' KHILJI ARIF HUSSAIN, J.---The petitioner in this petition sought declaration that the petition consignment of white sugar is exempted from and not liable to be levied any import duty whether 10 per cent ad valorem or otherwise under the Customs Act and further sought declaration that the price fixed by the respondent in exercise of powers under clause (1) of section 25(b) of Customs Act, 1969 is without lawful authority and of no legal effect.
2. The brief facts for the purpose of disposing of the case are that by Notification No.SRO 505(1)/1988 dated 26-6-1988 amended by Notification No.SRO 992(1)/91 dated 3-10-1991 importion of sugar into Pakistan was exempted from levy of duty under Customs Act. The petitioner entered into a Contract with M/s. Cargil International S. A. Of Switzerland for import of 12000 metric tonnes white refined sugar from Thailand at a price of US $292.50 per metric tonne. After obtaining import licence on 25-11-1991 for importation of the consignment in Pakistan, petitioner opened letter of credit on 22-11-1991. On 27-11-1991 it appears in the newspaper that Economic Coordination Committee of the Cabinet (hereinafter referred to "ECC") had decided on 26-11-1991 to raise the duty on importation of sugar from 15 per cent to 25 per cent and item that ECC has directed that the letter of credit opened to date should be protected Notification pursuant to the decision of ECC was issued on 27th November, 1991 by the Ministry of Finance in exercise of powers under section 19 of the Customs Act amending SRO 505(1)/88 and imposed 10 per cent ad valorem duty on the importation of the sugar however, exempting letter of credit opened upto 25th November, 1991 from the affect of duty. By this petition the petitioner questioned the levy of the duty on the ground that the petitioner's letter of credit established on 26th November 1991 was exempted from the levy of duty imposed by Notification dated 27th November 1991 in terms of ECC decision. The petitioner also questioned the fixation of the price of sugar in exercise of powers under section 25-B of Customs Act vide Notification dated 29th October, 1991 is without lawful authority and of no legal effect and that the petitioner is entitled to clear the consignment at the declared value.
3. Heard Mr. Munib Akhtar, learned Advocate for the petitioner, Mr. Haider Iqbal Wahniwal, learned Advocate for respondent No.3, and Mr. Raja M. Iqbal learned Advocate for respondent No.4.
4. Mr. Munib Akhtar, learned Advocate for the petitioner argued at length that the Notification dated 29th October, issued in exercise of powers under clause (1) of section 25-B of Customs Act 1969 fixing the value of white refined sugar origin Malaysia and Thailand at US $ 331 metric tonnes has been issued without any material before the authority concerned and the said price has been fixed arbitrarily and capriciously. Learned Advocate drawn our attention to Annexure-A of the counter affidavit filed by the respondent and argued that the alleged price has been fixed on the basis of prevailing price of sugar at Malaysia whereas the petitioner has imported the goods from Thailand.
He argued that no material has been placed on record by the respondent to demonstrate that on the given date the price of white refined sugar in Thailand was about US $331 per metric tonne. The learned Advocate further argued that ECC being the highest body in his meeting dated 26th November, excluded application of enhance duty on the letter of credit established up-to-date and as the petitioner had established the letter of credit on 26th November 1991 therefor not liable for the payment of enhanced duty from 15 per cent to 25 per cent.
5. On the other hand, Mr. Haider Iqbal Wahniwal, learned Advocated for respondent No.3 argued that in exercise of power under section 25-B Customs Act, Customs Authorities had notified the fixed value of the goods and the petitioner is liable to pay the same. He argued that the said price was fixed by the respondent after taking into consideration required material.
6. In reply to the contention of the learned Advocate about the exemption of the letter of credit establish up -to-date of decision of ECC, learned Advocate argued that respondent issued Notification dated 27-11-1991 in exercise of powers conferred under section 19 of the Customs Act and in the said Notification it is clearly stated that the amendment will not be applied to the import against the letter of credit opened and notified to State Bank of Pakistan on or before 25th November, 1991.
7. Learned counsel for the petitioner strongly relied upon the observation of a Division Bench of this Court in the case of Passco Hardware Company v. Government of Pakistan (PLD 1989 Karachi 621) wherein it was observed that a notification under section 25-B of the Customs Act could always be impugned if it Could be demonstrated that the power conferred by the above provisions had been exercised arbitrarily or capriciously and there should be some nexus between notified value under section 25-B and the actual market value under section 25.
8. On the other hand learned counsel for the respondents relied upon the pronouncement of the Hon'ble Supreme Court in the case of the Collector of Customs Karachi v. New Electronics (Pvt.) Ltd.
(PLD 1994 SC 363) wherein it was held that:-- "I have given my serious thought to the above submission and I am of the view that reasonableness of the various valuation fixed for various items of goods cannot be subject-matter of an enquiry in exercise of Constitutional jurisdiction by the High Court. The above controversy requires thorough factual probe into the matter on the basis of the material to be brought on record by the parties. The remedy, if any, of the respondents is to make representation through their association to appellant No.3 and/or to approach any other competent forum. I am, therefore, not inclined to accept the above contention."
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9. We have carefully gone through both the above judgments, which incidentally have been authored by the same eminent Judge (Ajmal Mian, J.) and with profound respects has not been able to discren any inconsistency between them. In our humble view the pronouncement of the Hon'ble Supreme Court refers of the general rule as to the limits of powers of judicial review whereas the observations made in the Passco case speaks of the exception to the rule. Indeed it is well established that a Court of judicial review does not sit in judgment over exercise of power by an administrative functionary and does not normally enter into resolution of factual controversies.
Therefore, there could be no cavil with the proposition that in judicial review proceedings the Court will not proceed to determine the reasonableness of the valuation undertaken by a statutory functionary.
10. At the same time, however, a well-recognized exception to the above general rule is that when such statutory functionary acts in perverse, arbitrary or capricious manner in the performance of his duties a Court of judicial review can always step in to direct him to do what the law requires to be done or to declare his action without lawful authority. It may also be pertinent to mention that in Passco case itself it was laid down that the burden to prove that the impugned action was perverse or arbitrary is on the person who alleges it to be so and there is always a presumption in favour of the validity of the notification under section 25-B and the petition was eventually dismissed in limine.
11. In the instant case though the petitioner alleged that the respondent had only taken into consideration the price of white sugar prevailing in Malaysia, he has not placed any material whatsoever on record, which could even prima facie indicate the prevailing market price in Thailand. In the circumstances, it could not be expected from the Court to undertake a valuation of such price on its own nor could it be inferred that the valuation made was perverse or arbitrary.
12. Coming to the second contention of the learned Advocate for the petitioner suffice to say that the decision of increase in the import duty was taken in the meeting on 26th November 1991 and in the notification issued pursuant to the decision, it was clearly stated that only the letter of credit established and notified up to 25-10-1991, i.e. Up-to-date of the decision will not be affected by the increase of duty and as the petitioner had established letter of credit on 26-11-1991 he is liable to pay increase in the import of duty.
13. For the above reasons, the petition has no merit and is accordingly dismissed with no order as to costs. We would also like to appreciate the assistance rendered by learned counsel, particularly Mr. Munib Akhtar, in representing their respective point of view.