258 in support of such contention, wherein it has been observed that since the Customs Department itself was not clear as to classification of the items the respondent department should have made reference to competent authority under Imports and Exports (Control) Act, for classification of the items in question instead of taking inconsistent pleas.

The authority is inapt as the respondents have not taken inconsistent pleas in the present case. No doubt they had cleared the goods in the first instance but subsequently, they issued notice under section 32 of the Customs Act which they were competent to do and the goods were examined by the experts of the Steel Mills.

The learned Deputy Attorney-General has referred to Pakistan Customs Tariff at page 208 heading 73.07. The description of the goods is mentioned as Blooms, Billets. Slabs and Sleet- bars including tinplate bars), of iron or steel; pieces roughly shaped forging, of iron or steel and heading 73.13 relates to the sheets and plates, of iron or steel, hot-rolled or cold-rolled:

(a) Rolled but not further worked, of a thickness of more than 4.75 mm;

(b) Rolled but not further worked, of a thickness of 3 mm or more but not more than 4.75 mm;

(c) Rolled but not further worked, of a thickness of less than 3 mm;

(d) Tinned;

(e) Other.

The rate of the duties have been mentioned in the respective columns.

The learned counsel has referred to the Inspection Note of Soviet Expert of Pakistan Steel Mills which reads as under:

"The material is Steel Slabs in its present shape, haring the following characteristics:-

(1) These are roughly rolled with round edges,' fishtails, way surface and Rolling marks, as per the enclosed Drawing No. SIL/2.

(2) The dimensions of the Slabs are uneven having width 1100-1180 mm, length 6000-6500 mm and thickness 60-63 mm.

In order to make these Slabs into 60 mm Checker plates, the supplier is required to make arrangements to fabricate these as per Inspection Report, dated 20-12-1981 arid Drawing according to tender.

He has also referred to a telex of the supplier wherein it has been certified that these slabs fall under tariff No.73.07 and not 73.13 which was wrongly mentioned in our invoice.

The certificate of the Soviet Expert does not indicate that the goods are not sheets but as the petitioner was required to supply goods in accordance with their tender, therefore, the defects were pointed out by the experts.

As regards the telex of the supplier, it may be pointed out that the petitioner had himself produced the invoice alongwith the goods and it clearly shows Tariff No.73.13.190. This document has been produced by the learned Deputy Attorney-General. The petitioner has not filed this document alongwith this petition though he has admitted that this was the invoice issued by the supplier. Thus this document itself destroys the case of the petitioner. Subsequent, document of the supplier may be a procured one. It is also relevant to refer to the report submitted by Dr. Muhammad Nasim, Operational Head, Quality Control Department of Pakistan Steel Mills in which it has been stated that the first impression after looking on these goods was that they were checkered plates having dimensions;

Width 1080--1160 mm

Thickness 60--63 mm

Length 6000--6500 mm

The conclusion which was drawn by the expert is that in the light of above analysis, it is concluded that the flat-rolled products with semi-finished edges and checkered net work on one side lying in the warehouse are checkered plates with irregular edges.

5. Learned counsel for the petitioner has stated that the respondents have misread the evidence but the evidence has been discussed by the respondents and we have referred to such evidence in the earlier part of the judgment. It cannot be said that the finding of the Tribunals below is based on no evidence. At the most it can be urged that the conclusion was not correct but simply because another view was possible that is no ground for interference in the extraordinary jurisdiction of this Court. Learned counsel stated that the petitioner was entitled to the concessional rate of duty and it was not right for the customs authorities to revoke the authority mentioned in the S.R.O. referred to above. The respondents have held that the said S.R.O. is not applicable to the goods of the petitioner. The learned counsel has referred to P L D 1959 Lah. 955. In which it has been held that in the absence of any definition of the word 'manufacture' this was covered by the dictionary meaning. The dictionary meaning of manufacture is invent and fabricate. In fact the petitioner's main case rests on the appreciation of the evidence taken by the respondents to determine the description of the goods. Evidence has been recorded by the respondents and they have come to a conclusion. The learned Deputy Attorney-General has stated that if the goods are raw material then reduced duty is leviable but if some process has taken place then the goods would be dutiable under Tariff 73.13 which has been done in the present case.

The official respondents have the jurisdiction in the matter. They have assessed the evidence and in fact in order to come to a conclusion the Respondent No.2 has also recorded the evidence. Under Article 199 of the Constitution this Court would not enter into the realm of facts because it is the function of he Tribunals below. The Court would interfere only in cases where the impugned orders are based on no evidence or the Tribunals blow had no jurisdiction in the matter. The conclusion may be wrong but this is no ground for interference by this Court.

In the present case the respondents have appreciated the evidence and we will not sit over the judgment of the respondents merely because some other view is possible.

The petition has no force and the same stands dismissed with no order as to costs.

The petition was dismissed by a short order, dated 15-10-1985. The above are the reasons which we have recorded in support of such order.

H . B . T . / S-13 / K Petition dismissed.

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