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Writ Petition No. 204 of 1961, decided on 1st May, 1962.

Ss. 198, 167 (9B) & 167 (8)‑Notice served on Clearing Agents‑Not binding on importer of goods‑Imposition of penalty under Ss. 167 (9B) d 167 (8) on importer under such circumstances‑Not sustainable.

Ss. 29, 30, 167 (8) & 167 (9B)‑"Real value" of goods under S. 30‑Normal price ascertained on basis of prevailing price in Pakistan though sufficient for assessing amount of Custom duties cannot furnish proof sufficient to sustain charge of untrue statement under S. 39 so as to justify conviction under Ss. 167 (9B) & 167 (8).

Messrs Eastern Rice Syndicate v. Central Board of Revenue P L D 1959 S C 364 ref.

A. M. Haider Mota and Abdur Rab for Petitioner.

A. T. M. Mostafa for Respondents.

SATTAR, J.

‑This is an application for a writ of certiorari for quashing Order No. 467, dated the 10th December 1959 passed by the Assistant Collector of Customs, Chittagong as modified by the Collector of Customs in Order No. 143, dated the 4th May 1960 and further modified by the Central Board of Revenue in Order No. 204/61, dated the 5th July 1961.

2. In August 1957 the petitioner imported about 428 lbs. of nylon laces seconds from New York to Chittagong. The price mentioned in the original invoice and the Bill of Exchange was 51 cents per pound totalling 21777 dollars for the entire consignment. The consignment arrived at Chittagong on or about the 31st of July 1957 ss Ines. The petitioner filed the Bill of Entry and the usual VBF 6A declaration and stated therein the price to be 51 cents per pound c & f. The Customs Authorities accepted the valuation and released the goods on or about the 12th August 1957. After a lapse of more than 26 months a notice was served on Messrs Anwar Asgor Brothers who acted as the Clearing Agents of the petitioner for the said consignment to show cause why higher assessment of Customs duties should not be levied and a penalty imposed. Thereafter, on the 10th of December 1957, the Assistant Collector by the impugned order imposed a penalty of Rs. 4,000 under section 167 (9B) and a penalty of Rs. 3,000 under section 167 (8) of the Customs Act. The order reads as follows:

"M/s. O. K. M. Bawaney & Sons, Chittagong imported the above goods valued a Rs. 3,102 c 4 f anti declared their value as given in the invoice at 51 per lb. c & fin the B/E. The goods were assessed according to their declaration under B/E Cash No. 734, dated 15‑8‑57.

(2) Post investigation into the case revealed that the fair measure of the normal price of the goods under section 30 of the Sea Customs Act would be 51 per lb. c & f. This price has been ascertained on the basis of similar other imports from the same suppliers. The invoice price is, therefore, fraudulent. The mis-declaration of the value of the goods in the B/E caused short realisation of Government revenue to the extent of Rs. 724 and Rs. 279 as customs duty and sales tax respectively. That also constituted an offence under section 39 of the Sea Customs Act liable to penal action under section 167 (9‑B) ibid.

(3) The total c & f value of the goods as has been ascertained under section 30 of the Sea Customs Act comes to Rs. 3,102 as against the total c & f declared value of Rs. 1,048. The goods worth Rs. 2,054 c & f imported by way of under‑valuation is treated to have been imported in contravention of section 3 (iii) of the 1. T. C. Act read with section 19 of the Sea Customs Act liable to penal action under section 167 (8) of the Sea Customs Act.

(4) The importers or their clearing agents did not submit explanation against this office show cause notice No. 724/AP/Val/58‑59/10724‑25 Cus., dated 23‑11‑59.

(5) I, therefore, order that a personal penalty of Rs. 4,000 (Rupees four thousand) only be imposed on the importers under section 167 (9‑B) of the Sea Customs Act and another personal penalty of Rs. 3,000 (Rupees three thousand) only be imposed on the importers under section 167 (8) of the Sea Customs Act. These personal penalties and the short realised amounts of the customs duty and sales tax as stated in para. 2 and demanded under office letter No. 724/AP/Val/ 58‑59/10724 Cus., dated 23‑11‑59 should be paid immedi ately."

3. The petitioner preferred an appeal against the order to the Collector of Customs and challenged its legality. The Collector found the order of the Assistant Collector to be correct but reduced the penalties imposed under sections 167 (9‑B) and 167 (8) to Rs. 1,000 and Rs. 2,000 respectively.

4. The revision application preferred by the petitioner was rejected by the Central Board of Revenue on merits but the total penalty of Rs. 3,000 was reduced to Rs. 2,700.

5. An affidavit‑in‑opposition has been filed on behalf of the respondents by Mr. A. Salam Kauser, Assistant Collector of Customs. In this affidavit, the impugned order has been sought to be justified on the basis of materials obtained after enquiry under section 30 of the Sea Customs Act. It has been said that enquiries revealed that identical goods were sold by the same supplied at the rate of 1‑51 dollars per pound and, therefore, the statement of the petitioner in the declaration that he pur chased the disputed consignment at the rate of 51 cents per pound w4s fraudulent and, therefore, attracted the provisions of sections 167 (9‑E) and 167 (8). The respondents have also filed a supplementary affidavit in which it has been asserted that from an affidavit sworn on 24‑1‑62 by M. M. Ahmad, the then Indentor and Agent of Messrs Mill Cotton Exporters, Co. Inc., New York, U. S. A. the supplier, it will be evident that the goods in question were actually purchased by the petitioner at the rate of 1,51 dollars per pound and not 51 cents per pound. The original affidavit of M. M. Ahmed has been annexed to this affidavit.

6. It is evident from what has been stated above that the main basis for the Assistant Collector's order was the normal price ascertained after enquiries made under section 30 of the Customs Act. The order in question no doubt also indicates that this price has been ascertained on the basis of similar other. imports from the supplier. The petitioner was not personally served with any notice and we are not prepared to hold that the notice served on the Clearing Agents can bind the petitioner. A The petitioner did not get any opportunity to controvert the materials on which reliance was placed for holding that he was guilty of untrue statement in regard to the value of the imported goods. The petitioner by his letter dated the 24th of June 1961 addressed to the Joint Secretary, Government of Pakistan, asked for information regarding such materials but received no reply. Indeed, it is difficult in these circumstances to reject the argu ment of Mr. Mota that the petitioner has been denied a fair hearing. The affidavit of the Indentor on which reliance has been placed was not even in existence when the impugned order was passed and was sworn to only after the present Rule was issued. If the Indentor had furnished any, information which however the order does not indicate the petitioner was entitled to challenge. and controvert it. He did not get any such opportunity. The normal price ascertained on the basis of the prevailing price in this country at the relevant time, though sufficient for assessing the amount of Customs duties, cannot furnish proof sufficient to bring home a charge of untrue state ment under section 39 so as to justify conviction under section 167 (9‑B) or prove that the invoice had been deliberately is under‑valued so as to bring the petitioner within the mischief of section 167 (8) of the Sea Customs Act. Such charges cannot be established otherwise than by furnishing proof of the correct or prevailing commercial price to the country of origin at the time of import. Messrs Eastern Rice Syndicate v. Central Board of Revenue (P L D 1959 S C 364).

7. For the reasons stated above, we make the Rule absolute and quash the orders of the respondents. The Assistant Col lector may however proceed with the case against the petitioner in accordance with law and in the light of the observations made above.

In view of the facts of this case, we leave the parties to bear their own costs.

‑I agree,

K. B. A.

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