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Constitutional Petition No.1051 of 1978, decided on 13th January, 1986.

‑‑‑Art.199‑‑Customs Act (IV of 1969), Ss. 193 & 196‑‑Constitutional jurisdiction, exercise of‑‑‑Custom duty‑‑Assessment by Assistant Collector of Custom‑‑Remedy of appeal available but not availed of‑‑Effect‑‑Where alternate remedy of appeal was available to a petitioner, non‑availing of such remedy, held, would render constitutional petition to be not maintainable.

‑‑‑Art. 199‑‑Customs Act (IV of 1969), Ss. 193 & 196‑‑Constitutional jurisdiction, exercise of‑‑Assessment of Custom duty‑‑Prayer for declaration that Custom Authorities had abused their powers by disposing of car for realization of Custom duties, held, could not be granted in constitutional jurisdiction of High Court as petitioner had alternate remedy to approach appellate and revisional authorities who could grant such relief.

‑‑‑Ss. 25 & 30‑‑Constitution of Pakistan (1973), Art. 199‑‑Customs duty‑‑Assessment‑‑Mode of assessment‑‑Validity‑‑Value of any imported, goods, held, would be taken to be the normal price, which such goods, would fetch on a specified day in open market between buyer and seller independent of each other‑‑Normal price of any goods could be determined when such goods have been delivered to the buyer‑ Assessment in accordance with such mode would be valid and same could not be challenged in constitutional jurisdiction of High Court.

Faizuddin for Petitioner.

Muzaffar Hassan and Muhammad Maqsood for Respondents.

Date of hearing: 13th January, 1986.

‑The petitioner imported Mazda 929 car into Pakistan. He placed an order in the year 1977 but as the manufacturer had not manufactured the car in the year 1977 the car was imported into Pakistan in January 1978. The Customs Authorities assessed the custom duties on the basis of actual payment made by the petitioner to the manufacturer. U.S 3,419 were paid by the petitioner as is clear from the invoice Annexure "D". The grievance of the petitioner is that the duty cannot be charged on this amount as he had placed order in 1977 and respondent No.3, the agent of the manufacturer had given the price of the car as 1924 U.S. plus U.S. 491 as freight and all other sub‑charges. It is, therefore, contended that the duty could be levied on this amount but the Customs authorities have levied the duty on the actual payment made by the petitioner which is against law. The learned counsel for the petitioner was confronted with the proposition that he had an alternate remedy by way of filing Appeal and Revision to the hierarchy of Courts established under the Customs Act but he has not availed that remedy. The learned counsel has submitted that as respondent No.3 had to be impleaded as respondent which could not be done before the Customs Authorities, therefore, this Constitutional Petition has been filed. This contention has no force. The respondent No.3 is not necessary party for bringing the cause before the Customs Authorities. The respondent No.3 was an agent of the Principal. The price of the car was paid directly by the petitioner to the manufacturer. The assessment has been made by the Assistant Collector of Customs against which order the appeal is competent anti the learned counsel for the petitioner has conceded to this proposition, but he made the same submission for not availing the alternate remedy. ‑The petition is to be dismissed on this short ground.

2. Even otherwise the relief claimed by the petitioner cannot be granted in the extraordinary Jurisdiction of this Court. In the amended petition the petitioner has prayed as under:‑--------

"(1) That it be declared that the Customs had abused their powers and disposed of 929 Mazda Car otherwise than through a Public Auction and misled this Hon'ble Court throughout by making false statement in the nature of perjury.

(2) It may further be declared that the conduct of respondent No.3 was equally questionable and desultry.

(3) The respondents may be directed to refund to the petitioners U.S. 3,419 in the interest or justice or in lieu thereof a New Mazda 929 at Rs.1,28,000 be supplied to him through adjustment of the dollars paid.

(4) Grant costs and such other relief as this Hon'ble Court be pleased to accord."

The learned counsel for the petitioner does not press his prayer No.3 and submitted that a mere declaration that the Customs had abused their powers and disposed of the car may be granted to the petitioner. The prayer No.2 cannot be granted as the respondent No.3 is not a public functionary and, therefore, no relief under Article 199 can be granted against it. A mere declaration in the terms claimed by the petitioner in prayer No.l cannot be granted as the petitioner could approach the appellate and revisional authorities and an appropriate relief could be granted by these authorities. They are the authorities of record and the petitioner could produce sufficient evidence and contentions in support of this plea. The petition on this score is also not maintainable. The proper course for the petitioner for the recovery of the amount was to file a suit but that has not been done.

3. Even on merits the petitioner has no case. It is admitted by both the learned counsel that sections 25 and 30 of the Customs Act, 1969 are relevant for the purpose of levying the duty. Section 25 of the Customs Act provides that value of any imported goods shall be taken to be the normal price, that is to say, the price which they would fetch on the date referred to in section 30 on a sale in open market between a buyer and seller independent of each other.

Subsection (2) lays down that normal price of any imported goods shall be determined when the goods have been delivered to the buyer.

According to section 30 the value of and the rate of duty applicable to any imported goods shall be the value and the rate of duty in force. In case of goods cleared for home consumption under section 79, on the date on which a bill of entry is presented under that section and in case of goods cleared from a warehouse under section 104, on the date on which a bill of entry for clearance of such goods is presented under that section.

It is also an admitted fact that the bill of entry presented by the petitioner shows the amount of U.S. 3,419. The Customs authorities have demanded the duty on this amount. In fact the Customs authorities have assessed the car on the basis of I.T.P. as under:

F. O. B. U.S. 2,578

Freight U.S. 491

‑‑‑‑‑‑‑‑‑‑‑‑

U.S. 3069

‑‑‑‑‑‑‑‑‑‑‑‑‑

that is less than the amount mentioned in the bill of entry. The petitioner has admitted that he had actually paid U.S. 3,419 as the price of the car to the manufacturer but he contends that as he had placed the order in the year 1977 but the car could not be manufactured in that year, therefore, the price mentioned by the respondent No.3 in their letter should be the price on which the Customs authorities could have assessed the duty. This contention has no force. Sections 25 and 30 are quite clear and there cannot be any other interpretation of these provisions. It has been urged by the learned counsel that the sales department of respondent No.3 had assured that they were duly authorised by the Government to disclose the value of all types of Mazda Cars which were imported into Pakistan from Japan, and the price was indicated at U.S 1,924 in addition to the payment of U.S. 491 as ocean Freight totalling U.S. 2,415. Any undertaking given by the respondents No.3 does not bind the respondents 1 and 2. The assessment is to be made in accordance with law. The petitioner has failed to show that the respondents 1 and 2 have made assessment in contravention of any law.

4. For the aforesaid reasons 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 13‑1‑1986 and the above are the reasons in support of the same.

A . A . / M‑29/ K .

Petition dismissed.

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